EE3 application and BC acquired while on EEA2

[patkiut]

Hello all,

I have taken a long time reading through existing cases, but as this topic is a bit of a grey area with each case having nuances, I was hoping for the forum to weigh in here.

I am an Eu national who have been employed in the U.K. Since 2007, thus exercising treaty rights.

In June 2012, my non-eu wife came to the UK under an Eea family permit which was followed by a successful eea2 residence card issued in Feb 2013 (need to confirm the application date for that).

I acquired BC in spring 2016 and am a dual citizen.

Will my wife be able to continue via the eu route (EEA3)?

Any help appreciated.

[Hstepper07]

Hello all,

I have taken a long time reading through existing cases, but as this topic is a bit of a grey area with each case having nuances, I was hoping for the forum to weigh in here.

I am an Eu national who have been employed in the U.K. Since 2007, thus exercising treaty rights.

In June 2012, my non-eu wife came to the UK under an Eea family permit which was followed by a successful eea2 residence card issued in Feb 2013 (need to confirm the application date for that).

I acquired BC in spring 2016 and am a dual citizen.

Will my wife be able to continue via the eu route (EEA3)?

Any help appreciated.

I have read somewhere that Non-EEA family members will no longer benefit from EEA regulations once their sponsor becomes BC. They will instead be assessed under the law applicable to British citizens

[CR001]

I have read somewhere that Non-EEA family members will no longer benefit from EEA regulations once their sponsor becomes BC. They will instead be assessed under the law applicable to British citizens

Highly likely the OP's spouse is covered by the McCarthy transitional provisions where this would not apply. See posty by vinny » Wed May 17, 2017 1:40 am, link below.

eea-route-applications/do-dual-eu-uk-ci ... l#p1485979

[patkiut]

Thank you all for the replies so far, which are aligned with what I believe should be the case.

From what I understand, one has to put a case through the official process to really validate any expectations. I have heard so many contradicting opinions that makes your head spin.

I promise to update the board when I have more. If anyone in the meantime has any more input, that would be appreciated.

[CR001]

Thank you all for the replies so far, which are aligned with what I believe should be the case.

From what I understand, one has to put a case through the official process to really validate any expectations. I have heard so many contradicting opinions that makes your head spin.

I promise to update the board when I have more. If anyone in the meantime has any more input, that would be appreciated.

Please do read and click on the link I have provided where the links posted by vinny will take you to the legislation page.

[patkiut]

Thank you all for the replies so far, which are aligned with what I believe should be the case.

From what I understand, one has to put a case through the official process to really validate any expectations. I have heard so many contradicting opinions that makes your head spin.

I promise to update the board when I have more. If anyone in the meantime has any more input, that would be appreciated.

Please do read and click on the link I have provided where the links posted by vinny will take you to the legislation page.

I have done that indeed and, as far as I understand, we fulfil the requirements outlined in the relevant paragraphs. Having read through various personal experiences, though, I am optimistic in a reserved manner.

Just to sum up the reasons I believe we are covered by the transitional arrangements:

16 July 2012 - My wife was already in the UK after a successful EEA Family permit was issues in late spring.
16 October 2012 - We had already applied for the residence card (and boy were we close to that date!)

My only question, at this point, is whether any EEA3 refusal will simply mean I am routed to the BC Spouse route or whether other unpleasant surprises would appear.

[Richard W]

My only question, at this point, is whether any EEA3 refusal will simply mean I am routed to the BC Spouse route or whether other unpleasant surprises would appear.

There are two basic types of refusal - those where the problem is simply that adequate evidence has not been provided, and those where the Home Office deems that the applicant no longer has a right to reside.

A refusal of the second type would be nasty. If your wife no longer had a right to reside, she could only switch to the pure UK route from outside the UK - unless there is a child who would be affected. If you have children, that may allow such a switch to be made. The big problem with switching from EEA route to the UK route is that one must still be covered by the EEA route when the switch is made.

[patkiut]

My only question, at this point, is whether any EEA3 refusal will simply mean I am routed to the BC Spouse route or whether other unpleasant surprises would appear.

There are two basic types of refusal - those where the problem is simply that adequate evidence has not been provided, and those where the Home Office deems that the applicant no longer has a right to reside.

A refusal of the second type would be nasty. If your wife no longer had a right to reside, she could only switch to the pure UK route from outside the UK - unless there is a child who would be affected. If you have children, that may allow such a switch to be made. The big problem with switching from EEA route to the UK route is that one must still be covered by the EEA route when the switch is made.

"Covered" as in a valid residence card?

[Richard W]

"Covered" as in a valid residence card?

"Covered" as in having the relevant right of residence. If the 2016 EEA Regulations are indeed the law, there are people with a right of residence under the regulations who nevertheless have no right to a residence card. However, I would recommend obtaining a valid residence card before switching, so as to satisfy the Home Office that she does have a right of residence.

[patkiut]

"Covered" as in a valid residence card?

"Covered" as in having the relevant right of residence. If the 2016 EEA Regulations are indeed the law, there are people with a right of residence under the regulations who nevertheless have no right to a residence card. However, I would recommend obtaining a valid residence card before switching, so as to satisfy the Home Office that she does have a right of residence.

Would that be covered by the fact she is still a holder of a valid EEA2 5 y residence card?

[patkiut]

One final question: Should I include a cover letter invoking the transitional arrangements (McCarthy). I found it rather alarming that some home office guidelines were referring to these arrangements in relation to dual citizens in a way that could easily be interpreted to mean that only sponsors that were already dual citizens within the transitional arrangements/deadlines are applicable.

In my opinion the actual law is very clear in referring to "who can continue to be regarded as an EEA national" without any specific reference to dual british/eea citizen as a prerequisite.

I am feeling like i am ready to start a new career path in the Legal area...

[Richard W]

However, I would recommend obtaining a valid residence card before switching, so as to satisfy the Home Office that she does have a right of residence.

Would that be covered by the fact she is still a holder of a valid EEA2 5 y residence card?

It's slightly dodgy , in that it was obtained before you became British. This is a matter of tactics, rather than application of the law. I believe the law still applies to spouse visas.