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1) A dual citizen is only considered to be a BC by UK domestic law.mclook23 wrote:Hi,
I have an interesting and challenging question to the community where I require your valued opinion:
An example:
An EEA national has obtained a permanent right to reside under EEA regulation. The EEA national then later become also a British citizen. The EEA national holds subsequently two nationalities.
1. Does the EEA national lose the permanent right to reside under EEA regulation by becoming a British citizen?
2. If e.g. the NON-EEA spouse (who has also obtained a permanent right to reside under EEA regulation) wish to visit with the EEA national (who is at the same time also a British citizen) a Schengen state country (e.g. Netherland), does the NON-EEA spouse require a Schengenvisa or NOT (because she has a permanent right to reside under EEA regulation)?
3. If e.g. the parents of the EEA national wish to join him, can they apply under EEA route, because the EEA national (who is a British citizen) has already exercised EU Treaty rights?
Looking forward....
1) Not sure; I was reasoning by logic about PR based on what I know about ILR.mclook23 wrote:Hi,
many thanks for your comment.
1) My understanding was that under EEA regulation PR status will be lost if the EEA national is absent for more than two consecutive years from the UK. So, if an EEA national becomes a British citizen, then under EEA regulation it should not implicate that the British citizen lost PR status (which was obtained under EEA regulation).
Do I understand it wrong?
In regard to 2) Let's assume NON-EEA spouse has PR status confirmed. Does the NON-EEA spouse require a Schengenvisa or NOT (because she has a permanent right to reside under EEA regulation)?
In regard to 3)
The key question could be whether PR status was lost or not (by becoming a British citizen). If it was not lost, then one would assume that EEA regulation is still applicable, because EU Treaty rights was / has been exercised.
There is a difference between a British citizen WHO has never exercised EU Treaty Rights and a EEA national who exercised EU Treaty Rights and then became a British citizen.
Does this makes sense?
mclook23 wrote:1. Does the EEA national lose the permanent right to reside under EEA regulation by becoming a British citizen?
The original question was not appropriately framed. The situation is more nuanced.mclook23 wrote:1) My understanding was that under EEA regulation PR status will be lost if the EEA national is absent for more than two consecutive years from the UK. So, if an EEA national becomes a British citizen, then under EEA regulation it should not implicate that the British citizen lost PR status (which was obtained under EEA regulation).
That is not just UK domestic law, but case law from the ECJ.noajthan wrote:A dual citizen is only considered to be a BC by UK domestic law.
PR status is a part of Directive 2004/38. As it does not apply to dual British/EEA citizens, any underlying PR status that the EEA citizen had in the past is extinguished and is superseded by British citizenship.Since, as stated in paragraph 29 of this judgment, the residence of a person residing in the Member State of which he is a national cannot be made subject to conditions, Directive 2004/38, concerning the conditions governing the exercise of the right to move and reside freely within the territory of the Member States, cannot apply to a Union citizen who enjoys an unconditional right of residence due to the fact that he resides in the Member State of which he is a national.
mclook23 wrote:3. If e.g. the parents of the EEA national wish to join him, can they apply under EEA route, because the EEA national (who is a British citizen) has already exercised EU Treaty rights?
Nope. There is no difference between a British citizen who has exercised treaty rights in the past and who has never exercised treaty rights in the past. Once you are a citizen, you are a citizen and your EEA rights against the UK are extinguished by your more proximate relationship of citizenship of the UK.mclook23 wrote:There is a difference between a British citizen WHO has never exercised EU Treaty Rights and a EEA national who exercised EU Treaty Rights and then became a British citizen.
I would concur - I am not a lawyer.secret.simon wrote:I am not a lawyer (and I believe neither is noajthan), so I am not learned in the law to be giving a legal opinion, but logic compels me to come to a similar conclusion to noajthan's.
...
The original question was not appropriately framed. The situation is more nuanced.
...
Nope. There is no difference between a British citizen who has exercised treaty rights in the past and who has never exercised treaty rights in the past. Once you are a citizen, you are a citizen and your EEA rights against the UK are extinguished by your more proximate relationship of citizenship of the UK.
What the Surinder Singh route allows you to do is that if you have strengthened or created family life while you are exercising your treaty rights (which only exist in an EEA country of which you are not a citizen) in another EEA country, then those members of the family can be treated under EEA law.
So, if you have exercised treaty rights in a country of which you are not a citizen and come back without any family members, you have no right to get them later. But if such a family member met you or stayed with you while you exercised treaty rights, they come under the purview of EEA law and the Surinder Singh judgment.
