EEA3 returned - peculiar situation, suggestion welcome

[pinetop]

Hi,

First of all congratulations to the active members and moderators of this forum which I came some time ago after a friend's suggestion and which contains very useful information for immigration matters in the UK. Me and my wife have a peculiar situation needing some advise and sorry for the long post.

I am EU citizen which has been working in UK for 10 years. I never applied for permanent residence, but I did directly apply for British citizenship which I obtained 2 years ago, so I am now dual EU/UK citizen.

My wife is a non-EU citizen living in UK since 7 years, we married over 5 years ago and she subsequently obtained EEA2 residence card as family member of EU citizen. After some years of marriage my wife applied and obtained EU citizenship of my country of origin through its Consulate in UK (it is still allowed for my EU country of origin for spouses to become citizens for marriage even if living abroad). Therefore, my wife is now dual non EU/EU citizen.

Her EEA2 is expiring so she recently applied for permanent residence (she is not working and housewife so still dependant from me), however she did use form EEA3 for EU nationals as she is EU national as well, attaching all supporting evidence (her two passports EU/nonEU), my EU passport and all proofs of my work, marriage certificate and cohabitation.

Her EEA3 has been returned after two weeks with what seems standard letter but with the final bit saying that :

'To establish a right of residence and therefore eligibility for a Document Certifying Permanent Residence, the following additional evidence will be needed:

Evidence of exercising treaty rights in the UK for a minimum of 5 years (D):

unfortunately you did not provide sufficient evidence to show that you have been exercising treaty rights for a continuous five year period.
You cannot apply for a Document Certifying Permanent Residence until you have been an EEA national for five years. Please submit a new application for a registration certificate and include all necessary documents required to enable the UKBA to process that application'

What does this mean? It seems that her application was treated as if she was applying on her own rather than as a family member, is this because she has not been EU citizen for five years but only for 2 so her time as family member as non-EU does not count anymore? Is because I am British and then she cannot apply relying on myself as EU anymore, I have maintained my EU nationality....

She is still a family member of me, it seems unlogic that by acquiring additional nationalities the people restart the clocks and change the status, we are the same persons, is like being penalised for acquiring another nationality?

Do you think that she shall apply for EEA4 instead as a non-EU family member (she has been this for over 5 years, with the last 2 also as EU), shall she apply for spouse visa under UK rules, but does this make sense, is she not entitled to live in UK as EU citizen or as family member of a UK/EU citizen anyway? Shall she apply for nothing, or for a registration certificate they suggest (is this the EEA1, but can be this as a family member?).

Thanks for your suggestion!

[sjimoh112]

I would suggest she re-apply using the EEA 4 app form. Send it off and let them deal with it.

[EUsmileWEallsmile]

I would suggest that your situation is a little unusual and may have confused.

Your wife is now an EU national and should apply on that basis. If she has resided for 5-years in the UK in accordance with the 2006 regulations, then she qualifies for PR. How she demonstrates that is up to her. Her acquisition of another nationality should not affect that at all.

A good covering letter is required.

Another point, why does she want to demonstrate PR? She does not have to.

[EUsmileWEallsmile]

I would suggest she re-apply using the EEA 4 app form. Send it off and let them deal with it.

I would suggest EEA4 is inappropriate as she is an EU citizen.

[zheni]

I would suggest she re-apply using the EEA 4 app form. Send it off and let them deal with it.

I would suggest EEA4 is inappropriate as she is an EU citizen.

I agree but would it not be a problem to prove exercising treaty rights?
The OP stated that his wife does not work and is dependent on him which would mean she is self sufficient and then comes the issue of CSI.

[EUsmileWEallsmile]

I would suggest she re-apply using the EEA 4 app form. Send it off and let them deal with it.

I would suggest EEA4 is inappropriate as she is an EU citizen.

I agree but would it not be a problem to prove exercising treaty rights?
The OP stated that his wife does not work and is dependent on him which would mean she is self sufficient and then comes the issue of CSI.

A family member can be an EU or non-EU national and qualify on the basis of being a family member of an EU citizen exercising treaty rights.

[Obie]

I agree. The fact that EEA nationality was acquired, has no bearing on her ability to secure PR as EU Family member or as non-EU family member.

If she was applying in her own right, then perhaps there might have been some difficulties.

[pinetop]

Hi thanks to all for their replies.

---Do you know if what my wife got is a 'refusal letter' or not, maybe with right of appeal? Before the part I cited the letter has no reference (only date) and also says:

'please note that this is not a formal determination of your status under the Regulations. Our purpose in returning the documents is to assist you to assemble a complete dossier of supporting evidence and submit this with a fresh application when you are in a position to do so. In the meanwhile we will not be giving any furhter consideration to your case'

---Also i read the regulations and it seems like there is a difference between EEA3 leading to a 'Document Certifying Permanent Residence' and the EEA4 leading to a 'Permanent Residence Card'. The letter mentions the former only, so it would appear that the application has been considered as applying for a document given to EEA nationals only but not to non EEA (they get a 'Permanent Residence Card') and my wife was not EEA for the whole time. In this respect it may be that applying for EEA4 may be considered appropriate here, is this a possibility?

It is right that my wife may not be able to show PR right on her own as not all period she may demonstrate treaty rights on her own. However, in practical terms if she does not get any PR document what will it happen, is she is not entitled to live in the country, is still my family member!

[EUsmileWEallsmile]

No she was not refused by the sound of things.

Your wife will be entitled to PR as an EU national as long as she lived in the UK legally for 5 years. Legally means in accordance with the terms of the directive. That could be as the family member of someone, as a worker in her own right, etc, etc. Her change in nationality is irrelevant.