Application rejection : EU settlement scheme as a family member of an dual EEA / british

[barbapapa]

Hi,

- I am a dual french/british citizen from birth.
- I got a uk passport the year I learnt I was a british citizen : 2012
- My wife (Indian) entered the uk as a family member of a EEA citizen (french) in 2010.
- She received her residence card in that same year.

- In August 2012 we left the UK for around 10 month.
- We came back to the UK in June 2013.
- Her residence card expired in 2015.
- She made a new application in March 2016, where we stated my dual citizenship and the transition provisions of the 2012 amendment that allowed my wife to consider myself as a EEA citizen for the purpose of the application.
- She received the residence card in October 2016, acknowledging thus the validity of the transition provisions for our case.

- 3 weeks ago my wife applied to the EU settlement scheme via the phone app.
- We called as we wanted to give extra information, most notably the transition provisions
- They told us we can't apply via the app because of my dual citizenship.
- I argued that it should not be the case (mentioning the transition provisions)
- They told me it does not matter and they will send us an paper application form

- Today we received the form
- at question 3.40 it ask about me : "Have they held British citizenship since they were born?"
- We should answer YES to this question as even though I got my passport in 2012, I am british citizen since I am born.
- The paper form then states that if we answer YES : "you cannot continue with this application as a family member of this persons"
- We decided to call them, They basically replied after more than 1 hour of investigation) that we have to call the general "uk visa and immigration" (03001232253) as we can't continue with this application that way.

This is in contradiction to the transition provisions and the decision they made in regard to my wife latest residence card.

What should we do ?
Do you think "uk visa and immigration" would be able to help ? (they are currently closed (weekend))
Or should we try to call the EU settlement Resolution Centre again and push for reconsideration ?

Is there anybody else in similar situation ?

[Romy88]

Hi

Can you please tell did the application was rejected before issuing CoA or after?

It doesn't make any sense... as far as I understand you became British after naturalisation which happened in 2012 or 2011? And your wife was treated as a Non-EU family member of EU.

For example, my ex-spouse obtained British naturalisation just after one-two months as I was issued BRP as person who retained my rights being a Non-EU spouse of EU (broken relationship, officialy divorsed in 2011). In 2014 I have extended my leave to remain under the same retained rights with my ex-spouse registration number on the letter from HO as their internal reference.

Recently I applied under EU Settlement Scheme, was issued CoA and just waiting. I have applied online under category of retained rights. Maybe my applications will be rejected like, who knows...

[CR001]

It doesn't make any sense... as far as I understand you became British after naturalisation which happened in 2012 or 2011? And your wife was treated as a Non-EU family member of EU.

The op has clearly stated they are dual French British from birth and only applied for a British passport in 2012

[Trainer74]

Yes it seems the settled status app, has not been configured, as you are not the only one going to have a problem, yoou application is under eea not uk immigration, all they have done is pass the buck, i doubt you will get any joy fm uk side, this is cut from fom uk settlement scheme

An application must be treated as void where:
• the applicant is a British citizen (including a dual British citizen)
• the applicant dies before their application is decided
• the applicant is making an application from outside the UK before 0700
GMT on 9 A

Is there not a way you can mention the transitional arrangements in the space?
i had a look and cant see an appeal route, you are not going to be alone, i am sure there are plenty of others are going to encounter this as time goes on

[Trainer74]

It would seem the home office have forgotten about the Mcarthy judgement which allowed dual citizen non eea partners to continue under the eea route as long as they held a valid residence card i think is was about oct 2012/2013
If there is no appeal system i would say contact you MP.

[barbapapa]

Yes, I mentioned to them the transition provisions of 2012, even named them accurately as I had our previous letter (send for my wife's latest residence card application) in front of me. (see https://www.legislation.gov.uk/uksi/2012/1547/made schedule 3 (part 2, subparagraph 3 and 5) )

And to reiterate the requirement for the transitional provisions :

- we left the uk in August 2012 (we were thus living in the uk on 16th July 2012)
- my wife residence card (issued under the 2006 regulations) expired in 2015 and was thus valid on 16th October 2012
- None of the events described in subparagraph 5 apply.

Plus, as mentioned my wife's latest residence card was given to her in these conditions, confirming her rights.

