Your Europe Advice: Re: Renouncing citizenship

Hi there

I'm just putting a reply from Your Europe Advice on here for others to see and consider.

Their answer is listed first below and you can find my original query below. It was about an Irish/British national renouncing British citizenship to rely on the Irish citizenship to apply for an EEA FP outside Europe

CC
_________

"Thank you for your enquiry to the Your Europe Advice service.
At the outset, I should advise that the issue of whether a person who has renounced his British citizenship can rely on Directive 2004/38/EC to have his civil partner take up residence with him in the UK on the basis that the EU citizen retains his Irish citizenship has not been decided upon by the Court of Justice of the EU to date.

In the McCarthy case, C-434/09, the Court of Justice decided that EU citizens who have never exercised their right of free movement cannot invoke Union citizenship to regularise the residence of their non-EU spouse. Where such persons are not deprived of their right to move and reside within the territory of the Member States, their situation has no connection with European Union law.
While Ms. McCarthy had not renounced her British citizenship in this case, like you, she held dual Irish/British citizenship and sought to rely on her Irish citizenship to have her non-EEA spouse take up residence with her in the UK. This was firmly rejected by the Court of Justice on the basis that she had not exercised a right of free movement in the EU. Your case could be similarly decided on the basis that although you are now residing in China, you have not exercised a right of free movement in the EU as you are not living or working in another Member State of the EU and seeking to return to the UK.
In response to your specific questions:
a) Your concern is well founded. You should be prepared that your partner s application for an EEA Family Permit may be rejected on the basis that despite your renunciation of your British citizenship, you cannot be regarded as having exercised EU Treaty rights analogous to the McCarthy case. You would have a right of appeal against the refusal but this may be of little value since there is no time limit on dealing with such appeals so your partner s application for an EEA Family Permit could remain in limbo for some time and ultimately be refused again.

b) If you are to have any chance of suceeding with your partner s application for an EEA Family Permit on the basis that you have renounced your British citizenship, this should be done before making the application and you should be able to confirm this at the time of making the application. However, even if you do this, success in being granted an EEA Family Permit is not guaranteed.

c) It is possible to re-apply for British citizenship having previously renounced same. The following webpage of the UK Border Agency explains the conditions: http://www.ukba.homeoffice.gov.uk/briti ... tizenship/

d) It should not be relevant that you were a British citizen when the civil partnership was registered and now seek to rely on your Irish citizenship to have your partner enter the UK. However, the McCarthy case is again relevant here. The question to be addressed will be whether there is any exercise of EU Treaty rights.

I note that if renunciation of your British citizenship is not successful in obtaining an EEA Family Permit for your partner, you plan to resort to the Surinder Singh route. From 1st January, it will now be a new requirement for those using the Surinder Singh route that the centre of [the British citizen] s life has transferred to the EEA State where [the British citizen] resided as a worker or self-employed person.

However, it is important for you to be aware that if you have renounced your British citizenship, and you have resided in Ireland for a period longer than three months, your partner can then make an application for an EEA Family Permit to enter the UK with you on the basis that you are an Irish national seeking to enter the UK. If you no longer hold British citizenship, you do not need to rely on Surinder Singh at all.

I trust that the above information is of assistance to you. Should you have any further queries concerning your rights in the EU, please do not hesitate to revert to the Your Europe Advice service - http://europa.eu/youreurope/advice/index_en.htm
I take this opportunity to wish you a Happy New Year.
Yours sincerely,
Your Europe Advice
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My original query is noted below:
"I am a dual Irish/British citizen from Northern Ireland. My civil partner (UK Civil Partnership) is from China and we currently live in China at present. In the near future, I will be renouncing my British Citizenship and sponsoring my Chinese civil partner in an application for an EEA Family Permit (the entry visa provided to EEA national family members).

I plan to return to Northern Ireland (part of the UK) to work as an Irish citizen exercising my EU Treaty Rights in a country of which I am not a citizen (I will have already renounced British citizenship by the time I enter the UK with my partner, provided the UK Embassy in China provides him with a visa).

I have 4 questions regarding my future situation:
1) Is there any provision which protects people who have decided to renounce British citizenship (which was achieved by the location of my birth, even though I now personally identify as being Irish) in successfully achieving an EEA Family Permit from the UK authorities (i.e. UK Embassy in China)? I am worried that our application will be rejected because I used to be a British citizen. In essence, I am worried that the Common Travel Area between the UK and Ireland, the Good Friday Agreement and the fact that Irish people are viewed as automatically 'settled' in the UK will prove to be a hindrance in my application. If I was rejected, would I have recourse to appeal? Would it be legal to be rejected?

2) As I will have renounced British citizenship by the time of our application, is it required that I produce a confirmation that I no longer possess British citizenship when my partner applies? I have noted that people who were born in England have had their spouse's EEA family permits rejected simply because the Embassy assumed that, by virtue of being born in England, that they had British citizenship. The same would apply to me. However, I am worried that having renounced British citizenship before the application may have a detrimental effect.

3) Is there provision, under the EEA Regulations (Free Movement) for a person who has originally renounced British citizenship (or other 'host country' citizenship) to get 'host country' citizenship again via the 5 year process of working and living in such a country? This would be the same as a French person working in the UK for 5 years and receiving British citizenship, or at least Permanent Residence.

