Non-EEA spouse applying for indefinite leave to remain

[Shlumaan]

hi there , My name is Shlomi. I'm an Israeli citizen, I've lived now for over 10 years in the UK and work full time here. I'm married to a German national who also works and lives here for as many years as I do. We have three kids in the UK. My 5 year temporary residency is about to expire on the 3rd of January 2019. I'm trying to find information about the process and the timeline for applying for indefinite leave to remain based on my marriage to an EU national:
1. Am I required to take any exams? If so, do I have to sit them before applying?
2. Can I start the application and/or exams after the expiration of my current residence card? if not how early and how late can one apply under my circumstances?
3. Will I be able to apply myself or is it recommended to have a professional/lawyer to do that?
4. can you please post links to the relevant government page to my circumstances?

Many thanks,
Shlomi

[kamoe]

I'm married to a German national who also works and lives here for as many years as I do. We have three kids in the UK. My 5 year temporary residency is about to expire on the 3rd of January 2019. I'm trying to find information about the process and the timeline for applying for indefinite leave to remain based on my marriage to an EU national:

When did you get married? And, is your current 5-year residence document a Residence Card issued as the family member of a EU national? You might want to get Permanent Residence (EU route, £65 ), not Indefinite Leave to Remain (non-EU route, £2.5K).

1. Am I required to take any exams?

Not for Permanent Residence or Indefinite Leave to Remain. But if your ultimate goal is to apply for British Citizenship, then yes, but not until are making the citizenship application, not now. (You need to get Permanent Residence or ILR first, and hold it for a year, before you can apply for citizenship).

2. Can I start the application and/or exams after the expiration of my current residence card? if not how early and how late can one apply under my circumstances?

Since you are married to an EU national you can legally stay in the UK without a valid residence document, so in theory, you can apply after your current document expires. The only downside is if you need to prove your right to work between your current document's expiration date and your new document's issue date.

3. Will I be able to apply myself or is it recommended to have a professional/lawyer to do that?

This is up to you. Many people do this without professional help and are successful. Many people do not have the patience and prefer to hire professional help. I'd say, get familiar with the forms and the process, and see if you feel confident handling checklists and documents. A detail-oriented personality helps.

4. can you please post links to the relevant government page to my circumstances?

Depending on your answer to my first question. I suggest you find out here by answering the questions as appropriate: https://www.gov.uk/settle-in-the-uk

[Shlumaan]

Good evening Kamoe and thanks much for a swift and comprehensive response. To answer your question, we got married in July 2013. Does that change any aspect of your answers? Looking at the passport the residency is, I quote, 'residence card of a family member of an eea national'.

Now that you've elucidated the difference between permenanet residency under eu law and ilr under British law that changes everything... Of course I will opt for the cheaper one. Which form is it and can you attach a link since there are so many categories out there? I think I can manage doing it myself.

Here is a sequel question :our family travel aboard by car (to germany) every Xmas. As explained the residence card expires on the 3rd of January. Can I travel first and deal with the application upon return safely?

Thanks ever so much. Shlomi

[kamoe]

Good evening Kamoe and thanks much for a swift and comprehensive response. To answer your question, we got married in July 2013. Does that change any aspect of your answers?

It could make a difference. You are eligible for Permanent Residence under EU rules if you've lived with your spouse for a continuous period of 5 years, and if they've been a qualified person (e.g. working full time, studying, looking for work, self-sufficient) throughout those 5 years. This means you could be eligible now for Permanent Residence, no need to wait for January.

Having said that, keep in mind the most recent timelines posted in this forum: eea-route-applications/pr-processing-ti ... 9-420.html, to estimate how long the process for PR will take (1-2 months). You can request passports back in the meantime, though.

Looking at the passport the residency is, I quote, 'residence card of a family member of an eea national'.

Yeap, that's the one.

Which form is it and can you attach a link since there are so many categories out there?