So you seem all to concur that technically they should accept our application. I ll try to call them again tomorrow since on the call I did not realize what they mean by "you have to call 03001232253". I thought it was simply yet another part of the EU settlement scheme, so I ended the call without insisting.

[Trainer74]

From the homes offices own document: dated 19 FEB https://assets.publishing.service.gov.u ... 7.0ext.pdf
(see page 30 below is an extract from their own guidence, please keep us informed


Family members of dual British and
EEA nationals before 16 July 2012
Transitional arrangements
Transitional arrangements were put in place following amendments to the
regulations in July 2012, which allowed family members of dual nationals who had
already relied upon a right of residence as the family member of that dual national to
continue to enjoy a right of residence where the conditions set out below were met.
Persons residing in the UK on 16 July 2012
Persons already residing in the UK on 16 July 2012 as family members of dual
nationals, and who held a valid registration certificate or residence card confirming
this right on 16 October 2012 will continue to be treated as the family member of an
EEA national for as long as they continue to be the family member of that dual
national.

[secret.simon]

Remember that the Settled Status applications, while issued to EEA citizens and their family members, are issued under UK immigration law and not EU law. It would therefore not necessarily incorporate nuances of EU law such as the transitional arrangements taking the McCarthy judgment into account.

What the OP should do is make an application for PR under the EEA Regulations and then, once received, either transition that to Settled Status or apply for British citizenship based on that.

[Obie]

Remember that the Settled Status applications, while issued to EEA citizens and their family members, are issued under UK immigration law and not EU law. It would therefore not necessarily incorporate nuances of EU law such as the transitional arrangements taking the McCarthy judgment into account.

What the OP should do is make an application for PR under the EEA Regulations and then, once received, either transition that to Settled Status or apply for British citizenship based on that.

Not sure I follow your reasoning at all.

The scheme of the settled status was designed to run in tandem with the regulations and in some way compliment or lessens the requirements in the case of CSI.

I do not think the issues here was tension between the regulations and the rule, it was just share incompetence.

I agree with you that OP must apply under the regulations, but this is for a different reason.

By applying under the regulations she can challenge unlawful decision, where as such rights are not applicable under the rules.

It is worth pointing out, that the regulation, McCarthy and transition provisions are not EU law. They are UK law purporting to give effect to EU law. The regulations is not EU law.

[barbapapa]

Thanks all for your replies.

As for applying to permanent card residence. we were actually thinking to do so before and asked the forum here but people replied it was better to wait since settle procedure would be quicker (see eea-route-applications/should-my-wife-a ... 65229.html)

Is there still enough time to apply for permanent residence now ?

[barbapapa]

Also if I managed to convince them to accept our application as EEA and they decline our application for whatever reason. Would I be able to try the permanent card residence path later ?

[barbapapa]

Hey good news!

I called the EU Settlement Resolution Centre again today and after insisting they replied to me that we can indeed reply yes to the question 3.40 ("Have they held British citizenship since they were born?") and still carry on with the application.

The person on the call advised me to put a note referring to his first name.

I guess they might update the form at some point.

[barbapapa]

I agree with you that OP must apply under the regulations, but this is for a different reason.

By applying under the regulations she can challenge unlawful decision, where as such rights are not applicable under the rules.

Do you still think we should apply for the permanent residence card or should we go ahead with the settlement application?

[Romy88]

It doesn't make any sense... as far as I understand you became British after naturalisation which happened in 2012 or 2011? And your wife was treated as a Non-EU family member of EU.

The op has clearly stated they are dual French British from birth and only applied for a British passport in 2012

He also cleary stated that his wife obtaned residence card based on her husband's french passport not on the based that hi is British by birth.

[Romy88]

I agree with you that OP must apply under the regulations, but this is for a different reason.

By applying under the regulations she can challenge unlawful decision, where as such rights are not applicable under the rules.

Do you still think we should apply for the permanent residence card or should we go ahead with the settlement application?

If you wanna waste your time, then go for permanent residence card. Do not forget that you will have to apply for Settlement anyway, you cannot avoid it.

[NatCam]

Hey good news!

I called the EU Settlement Resolution Centre again today and after insisting they replied to me that we can indeed reply yes to the question 3.40 ("Have they held British citizenship since they were born?") and still carry on with the application.

The person on the call advised me to put a note referring to his first name.

I guess they might update the form at some point.

