Dual UK/Italian:has my non-EU spouse lost her legal basis ?

[echidna85]

Hello, I have looked at the "Residence card for non-EEA husband of dual UK/EU citizen" topic.
It's a helpful starting point but I feel our case is slightly different, so please allow me to recap.

2008 Jan: I came to the UK exercising treaty rights under my Italian passport.
2012 Dec: My Japanese wife and I got married in UK.
2013 Aug: My wife received her EEA2 residence card.
2016 Jan: I obtained British citizenship.
2016 Jul: Our baby was born in UK and naturalised British.
Present: I am currently working and my wife is on maternity leave. She's scheduled to go back to Japan from March to May 2017 to visit her family.

I've just learned yesterday about the amendment made to Immigration (European Economic Area) Regulations 2006 by the Immigration (European Economic Area) (Amendment) Regulations 2012 (No. 1547), whereby once I'm British I can no longer exercise treaty rights as EU citizen.

On this basis, I understand the transitional arrangements are not applicable to our case because we got married in December 2012, i.e. after July 2012. If this is true, it might mean that since I got my British citizenship (January 2016) my wife has de facto lost her legal basis to stay in UK.

Main questions:

1. At this stage, is my wife's status illegal?
2. Can she apply to remain from within the UK (https://www.gov.uk/remain-in-uk-family)?
3. If not, should she leave the UK and apply from Japan to join family in UK (https://www.gov.uk/join-family-in-uk)?
4. If applying to join family in UK, can the Home Office reject her application on the basis that she was "illegal" in the UK for a period of time? i.e. until we learned about the 2012 amendment.

This issue is causing us a lot of distress, especially since we have a 6-months daughter. Our priority right now is to understand the visa route that has the best chances of allowing my wife to stay in UK. Japan doesn't allow dual nationality, so she's not going to request British citizenship in the future.

Thanks in advance for any advice you could share with us.

[noajthan]

Hello, I have looked at the "Residence card for non-EEA husband of dual UK/EU citizen" topic.
It's a helpful starting point but I feel our case is slightly different, so please allow me to recap.

...

I've just learned yesterday about the amendment made to Immigration (European Economic Area) Regulations 2006 by the Immigration (European Economic Area) (Amendment) Regulations 2012 (No. 1547), whereby once I'm British I can no longer exercise treaty rights as EU citizen.

On this basis, I understand the transitional arrangements are not applicable to our case because we got married in December 2012, i.e. after July 2012. If this is true, it might mean that since I got my British citizenship (January 2016) my wife has de facto lost her legal basis to stay in UK.

Main questions:

1. At this stage, is my wife's status illegal?
2. Can she apply to remain from within the UK (https://www.gov.uk/remain-in-uk-family)?
3. If not, should she leave the UK and apply from Japan to join family in UK (https://www.gov.uk/join-family-in-uk)?
4. If applying to join family in UK, can the Home Office reject her application on the basis that she was "illegal" in the UK for a period of time? i.e. until we learned about the 2012 amendment.

This issue is causing us a lot of distress, especially since we have a 6-months daughter. Our priority right now is to understand the visa route that has the best chances of allowing my wife to stay in UK. Japan doesn't allow dual nationality, so she's not going to request British citizenship in the future.

Thanks in advance for any advice you could share with us.

Welcome.

1) Probably. If not married at the appropriate time you cannot avail of the McCarthy transitional arrangement.

Your wife is in a twilight zone. My understanding is she does not have legal residence in the UK; she may be lawfully present.

With a British child there is also Zambrano to factor in.

2) Possibly or even probably not.

Here's a similar case - which was refused:
http://www.immigrationboards.com/immigr ... d#p1423395

3) Could be good bet.
Your wife could process this application whilst back home with family in the coming spring.

4) My understanding is it would be unusual in the context of a spouse visa.

Suggest look into Zambrano cases too. Its a complex area but may help your case.

[Casa]

Are you earning a minimum of £18,600 p.a?

If you choose the UK Immigration route, your wife will need to pass the A1 level English test from a UKVI approved test provider (unless she has a degree taught in English). The A1 test could be taken in the UK before she returns to Japan.

In the circumstances you've described, your wife wouldn't be subject to any ban if she applies for a Spouse Settlement visa.

[Obie]

It will be perverse to suggest that a Durable Partner under regulation 8(5), who obtained a Residence card under Regulation 17(4) and 17(5) will lose that status if their sponsor becomes British and they then marry.

That will make no sense. It will amount to a Durable Partner being punished for upgrading their Durable relationship to a marriage one.

If the position is unchanged for a marriage couple whose EEA Spouse obtained British Citizen, the position must be the same for Durable partner whose partner upgrade their relationship to a marital.