Here: https://www.gov.uk/apply-for-a-uk-resid ... dence-card

However, please note that any card issued under EU regulations between now and March 2019 will be valid only until 31 December 2020, after which every card holder needs to switch to Settled Status: https://www.gov.uk/settled-status-eu-citizens-families

You could potentially wait a few months without renewing your card and apply directly for Settled Status in March, again, with the downside of having a small gap that might or might not cause you problems when needing to prove in a straightforward way your right to live and work in the UK. Again, as the married spouse of a EU national, you have the legal right to residence and work even without a valid document. Whether or not postponing your application until March waiting for Settled Status is a good idea is a separate topic in itself, and you can find several recent examples in the forum, of people asking that very thing.

Here is a sequel question :our family travel aboard by car (to germany) every Xmas. As explained the residence card expires on the 3rd of January. Can I travel first and deal with the application upon return safely?

In theory, yes. Provided you travel together with your EU Spouse and show your passports+marriage certificate at the border, then you have the right of re-entry to the UK. However I have not done this myself so cannot comment on how smooth or fast this goes. As with the question above, there are a few recent posts about this in this forum I believe.

Thanks ever so much. Shlomi

Any time.

[Shlumaan]

Gosh every question opens another immigration pandora box...

If sounds like I should wait till march as my work isn't going to change and no one will ask to look at my immigration status between January and March. Apart from that is there any other risk of disadvantage to opting for a settled status after march and not a residence card before March?

Will a settled status lead in the same way to eligibility for citizenship in the UK? How long will I have to wait before I can become a citizen?

Is there an advantage to a settled status as far as brexit goes?

Again, could you please send a link to the settled status form if already available online?

Thanks a lot

[Casa]

1. Am I required to take any exams? If so, do I have to sit them before applying?

One correction to Kamoe's earlier post (for the benefit of anyone reading this thread).

ILR under the UK Immigration Rules requires B1 level English + The Life in the UK test.

PR under EEA Regulations doesn't have the same requirement.

[kamoe]

One correction to Kamoe's earlier post (for the benefit of anyone reading this thread).

ILR under the UK Immigration Rules requires B1 level English + The Life in the UK test.

PR under EEA Regulations doesn't have the same requirement.

Really? I checked the required documentation for ILR and did not find any mention of this! Thanks. Well, in any case, does not seem to apply for the OP

[secret.simon]

In any case, B1 language test and LITUK are a requirement for naturalization, even for applicants via the EU PR route.

[kamoe]

Is there any other risk of disadvantage to opting for a settled status after march and not a residence card before March?

In theory, no, but as I said, its a separate discussion in itself. You might want to check these two posts:

eea-route-applications/my-5-years-eea-f ... 64678.html

eea-route-applications/eea2-residence-t ... 64509.html

Please note that from some comments, it looks like a beta process for Settled Status will be available towards the end of 2018 (although no official confirmaiton or timeline is yet known).

Will a settled status lead in the same way to eligibility for citizenship in the UK?

Yes.

How long will I have to wait before I can become a citizen?

The same one year as with PR or ILR.

Is there an advantage to a settled status as far as brexit goes?

Settled Status and Permanent residence are equivalent statuses, with the caveat that Permanent residence holders will need to switch to Settled Status (free to do if you have PR) before 31 December 2020 if they want to continue living in the UK. So advantage is you go through one process not two.

Now, if by the 31 December 2020 you have already for British Citizenship, then you do not need to switch to Settled Status at all.

Hope this makes sense?

Again, could you please send a link to the settled status form if already available online?

https://www.gov.uk/settled-status-eu-ci ... ligibility

[Shlumaan]

I think I'm running out of questions, so yes, it all starting to make sense. A couple of other clarifications though :

1 is there any ambiguity in the post brexit UK whether someone like me could or could not apply for UK citizenship? I'm just wondering if then UK settlement is a stronger card then eu residence card. Not sure if my question makes sense...
2. My wife is applying soon for UK citizenship. Does that change any parts of our discussion thus far and/or your advice?

Thanks a lot.

[kamoe]

I have been meaning to reply to this and then did not have the time, so apologies.