4) Our civil partnership was undertaken at the British Consulate in Ho Chi Minh City (Vietnam) and I was regarded as a British citizen. Does it matter at all that I will no longer be a British citizen when we apply for the EEA family permit for my partner. I will, instead, be an Irish citizen only.

I have emailed all of these questions to the UK Home Office but, as always, have not received any response (as always seems to be the case nowadays).

I will be renouncing British citizenship in the very near future and would hope to have all the information available before I undertake this decision. if this is not the best way, i will consider the Surinder Singh route into the UK."

I do not agree with some of the points that have been raised in that reply, if you renounce BC, then that makes you Irish only, you could then apply for an accompany EU citizen FP, it will be treated just like any other Irish citizens, McCarthy should and will not have any bearing on decision. Happy new year CC.

Yes, I though that was a little strange too...but it's something to consider. I'm still confused...renounce or add 8 months to our quest for European citizenship for my partner...

Your Europe Advice are very helpful; they reply quickly and were even working on Jan 31st evening (European time). I'm impressed...even if it seems like bad news

Happy new year to you too!

Confused (as always)
CC

The process of bringing your partner to the UK on your Irish citizenship after renouncing the British one is in itself exercising treaty rights, McCarthy will not even be relevant in your circumstances any more, If you are Irish and no longer British what now then is it to do with you and McCarthy? they are pleasant people the Europe advice, no one can get it right all of the time.

dalebutt wrote:The process of bringing your partner to the UK on your Irish citizenship after renouncing the British one is in itself exercising treaty rights, McCarthy will not even be relevant in your circumstances any more, If you are Irish and no longer British what now then is it to do with you and McCarthy? they are pleasant people the Europe advice, no one can get it right all of the time.

I would not be so inclined to suggest that the advice given was not correct.

chaoclive wrote:Yes, I though that was a little strange too...but it's something to consider. I'm still confused...renounce or add 8 months to our quest for European citizenship for my partner...

I've read through the advice you've received, essentially they are suggesting that you are entering uncharted territory and that an application made on the basis of what you propose is not guaranteed.

I am by no means an expert, but reading court judgements, it appears that a great deal of weight is given to those who move to and reside in a member state of which they are not a national. Those who have not done this do not benefit from the directive.

I respectfully maintain my previous statement, I am prepared to change it if I am proven wrong, if op renounces BC, she will only regarded as been Irish only now, if an EU citizen wishes to visit another member state with their family member, it is an exercise of treaty right, if chaoclives decides to do so after renouncing BC, she will be doing so just like just like any other EU citizens? Am I missing something? If she is no longer BC then she would be moving to a member state of which she is not a national.

dalebutt wrote:I respectfully maintain my previous statement, I am prepared to change it if I am proven wrong, if op renounces BC, she will only regarded as been Irish only now, if an EU citizen wishes to visit another member state with their family member, it is an exercise of treaty right, if chaoclives decides to do so after renouncing BC, she will be doing so just like just like any other EU citizens? Am I missing something? If she is no longer BC then she would be moving to a member state of which she is not a national.

Happy New Year to you.

I can't argue with your analysis, on the face of it, it would appear to be correct. However, the problem is that this would be unchartered territory. The situation, is for now hypothetical. I imagine that McCarthy's team would have thought they had a strong case when they started out, but it didn't turn out that way for them. The referring UK court was unsure as to what EU law would say and so referred case for clarification. An attempt to circumvent McCarthy judgement may end up taking quite some time to resolve.

There is the Chen aspect of this case, and then the Good Friday, which essentially confer on Irish residents to choose whether they wish to be British or Irish, or both.

That case could easily be assimilated to that of an Irish Citizen who was born in China, never been to Ireland , and returning to the UK.

It either the renounciation has an effect or it doesnt. The advice seem to be that UK has a discretion on whether or not to accept it. Not sure that can be right.

This case seem more closely linked to Chen than McCarthy.

I suspect the answer is that they don't know for sure and are so not committing.

EUsmileWEallsmile wrote:

dalebutt wrote:I respectfully maintain my previous statement, I am prepared to change it if I am proven wrong, if op renounces BC, she will only regarded as been Irish only now, if an EU citizen wishes to visit another member state with their family member, it is an exercise of treaty right, if chaoclives decides to do so after renouncing BC, she will be doing so just like just like any other EU citizens? Am I missing something? If she is no longer BC then she would be moving to a member state of which she is not a national.

Happy New Year to you.

I can't argue with your analysis, on the face of it, it would appear to be correct. However, the problem is that this would be unchartered territory. The situation, is for now hypothetical. I imagine that McCarthy's team would have thought they had a strong case when they started out, but it didn't turn out that way for them. The referring UK court was unsure as to what EU law would say and so referred case for clarification. An attempt to circumvent McCarthy judgement may end up taking quite some time to resolve.

Happy new year to a respected moderator, whilst I agree with your opinion, I could be wrong? And indeed could be right? I might appear to have taken the easiest interpretation to this, it seems to be the logical conclusion to the matter, it might mean much, and perhaps different in the legal circus, I am not legally clued.

I have had several clients who have renounced their UK nationality after their spouse having been refused FPs on basis of McCarthy, so far they all have had their spouses subsequently obtain FPs, though one did take an email to ECM to bring them up to speed.