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Category: UK Immigration Law
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Experience:  Solicitor
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Hello. I have been living in the UK for almost 7 years now

Customer Question

Hello. I have been living in the UK for almost 7 years now with my wife and I am an EU citizen. My wife is Russian and she has been living in the UK with an EEA family permit which expires next year.

We have been advised that we are eligibible for British citizenship and that we apply this as opposed to a confirmation under EU law that we are now permanent residents (since we have exercised treaty rights for the same period).

The issue we have is that the application is under consideration (for naturalisation) at the home office but my wife is now convicted for contravening the red lights and was fined by the magistrates court with 200 pounds fine.

My concern is that under the rehabilitation act 1974 she now carries an unspent conviction which we have to disclose to the home office ! And in reality since it is not a FPN we know she is more likely to get rejected.

My question is , if I become a british citizen and she is not, then does it mean her right to permanent residence under EU immigration law will be waived? I heard from someone that if an EU citizen becomes UK citizen then UK immigration rules for UK citizens supersede the ones for EU citizens. Is that the case? I will not lose my EU citizenship so I was thinking nothing stops my wife from applying for confirmation of her permanent residency under EU immigration rules.

Please advise as I am stuck and I am now thinking that withdrawing our british nationality application could be better than risking my wife being treated under UK immigration act as a wife of a British Citizen (considering the latest changes in ILR rules)
Submitted: 3 years ago.
Category: UK Immigration Law
Expert:  Senior Partner replied 3 years ago.
thanks for your question. You are correct the conviction will lead to a citizenship application being rejected until it is spent. However as you say, you are not required to give u your EU citizenship and your wife will continue to be entitled to be resident here as the wife of an eu citizen. This is not be affected by your acquiring uk citizenship - she is not her as the spouse of a UK citizen but exercising treaty rights and after 7 years she would be allowed to continue to do so even if you ceased to be married. Has your wife applied for confirmation of her right ot permanent residence which she is entitled to after5 years?
Customer: replied 3 years ago.
Thank you for your answer. Unfortunately this is our biggest concern, she hasnt got the confirmation from the Home office but we know that she is eligible for it. Do you think the conviction will in any case affect her acquiring confirmation of her permanent residency? I am very confused with the current regulations which say that on the one hand she doesnt need paperwork but on the other hand i become a UK citizen and the rules for ILR are different (with unspent convictions) ! i dont want her to have immigration issues
Expert:  Senior Partner replied 3 years ago.
You do not need to be concerned. Your wife has a right to reside in the UK. UKBA has no discretion in the matter. the confirmation of right of residence is exactly - that confirmation of a right. your wife could only be deported for a serious crime. a motoring offence is not a problem. I appreciate that the rules are confusing. This in sense because they are discriminatory against uk citizens who have less rights in respect of wives and family than EU citizens. However you are and will remain an EU citizen and your wife has already acquired treaty rights. She does not need to apply for ILR.
Customer: replied 3 years ago.
Ok thanks for this. Do I understand it right that once she is refused as a british citizen she can then apply for a confirmation of her permanent residency without issues? We need the confirmation anyway for travelling, applying for loans and for a confirmation to future employers that she is eligible to work.

Thank you so much again for your help, I will accept answer after this !
Expert:  Senior Partner replied 3 years ago.
Yes actually there is no reason why she cannot apply straight away . It might be sensible to withdraw the naturalisation application as under the current rules it is bound to be refused
Senior Partner, Solicitor
Satisfied Customers: 13276
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Senior Partner and 3 other UK Immigration Law Specialists are ready to help you
Customer: replied 3 years ago.
Thank you very much ! This answer was great very helpful. On your point regarding withdrawing the application I totally agree the only issue i guess is that we did the application together (two application forms but one case reference with home office) and I am not sure whether she can withdraw without me withdrawing as well. Do you think we are able to do so ?
Expert:  Senior Partner replied 3 years ago.
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