If at all it is still useful:

1 is there any ambiguity in the post brexit UK whether someone like me could or could not apply for UK citizenship? I'm just wondering if then UK settlement is a stronger card then eu residence card. Not sure if my question makes sense...

Settled Status and Permanent Residence are two different names for equivalent things, really (please note we are referring to Settled status, not just Pre-settled status; and Permanent Residence, not just to having a Residence Card). Between Settled Status and Permanent Residence (as in a rap battle ), no one is stronger than the other in terms of how eligible you are to apply for British citizenship. Having at least one of them is a requisite for citizenship, and either of them will be valid; again, with the caveat that the residence card is valid only until December 2020 (which is plenty of time, to be honest).

So if you want to apply for British citizenship before December 2020 they are exactly the same thing.

2. My wife is applying soon for UK citizenship. Does that change any parts of our discussion thus far and/or your advice?

This is the reason I did not respond earlier, that answer being, I'm not 100% sure. There is this thing called the 'Lounes case', which was decided a year ago, in which the fact of being dual EU / UK national complicated things for the residency rights of your Non-Eu family members (argument being if you are a UK citizen, then your family has no right of residence under EU rules and have to reapply under British rules). I think... in the end the case was resolved in favor of dual nationals that had retained their EU nationality to claim their family members' right to remain in the UK based on EU law... BUT only under derivative rights of residence, which, turns out, does not count towards the 5 years required for permanent residence, complicating matters for family members who were yet to apply for PR (easy, huh?).

There is a very long thread here: eea-route-applications/do-dual-eu-uk-ci ... 28292.html

which I have not been able to finish reading in full (I went up to a third of it), where some advice was circulated last year for EU national to better await for their family members to acquire Permanent Residence under EU law, before acquiring themselves British citizenship, to avoid the above conundrum.

...but I believe/I have understood that people have been able to apply for RC and PR cards for their family members, being dual nationals, although I do not know the circumstances, or how many cases are refused/granted.

Can anyone confirm if it is still advisable that the EU national awaits for their family members to have already acquired permanent residence before applying for British citizenship? Or is this not an issue anymore? (I did try to find a conclusion in the thread above but the masses of messages really makes it difficult.)

If you cannot get a confirmation from anyone else in this forum, I would say, maybe wait until you have Permanent Residence before your wife applies for British citizenship, if there is no urgency.

[Shlumaan]

Hi Kamoe, and thanks once more for your responding so quickly.

So I've read all your links regarding the debate between settlement and PR under EU law. I came out of it far more confused regarding this and thought it is probably much more straight forward to pursue the same route I am already on, i.e. renewing my residency card and worry about UK citizenship before 2020. However, I then read all your reflections in the last post just now, and having had a chat with my wife, more facts reveal themselves which exacerbate the situation.

Firstly, last year my wife applied and received her PR in preparation for her citizenship application. She took the Life in the UK test and passed and was intending to apply for citizenship soon. She says soon and adds before March 2019. The reason is that her first nationality is German and she read somewhere that she could keep her German passport so long as she receives a dual nationality within another EU country. After March 2019 it may well be that she will lose her German nationality. Hence the urgency to apply soon. She proposes the following: for me to apply for a PR in January 2019 and for her to send her own citizenship application around February 2019. Will it work or Is that a foolish plan? what are the risks? what are the alternatives?

[Shlumaan]

and excuse me if I throw yet another quick question on the same topic: I notice on the EEA PR form that my wife when applied could have included me as part of the application, couldn't she? I don't know when exactly it was but it might have been too early. The added question is if there isn't away to add myself 'as it were' to her application retrospectively? or would I now need to send my own application separately?

[kamoe]

Firstly, last year my wife applied and received her PR in preparation for her citizenship application. She took the Life in the UK test and passed and was intending to apply for citizenship soon. She says soon and adds before March 2019. The reason is that her first nationality is German and she read somewhere that she could keep her German passport so long as she receives a dual nationality within another EU country. After March 2019 it may well be that she will lose her German nationality. Hence the urgency to apply soon. She proposes the following: for me to apply for a PR in January 2019 and for her to send her own citizenship application around February 2019. Will it work or Is that a foolish plan? what are the risks? what are the alternatives?

