ILR and dual EEA/non-EEA nationality

[Einwohner]

I am a US citizen with ILR, which is recorded in a sticker in my old passport that I show when I have to appear to an immigration officer, something I rarely do these days since I was accepted to use the automatic passport gates under the Registered Traveller scheme.

Recently, however, I discovered that I am also a German national from birth, i.e. I am a dual EEA/non-EEA national. Given the Brexit talks, I am keen to have my dual nationality acknowledged on my ILR so that (if possible) I would be able enter the UK as a permanent resident using either passport, and so that in the future I would be able to exercise any rights that EU citizens may acquire in the final Brexit deal (e.g. the possibility of lifetime right of return is being contemplated).

Given the posturing during the Brexit negotiations about cut-off dates, new registration requirements for EU citizens that had not previously obtained an EU permanent resident card etc. I am concerned that if I do not put Home Office on notice of my dual citizenship now, and just wait to see what happens, I could end up being precluded from, or disadvantaged in, exercising rights derived from my EU citizenship in the future. I realise of course that there may be an argument that I should be entitled to rely on rights deriving from my EU citizenship in the future regardless of whether my dual nationality was ever reflected on my ILR, but I would rather not take the risk of being wrong or having to deal with bureaucratic headaches only after it becomes a problem.

Does anyone have experience with persons holding ILR/BRP on the basis of dual EEA/non-EEA nationality so that they may enter the UK on either passport? If so, what is the proper procedure for getting this recognised by Home Office?

[zimba]

You might not be able to benefit from any of the future rights granted to EEA citizens as you have been living here as an American citizen with ILR. To be the beneficiary of any future Brexit deal, you probably will be expected to show that you entered the UK before some cut-off date as a German citizen and have been exercising your EEA Treaty Rights since then.
As a Brexit deal for EEA citizens is yet to be discussed and given that you never entered the UK as a German citizen or exercised any EEA treaty rights, the chances of you benefiting from a future Brexit deal by merely holding a German passport are slim to none in my opinion.
It is highly likely that any potential Brexit deal will be agreed to protect ONLY those EEA citizens who have been living in the UK and exercising their treaty rights and not all EEA citizens.

[Einwohner]

zimba88 thank you for your thoughts, but they appear to focus on the problem rather than the question:

"Does anyone have experience with persons holding ILR/BRP on the basis of dual EEA/non-EEA nationality so that they may enter the UK on either passport? If so, what is the proper procedure for getting this recognised by Home Office?"

I obtained ILR using my US passport only because I was unaware of my dual German citizenship at the time. But that does not mean I have not been exercising EEA rights within the meaning of the Citizens' Rights Directive, as I am a German citizen from birth and I have been residing and working to support myself in the UK throughout the period that I have held ILR. There is no requirement in the Citizens' Rights Directive that the EU citizen possess a permanent residence card or comply with any other administrative formality (such as use of an EU passport at the border) as evidence of exercise of Treaty rights. Indeed in many cases that would be impossible e.g. where entry occurs within the Schengen Zone or Northern Ireland where there are no border controls at all between EU countries. All that is required is proof that the EU citizen has been living and working in the UK. Rights under the Citizens' Rights Directive attach to EU citizens and not to special permits or travel documents.

This is precisely why I want to have my dual nationality expressly noted on my ILR - so the Home Office has notice that I am (and indeed have been) exercising EEA rights to avoid confusion. I fear just starting to travel on my German passport without the Home Office recording my dual nationality on my ILR would run the perverse risk that, on the one hand, I could lose my the ILR on my US passport due to 'prolonged absence' but on the other hand I would be perceived to have only first exercised EEA rights from the date that I first entered the country using an German passport, notwithstanding that I have been continuously resident for many years. The Home Office also needs to know that I have held dual US/German nationality for the entire period I have been residing in the UK.

[Obie]

On what basis did you acquire ILR? have you worked in the UK for a period of 5 years, in the last 5 years?

I don't think you should worry about using your other passport. You will be perfectly okay to do so.

[Einwohner]

Yes I obtained ILR on the basis of 5 years residence self-employed status. My concern is that Home Office should know that I have dual national status and my ILR should reflect this

[Obie]

ILR is different from Permanent Residence status in the UK. If you want ILR to reflect Under German Citizenship, then PR will need to be applied for.

[Einwohner]

I wish to revisit the question of reflecting dual nationality on my ILR/BRP (see thread above). The GOV.UK website now says this on the page "Information for European Union citizens living in the UK" updating the status of the UK Government's plans to secure the rights of current EU citizens resident in the UK (https://www.gov.uk/guidance/status-of-e ... -to-remain):

"Indefinite leave to remain

Indefinite leave to remain status will not be affected by the UK leaving the EU.

Once the application scheme for settled status opens there will be a simple process for you to exchange your old indefinite leave to remain document for a settled status document free of charge, should you wish to prove you benefit from the withdrawal agreement. We won’t repeat any assessment of residence.

You will need to:

- provide an identity document and a recent photograph to confirm your identity
- confirm you still live in the UK
- declare any criminal convictions

You can apply for a biometric residence permit if you want an updated document confirming you have indefinite leave to remain now." (emphasis added)

My ILR was issued to me as a US citizen in a stamp in my passport. Does this mean I can now obtain a BRP confirming my ILR, but now showing dual (US and German) nationality?

[CR001]

My ILR was issued to me as a US citizen in a stamp in my passport. Does this mean I can now obtain a BRP confirming my ILR, but now showing dual (US and German) nationality?

Nothing new. People issued with ILR as a vignette in a passport have been able to and required to apply for a BRP for a couple of years now. ILR is issued to a person, not a passport or a nationality. ILR and PR under the EU rules is the same status, i.e. 'settled'.

[Einwohner]

Thank you for the helpful reply.

The key issue is that the ILR is currently in my US passport. I want to begin entering the UK using my German passport now so there is no doubt I am exercising treaty rights as a EU citizen and will be able to easily claim the new settled status being introduced this year without a fuss. Without going into all the details, if the current stance being taken by the Govt is ultimately adopted, there will be some advantages to the new settled status over ILR for a non-EEA national.

My concern is that if I simply start entering the UK using my German passport without informing Home Office of my dual nationality or producing my ILR, then on the one hand I run the risk that I am perceived to have abandoned my ILR (because I am not using it), whereas on the other hand I am perceived to have arrived in the UK as a German national only recently and not accrued sufficient residence for settled status.

Thus the desire to transfer to a BRP now to ensure continuity. The BRP, however, has a field for 'nationality' on the back, which suggests that it does attach to both a person and a nationality. Or is it possible to have both nationalities listed on the BRP?

Or am I perhaps overthinking this and, for example, I can just show up at the border asking to enter with my German passport and show the ILR in my US passport? Even if that is possible, I fear that when the time comes to swap my ILR for the new settled status using whatever 'simple' online system the Govt sets up, it will not be set up to allow a person to swap ILR in a US passport for EU national settled status and I will be back here on the immigration board trying to find out a way to get someone to deal with it or heading down to Croydon with a glut of 3 million others trying to sort out their own Brexit-created issues. Unfortunately, in my experience bureaucracies are typically unprepared to deal with anything out of the ordinary - I want to try to get ahead of the game now.

[vinny]

If you haven't been absent from the UK for more than two continuous years (and have been treated as a returning resident since being granted ILR), then your ILR hasn't lapsed.

As an ILR holder, it's unclear if you will gain any advantages as an EU national with settled status.