Any contrary interpretation will be perverse, and will amount to an hinderance of the right of a person to marry and form a family which is protected by the charter and the ECHR.

[Casa]

It will be perverse to suggest that a Durable Partner under regulation 8(5), who obtained a Residence card under Regulation 17(4) and 17(5) will lose that status if their sponsor becomes British and they then marry.

That will make no sense. It will amount to a Durable Partner being punished for upgrading their Durable relationship to a marriage one.

If the position is unchanged for a marriage couple whose EEA Spouse obtained British Citizen, the position must be the same for Durable partner whose partner upgrade their relationship to a marital.

Any contrary interpretation will be perverse, and will amount to an hinderance of the right of a person to marry and form a family which is protected by the charter and the ECHR.

Are you referring to my post Obie?

[Obie]

No i am referring to Noajthan post. My reading of the Transition provision does not conform to his view. There is nothing to support his views that a person will not qualify under McCarthy Transition provision if they obtained their residency via durable relationship.

However if the UKVI has a policy saying that, i will respectfully say they are wrong, and that the language of the changes and transitional provision does not support that.

Under Regulation 7(3) an EFM is treated as a family member once issued with a Residence Card, and for all purposes are treated as a family member.

[noajthan]

I cannot comment on the whys and wherefore of the HO policy guidance.
Merely that it exists and that is how it is and that is how it is being applied, based on recent collective members' experiences.

[Obie]

I accept the existence of the policy you kindly showed me the other day, in regards to the application of the Transitional provision to people who acquired British Citizenship after the date the transitional provision came into effect.

However i have never seen a policy which state that McCarthy does not apply to Durable Partner.

Unlike the policy you had shown me which is more favourable than the transitional provision, a policy precluding family member under Regulation 7(3) from qualifying will be inconsistent with the regulation.

[noajthan]

Noted.
Perhaps the OP will be kind enough to clarify whether wife was his extended family member before they became married.

For better or worse, the transitional guidance certainly specifically excludes marriages that were contracted later than the critical key dates in the transitional arrangement.

It remains the position that the transitional arrangements do not apply in circumstances where a dual EEA/British citizen marries their family member after the transitional arrangements have ended.
These cases will continue to fall outside the scope of the Regulations.

Ref https://www.whatdotheyknow.com/request/ ... nat....pdf

[Obie]

With the utmost respect, i beg to differ , that what you cited above is the regulations. It isn't.

[noajthan]

With the utmost respect, i beg to differ, that what you cited above is the regulations. It isn't.

Obie I have not claimed it is a part of any Regulation; it is guidance. As currently used by UKVI/HO.

Of course, as such, the map is not the territory and anyone may challenge it in the usual way through the legal system.

[echidna85]

First of all thank you all for your quick replies.

casa: yes, I earn more than £18,600. Would she need to earn that much as well or is my income that counts?I haven't gone through the financial requirements yet, so apologies if it's an obvious questions.

Obie: when you say "It will be perverse to suggest that a Durable Partner under regulation 8(5), who obtained a Residence card under Regulation 17(4) and 17(5) will lose that status if their sponsor becomes British and they then marry. "

I should clarify that my wife and I got married in 2012, she obtained her EEA2 residence card in 2013 and I became a British citizen only in 2016. Our sequence of events is slightly different to the one you describe, so not sure if the same reasoning is applicable.

noajthan: "Perhaps the OP will be kind enough to clarify whether wife was his extended family member before they became married."

No my wife wasn't an extended family member (I'm assuming that "extended family member" doesn't have a different connotation when talking about immigration).

My original point was whether the home office would find prejudice in a new UK spouse application: the basis being that my wife was de facto illegal for a period of time until we learned of the 2012 amendment.

Thanks all again.

[noajthan]

noajthan: "Perhaps the OP will be kind enough to clarify whether wife was his extended family member before they became married."

No my wife wasn't an extended family member (I'm assuming that "extended family member" doesn't have a different connotation when talking about immigration).

In the EU context, an unmarried partner in a relationship akin to marriage is categorised as an extended family member.
(It does not mean you have happened to have married your second cousin or anything of that ilk).
Whereas a spouse is a direct family member.

I sense that your wife is and has only been your direct family member dependent.
You may read the guidance as posted above and make of it what you will.

[echidna85]

I see now, thanks for explaining.
Yes, she has only been my direct family member dependent.

Does that change the logic of obie's argument?
I'll review the rest of the guidance now.

[Obie]

Seems there was a misapprehension of the facts on my part.
The issues I was discussing is inapplicable to your case an have no relevance.

I believe an opportunity may arise one day to address that issue.

[echidna85]

Thank you all again, it's amazing you did all this on a Saturday.
We already feel we have a lot more information (and options) than earlier today.