It seems your only reason to wait until January to apply is that you will travel to Germany and back for Christmas? If so, you could apply for Permanent Residence now, as it seems you are already eligible (being married to an already PR holder). You can always request your passports back while your application is considered, so you can travel in time for Christmas. By the time you are back in the UK your PR would be very close to being issued (current timeline between 1 and 3 months).

Regarding the wider issue of risks of your wife applying for British Citizenship while your PR isn't issued yet, I have opened a new thread asking just that, I thought it was best that way, since I do not have the answer, and it seems to be an issue for many people (including myself next year). The question deserved good visibility: eea-route-applications/should-a-eu-nati ... 65416.html

[kamoe]

and excuse me if I throw yet another quick question on the same topic: I notice on the EEA PR form that my wife when applied could have included me as part of the application, couldn't she?

Probably, but don't dwell on that. The main thing is, you can apply, and...

The added question is if there isn't away to add myself 'as it were' to her application retrospectively?

Yes! The application will ask you details of your "sponsor" (your EU family member, in this case, your wife), and this includes her permanent residence certificate number, and/or the case number she was assigned when she completed her process (which you can find in all emails/correspondence the HO sent to her at the time). This will "link" your application to hers, and it will be clear that you are applying on the basis of your marriage to her. In the Settled status route, they will apply the same principle.

[Shlumaan]

Hey Kamoe I hope someone shed some light on the dual citizenship conundrum. Well done for posting a clear new thread on the matter which I will follow closely.

Meantime, yes, my reluctance to apply now is the planned travels for Christmas. My wife seems to have decided to hold off her citizenship anyway as it appears the German government has proposed a draft law to give a transition period of about 2 years to obtain UK citizenship while retaining German nationality. Even if this is not 100% certain her PR gives us some assurance for the future no matter what. That gives me more time doesn't it? Should I rush it now and then ask for my passport back or travel for Xmas return before RC expires and apply then?

Lastly is there an electronic way of applying or must I print out 85 pages on my home printer??

Good luck with your situation next year...

[NikiGio]

Meantime, yes, my reluctance to apply now is the planned travels for Christmas. My wife seems to have decided to hold off her citizenship anyway as it appears the German government has proposed a draft law to give a transition period of about 2 years to obtain UK citizenship while retaining German nationality. Even if this is not 100% certain her PR gives us some assurance for the future no matter what. That gives me more time doesn't it? Should I rush it now and then ask for my passport back or travel for Xmas return before RC expires and apply then?

Hi All,

I thought I'd add to the Pandora Box! Given the implications, I thought it appropriate to throw in a comment about the German citizenship, as I've read a lot of discussions about this hot topic in another forum - I haven't read this entire thread in detail so forgive me if I mention something which has already been discussed.

Shlumaan - as your wife is a German citizen, you and her know about the restriction on dual nationality for German citizens, who at the moment are only allowed to have dual nationality with countries members of the EU. So you know that if this rule stands, she may not be able to naturalise in time to benefit from this rule before March, and that after the UK leaves the EU other rules may apply.

The draft legislation in Germany (Brexit transition act), which would extend the period in which dual citizenship can be acquired until December 2020, *would only apply if there is a deal*. So unfortunately the deadline for dual citizenship is still March 2019 at the moment, because there is no certainty at the moment about whether a deal will be struck or not.

If there is no deal and the Brexit transition act becomes law in its current form, then your wife would probably need a Beibehaltungsgenehmigung in order to retain her German citizenship.

If your wife doesn't want to risk losing her German citizenship in case of no-deal, it could still be possible for your wife to get citizenship before March - be aware that she also needs to have the ceremony before Brexit - but there is not much time left. I understand she has already passed the LIUK test, which is positive. Has she already done the English test too?