It is great news indeed! I hope common sense will prevail.

[barbapapa]

By the way, for those that are in the same situation, and you did not yet started a mobile-based application, you should contact them first as they allows you to proceed with the mobile-based app. They told us to apply via the mobile app and answer that I was only French (basically not replying correctly at the questions pertaining to nationality).
Unfortunately since we already completed the mobile app application we could not restart it without waiting first 70 days.
So we are going to apply via the paper route.

[Trainer74]

I agree answering the question wrongly, just to fit the question seems odd as you are agreeing all statements are true, unless they provide that in writing, i would also use the paper method and see, please keep us updated

[Sky777]

[quote=barbapapa post_id=1775940 time=1556874227 user_id=144261]
By the way, for those that are in the same situation, and you did not yet started a mobile-based application, you should contact them first as they allows you to proceed with the mobile-based app. They told us to apply via the mobile app and answer that I was only French (basically not replying correctly at the questions pertaining to nationality).
Unfortunately since we already completed the mobile app application we could not restart it without waiting first 70 days.
So we are going to apply via the paper route.
Hi
Any update about urs application
As my wife made same mistake and applied online by post
I’m dual citizenship Polish and British get my British citizenships when was in uk
Any way we waiting 6 weeks now no answer
Today I read u post and order paper application form
We can’t wait any longer cos her brp card expire in July
So we can’t withdraw and start again
Any way how about urs application any progress
Thank you

[barbapapa]

I just called today and they said the application is in progress.

They told me they don't know how long it will take, saying 1 month, 2 months or even 6 months

That's annoying. Hope it get done quicker

[sylinni]

I am currently in this process....
Married (in NI) to Irish Citizen (born in NI) in 2001
Moved to NI in 2014 and received Residence Card of an EEA National in 2015

My Residence Document (a piece of paper with no biometrics) expires Jan2020

I applied via the web page for Settelment Scheme on 23/May/2019
Biometirc done in Belfast : 28/May/2019
COA: 05/June/2019

It appears that as my spouse was born in NI he may be regarded as a British Citizen (although according to the GFA he can be either- Irish, British, or both- see current Emma DeSouza case).

While we will figure something out - my concern is what happens when this document expires and I have yet to get a new one? Can I still have employment? What about travel??? Can I legally leave the UK (say go to Spain for some sun) and reenter??

Love to hear what others are doing in this case. Thank you!!

[Trainer74]

I was told by the helpline, that despite the McMarthy judgement, the non eea citizen would have to aply for perm residence before applying for the settlement scheme, but i understand there is a case de Souza going through the appeal court which may change things again

[iibdii]

I am currently in this process....
Married (in NI) to Irish Citizen (born in NI) in 2001
Moved to NI in 2014 and received Residence Card of an EEA National in 2015

My Residence Document (a piece of paper with no biometrics) expires Jan2020

I applied via the web page for Settelment Scheme on 23/May/2019
Biometirc done in Belfast : 28/May/2019
COA: 05/June/2019

It appears that as my spouse was born in NI he may be regarded as a British Citizen (although according to the GFA he can be either- Irish, British, or both- see current Emma DeSouza case).

While we will figure something out - my concern is what happens when this document expires and I have yet to get a new one? Can I still have employment? What about travel??? Can I legally leave the UK (say go to Spain for some sun) and reenter??

Love to hear what others are doing in this case. Thank you!!

Hello sylinni
I am in the same boat as you are, i was given 5 year resident permit in 2013 which expired feb 2019 with irish national partner. Our PR application refused due to the original application was lodged after McCarthy transition period and HO claiming that permit was issued in an error, had my appeal last week and now waiting on decision but i also applied for the settlement scheme same day as my appeal hearing still waiting for my COA.
Could you please update this thread and i will do the same as not many people know what are our options after that.
Only thing i can do is revoking partner British passport which we will do if both fails

[iibdii]

@sylinni
Hi just looking update my appeal for PR got refused at FTT and now im waiting for ESS results its been 20 days but still no COA.
Did you get any response yet?

[Samsam101]

I just called today and they said the application is in progress.

They told me they don't know how long it will take, saying 1 month, 2 months or even 6 months

That's annoying. Hope it get done quicker

Hi, I’m currently in the same situation as you were. I was wondering what was the outcome in the end.

Thanks