To be or not to be British? That is the question

19 October 2012

Lieutenant Colonel Alfred Daniel Wintle once proudly declared: "I get down on my knees every night and thank God for making me an Englishman. It is the greatest honour He could bestow. After all, he might have made me a chimpanzee, or a flea, a Frenchman or a German!”

However, these days, is it better to be an Englishman living in the United Kingdom or in fact a Frenchman, a German, or a national of any other EEA country for that matter? Who enjoys more favourable rights?

Voting

Citizens of the UK and the Republic of Ireland have more rights when it comes to voting in the UK—they can vote in local elections, referendums, and UK as well as European parliamentary elections. Citizens of the European Union, who are not Commonwealth citizens or citizens of the Republic of Ireland, can vote in European elections, local elections in the UK, and some referendums; but they are not able to vote in UK parliamentary general elections.

Study and Employment

All British and Irish citizens, as well as those from the Channel Islands and the Isle of Man, are entitled to work and study in the UK. EEA and Swiss citizens, including their family members, are also entitled to work and study in the UK; however, citizens from the A2 countries, i.e. Bulgaria and Romania, may need to apply for permission from the UK Border Agency (‘UKBA’) before they can work in the UK.

Benefits

British and Irish citizens are entitled to welfare benefits as long as they are eligible for financial help. EEA nationals are generally eligible to access benefits on the same basis as UK citizens, as long as they are exercising Treaty rights, e.g. they are a worker or self-employed person.

Immigration and Family Reunification

As previously discussed, the recent changes to the family migration Immigration Rules have left British citizens with less favourable rights than EEA citizens who are exercising their Treaty rights in the UK.

For a British citizen to reunite with a spouse or partner, a minimum income threshold of £18,600 must be met. If the British citizen wants to reunite not only with a spouse or partner, but also with children, the minimum income threshold increases with each child dependant.

With regard to finances, non-EEA citizens applying for an EEA family permit to join their self-sufficient EEA family member may simply show that their sponsor has ‘sufficient funds to maintain themselves and their family members for the period of their residence in the UK’.

The rules are even more stringent for British citizens who wish to bring to the UK an adult dependent relative. The UKBA defines an ‘adult dependent relative’ as someone who is aged 18 or over and who is only either a parent, grandparent, brother, sister, son or daughter. Additionally, ‘if the applicant is the sponsor’s parent or grandparent they must not be in a subsisting relationship with a partner unless that partner is also the sponsor’s parent or grandparent and is applying for entry clearance at the same time as the applicant’.

For EEA or Swiss nationals, non-EEA family members who have the right of residence in the UK are:

spouses or partners;
children or grandchildren (or the children or grandchildren of spouses or partners) who are under 21 years of age or are dependent;
the parents or grandparents (or the parents or grandparents of spouses or partners) if they are dependent; or
other relatives — including extended family members such as brothers, sisters and cousins — who are able to show that they are dependent.

Furthermore, an adult dependent relative can apply to join a British citizen only if:

he or she needs long-term personal care to perform everyday tasks, such as washing and cooking;
the care he or she needs is not available in the country where he or she is living, either because it is not available and there is no person in the country where he or she is living who can reasonably provide it or because it is not affordable; and
his or her sponsor, i.e. the British citizen family member, can show that he or she is able to provide adequate maintenance, accommodation and care without having to rely on public funds.

EEA or Swiss citizens need only to show that they are a qualified person, i.e. a worker, self-employed, economically self-sufficient, a student, a jobseeker, retired or permanently incapacitated along with proof of dependency as follows:

For direct family members, this is evidence that:

the EEA or Swiss national or their husband/ wife/ civil partner has sufficient funds to maintain the applicant, and that the applicant is, in practice, reliant on these funds to meet their needs (for example, bank statements and evidence of money transfers).

For more distant relatives, such as cousins, nephews and nieces, this is evidence that:

the EEA or Swiss national was maintaining the applicant before the applicant’s admission to the UK and continues to do so (for example, bank statements and evidence of money transfers); or

the applicant was a member of the EEA or Swiss national’s household in the country from which they have recently come, and that they are members of the same household in the UK (for example, joint bank or building society statements, joint tenancy agreements, council tax bills or other evidence that the parties share and have shared the same address).