She needs to have the Beibehaltungsgenehmigung before she obtains the second citizenship, i.e. before she has the ceremony - it costs a few hundred euros. I have no idea how difficult it is to get it granted, I think it also depends on which country you live in. And you are currently not able to apply for it because the UK is still part of the EU. Some more info re Beibehaltungsgenehmigung can be found here: https://www.bva.bund.de/DE/Themen/Staat ... -node.html

I'm aware that your case is complex given your need to get PR/RC as a non-EEA citizen, the implications of your wife's citizenship on your own possible future British citizenship application given the Lounes case outcome, and your family's Xmas travel plans - but thought I would summarise the comments made in the other forum, where German citizens are still being urged to naturalise before March given the uncertain outcome relative to the draft German legislation.

[kamoe]

it appears the German government has proposed a draft law to give a transition period of about 2 years to obtain UK citizenship while retaining German nationality.

Makes sense.

Even if this is not 100% certain her PR gives us some assurance for the future no matter what.

Yes, in general terms, one of you having PR is a good enough status.

Should I rush it now and then ask for my passport back or travel for Xmas return before RC expires and apply then?

Up to you. I would say, depends on how ready you are now/how easy it is for you to gather the required documents. It varies. It took me three weeks to gather the required documents to replace a lost RC (but this is someone having to prove durable non-married status, so a bit more complex). If you can be ready with all your documents within the next two or three weeks, I would say apply now. That would give you time to request your passports back before Christmas (takes about 1-2 weeks, and after you enroll your biometric details). But if by the beginning of November you are not ready yet, then maybe don't rush it, as your passports can get delayed in coming back to you on time.

Lastly is there an electronic way of applying or must I print out 85 pages on my home printer??

Nope. No online form for non-EU family members who are applying separately from their EU family member, I'm afraid. Good news is that you only need to print the sections that are relevant to you. Not so good thing is that you need to read carefully the form to identify which sections those are. But it's doable, as all sections clearly tell you what is the next section relevant to your case depending on your answers.

[kamoe]

I thought I'd add to the Pandora Box!

LOL, this has to be the most exciting thread I've ever posted on. It's like a thriller! You never know what's going to happen next!

The draft legislation in Germany (Brexit transition act), which would extend the period in which dual citizenship can be acquired until December 2020, *would only apply if there is a deal*. So unfortunately the deadline for dual citizenship is still March 2019 at the moment, because there is no certainty at the moment about whether a deal will be struck or not.

WOW. Just...

I hope there is a deal after all. I knew Brexit was a mess, but personally had no idea of all the implications of a no-deal scenario!

[NikiGio]

LOL, this has to be the most exciting thread I've ever posted on. It's like a thriller! You never know what's going to happen next!

Lol that's Brexit for you!!!

[NikiGio]

Aware that your case is complex given your need to get PR/RC as a non-EEA citizen, the implications of your wife's citizenship on your own possible future British citizenship application given the Lounes case outcome, and your family's Xmas travel plans -

Just to modify the above slightly - I found a blog article this morning which indicates that, following the Lounes case outcome, EU nationals can now safely naturalise and their families' status will be safeguarded - provided the relationship existed before 31.12.2020 and continues to exist.

Discussion on this is in Kamoe's separate thread:

eea-route-applications/should-a-eu-nati ... 65416.html

This I think simplifies at least part of your situation Shlumaan!

Also, I've seen there's an info session for German nationals tonight in Manchester and one on 17/10 in London - don't know your location but have search online, it's called 'Information Sessions for German Nationals – various dates and locations'. If mods allow, link is:
third party weblink removed by moderator

[Shlumaan]

Hey guys you are a bunch of god-sent angels who make a lot of sense in a world of fools. Sorry I'm not trained at copy-paste so I can't respond directly to your comments.

I must say, I thought this time around, since I got married about 5 years ago, my immigration saga will take an easy route, not one fraught with headaches and very costly. I have spent thousands before when I was previously in a durable relationship, and I fought the HO all the way up to the court of appeal when I withdrew my application. Three different judges backed me up and called it discriminatory to kick out a non-EEA family member at the end of their durable relationship while equivalent divorcee from the same category could retain their rights to stay in the UK. But the solicitor I had to represent me then, who was one of the best in the countries apparently, said it wasn't desirable to win the last round (which I had), as the HO will crash my case at the court of appeal. Why? since marriage and durable relationship are fundamentally different and that is rooted deep in tradition. SOmething along those lines. I hope my case, probably titled 'HASON vs. Home Office' sets some precedent and being quoted in tribunals. Wishful thinking.

Back to my current state. Being married is much more fun. But there you go, immigration doesn't become any better with the years. In the light of all the info, and my wife was a pedantic German who already knew all the facts, we will wait until I'm done with my PR in January, once I've completed my travels (has to be by the 2nd of January, as no way I will be returning into the UK on the expiry date of my RC...). The British route isn't very tempting given the thousands of pounds it costs to get an ILR. My wife is worried, she says she'd have started her citizenship application right away, but she'll have to rely at this stage on the benevolence of the German law and the Brexit deal, or if the deal isn't struck then applying at the German embassy for that doc NiKiGo mentioned starting with B (a terribly long name that was...), to prove her love for the Deutsche motherland in order to retain both nationalities post-Brexit.

Great to know about printing off only the relevant sections thanks.

Why has the blog weblink been removed? I'd really like to follow. Can anyone PM this link to me? THanks as always. Shlomi

[Shlumaan]

Hi NikiGo, I found the document you referred me to. Can you please simplify how it affects me and my wife in our case?

[NikiGio]

Hey guys you are a bunch of god-sent angels who make a lot of sense in a world of fools.

I'll call you next time I need a reference for a new job!

My wife is worried, she says she'd have started her citizenship application right away, but she'll have to rely at this stage on the benevolence of the German law and the Brexit deal, or if the deal isn't struck then applying at the German embassy for that doc NiKiGo mentioned starting with B (a terribly long name that was...), to prove her love for the Deutsche motherland in order to retain both nationalities post-Brexit.

Yes, I can imagine. From what I've read, there are obviously a lot of people in the same situation. And that "B" word definitely is a mouthful! I hope your German is up to scratch

Why has the blog weblink been removed? I'd really like to follow. Can anyone PM this link to me?

It seems all third-party site links tend to get removed, unless they're HO sites or similar. Just do a Google search with the terms 'Information Sessions for German Nationals – various dates and locations'. You'll find it.

I found the document you referred me to. Can you please simplify how it affects me and my wife in our case?

Well - my reading on the below was that your situation at least with regards to your wife's possible British citizenship and the effect on your rights via the EEA route would be safeguarded.

Dual nationals will keep their family reunion rights after Brexit

Dual nationals, i.e. those EU nationals who have become British citizens, will not be able to register for Settled Status, however, the Lounes judgment will be respected. That means people who have naturalised as British through getting PR under the EEA Regulations will still be able to sponsor family members where the relationship existed before midnight on December 31st 2020 and continues to exist.

But Kamoe rightly pointed out in the other thread is that while the Lounes + the above statement protects your right to stay in the UK as the non-EEA spouse of a potential dual EU-UK national, we don't know whether the clock of your residence time in the UK will be re-set to '0' once your wife becomes British.

Have you still got a lawyer helping you, or are you tackling all this on your own?

[Shlumaan]

Hi NikiGo,

I'd gladly you give you a reference, if I'm still in the country...

I think in with you and Kamoe as far as understanding this grey area of the situation. However I don't see why I'd need a lawyer now if my wife has PR plus is holding off her citizenship application until certainty is there. My position is pretty straight forward I thought to apply now or in January for a PR as a family member of an EU national who has already obtained a PR. What are your thoughts on that?

If my wife insisted on becoming a citizen right away then this whole complexity would require some legal input I agree. However that's not the case at the moment. I'd still be interested to learn what we may find regarding this matter, here or on the other thread.