There is little to no case law on the new changes to the family migration Immigration Rules. Therefore, as the Rules currently stand, the following scenarios would likely result in a family member being able to join an EEA or Swiss national where a British citizen’s family member would not!

Mr. A, who is now 45 and living in Scotland, was orphaned at the age of two, and he was raised by an aunt and uncle. Mr. A’s uncle recently passed away and Mr. A’s aunt, who is in her mid-80s, currently lives in New Zealand and is beginning to suffer from dementia. She is now becoming financially dependent on Mr. A and Mr. A wants to bring his aunt to live with him in the UK.

Ms. B is 39 and living in Wales. Ms. B’s mother and father divorced when Ms. B was six. Ms. B’s father was granted custody of Ms. B, and her father remarried when she was nine. Her father, 77, and his wife, 76, live in rural Alaska. Ms. B’s father has been diagnosed with pancreatic cancer and his wife is arthritic. Without Ms. B’s financial support, her father would not be able to afford his medical care.

Mr. C is 68 and living in England. His wife passed away several years ago, and he has since married a former national of Kazakhstan who has naturalised as a British citizen. Mr. C’s wife’s son, 27, suffers from a form of autism and lives in the Kazakh countryside. He cannot hold full-time employment, sleeps on the floor in his sister’s one-bedroom flat, and relies on Mr. C to supplement his monthly income. Mr. C and his wife want her son to join them in the UK.

In applying the current requirements of the UK Immigration Rules, as well as the Immigration (European Economic Area) Regulations 2006, to the above scenarios, it does appear that EEA and Swiss nationals have far greater rights with regard to family reunification than British citizens do. But what about citizens who are dual-nationals of the UK and of an EEA country?

In McCarthy v Secretary of State for the Home Department [2008] EWCA Civ 641 (11 June 2008), ‘the Court of Appeal found that a United Kingdom citizen resident in the United Kingdom cannot, by virtue of also having Irish nationality, claim a residence permit under the Directive, for they needed to be living in the United Kingdom pursuant to EEA rights and not simply because of their British nationality’.

It should be noted, however, that in McCarthy, the claimant, who had dual citizenship of Ireland and the UK, had resided in the UK her entire life and had failed to provide evidence that she was a ‘qualified person’. Because of this, the Asylum and Immigration Tribunal concluded that she had not exercised her Treaty rights in the UK as an EEA national, but rather that she resided in the UK as a citizen of it.

If the aforementioned Mr. A, Ms. B and Mr. C were dual nationals of the UK and of an EEA country, what would their options be?

If they had never really lived outside of the UK, one option might be to live abroad and exercise Treaty rights in another EEA country. They could either try their luck with the immigration legislation in that country, or they could return to the UK and attempt to apply under the 2006 Regulations whilst trying to distinguish their case from McCarthy.

Another option would be to remain in the UK, submit as strong an application as possible under the Immigration Rules or the 2006 Regulations, pleading the most exceptional compassionate circumstances, and hope that the Secretary of State uses her discretion.

A third option could be to renounce British citizenship and reside in the UK as an EEA national. As long as Mr. A, Ms. B and Mr. C are workers, self-employed, economically self-sufficient, students, jobseekers, retired or permanently incapacitated, they would have more family reunification rights than a British citizen whilst also enjoying nearly all the same benefits as a British citizen — the only real difference being the ability to vote in UK parliamentary elections and some referendums. And, if Mr. A, Ms. B and Mr. C are citizens of the Republic of Ireland, they would get all of the same benefits as British citizens.

Conclusion

No-one, regardless of race, gender, sexual orientation, religion or any other reason, should be treated or made to feel like a second-class citizen; but it is downright iniquitous that the UK government is now making some British citizens either consider renouncing their citizenship or wish that they were a Frenchman, a German, or, better yet, an Irishman.