Q1 - I think what the OP was attempting to ask was if s/he retained EEA rights in addition to her British citizenship, so that she could rely on them rather than use the UK Immigration Rules. As the McCarthy judgment referenced above made clear, the answer is No.noajthan wrote:I can't see any practical value to Q1; a BC has ROA that's all there is to say.
The letter of the law can not provide for every eventuality and so, it is only appropriate that judges do use logic to bridge the gaps and holes in the law. This thread is intituled EEA Case law and we have looked at atleast three examples of where the judges have created rights that are not laid out in the text of the directive or treaties.noajthan wrote:One thing I have learned in this field is you can't rely on logic or even common-sense. It's all about the letter of the law or directive or regulation.
McCarthy was a case that was very limited in scope, the judge's remarks on the case reflected that.mclook23 wrote:Hi,
here an excerpt of "McCarthy C-434/09"
In the ECJ case of McCarthy the court stated that a person who holds the nationality of the
host member state and has never exercised their right of free movement and residence:
does not benefit from the terms of the Directive 2004/38/EC (the Directive), even if they
hold dual nationality with another EEA member state, and
their family members cannot gain a right of residence under the directive on the basis of
their relationship to such a national.
So the McCartthy case says "AND has NEVER exercised their right of free movement and residence".
In other words I there must be a difference between a person who holds the nationality of the host member state and has exercised their right of free movement and residence.
I understand the explanation given by the community, however it appears that there is somewhere an area which is not clearly defined.
The impact of McCarthy case is conveyed quite clearly here:EEA national” means a national of an EEA State who is not also a British citizen
The new Regulations do take an expansive approach to the Court of Justice case law to restrict the rights of people to reside in the UK.
For example, family members of dual British/EEA can no longer enjoy residence rights under the Regulations (unless the British/EEA national has lived in another EEA State) and must rely instead on the increasingly restrictive Immigration Rules.
Also see Paragraph 26.In that context, the Supreme Court of the United Kingdom decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘1. Is a person of dual Irish and United Kingdom nationality who has resided in the United Kingdom for her entire life a “beneficiary” within the meaning of Article 3 of Directive 2004/38 …?
That is a treaty right and as long as it is exercised, Community law comes into play.Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
(a) the right to move and reside freely within the territory of the Member States;
On the face of it, it would seem to reinforce the OP's point that s/he is still covered by the Directive as she had, in the past, exercised EEEA treaty rights by moving to the UK.First, according to Article 3(1) of Directive 2004/38, all Union citizens who ‘move to’ or reside in a Member State ‘other’ than that of which they are a national are beneficiaries of that directive.
Thus, even if the OP were to be exercising treaty rights, s/he has at the very least taken him/herself out of the purview of Directive 2004/38/EC and hence her family members can not benefit from her having been a former EEA national resident in the UK....the rights of residence referred to in Directive 2004/38, namely both the right of residence under Articles 6 and 7 and the permanent right of residence under Article 16, refer to the residence of a Union citizen either in ‘another Member State’ or in ‘the host Member State’ and therefore govern the legal situation of a Union citizen in a Member State of which he is not a national.
I fail to see any other interpretation of the judgment. It is not an expansive approach, it is the only possible approach that fulfils the logic of what the ECJ said.noajthan wrote:The new Regulations do take an expansive approach to the Court of Justice case law to restrict the rights of people to reside in the UK.
A person with PR status don't have to exercise treaty rights anymore.secret.simon wrote: On the face of it, it would seem to reinforce the OP's point that s/he is still covered by the Directive as she had, in the past, exercised EEEA treaty rights by moving to the UK.
But (and there is always a but in such cases) Paragraph 34, referred to in an earlier post, states that because the right to reside in a country of which a person is a citizen exists in international law independently of Community law, a person is not exercising treaty rights by residing in a country of which s/he is a citizen. His/her rights as a citizen of the country supercede treaty rights.
Except when the Directive itself becomes non-operative. THE ECJ was quite clear that the Directive does not apply in any country of which the person is a national.mgb wrote:I my opinion a status which was given via the directive can only be revoked via the directive.
Does a person with PR status not need to be exercising treaty rights for the purpose of getting family members to join them in the UK?mgb wrote:A person with PR status don't have to exercise treaty rights anymore.
Not exactly. Only if the person never exercised treaty rights.secret.simon wrote: Except when the Directive itself becomes non-operative. THE ECJ was quite clear that the Directive does not apply in any country of which the person is a national.
No.secret.simon wrote: Does a person with PR status not need to be exercising treaty rights for the purpose of getting family members to join them in the UK?
Even if the person has exercised treaty rights, the exercise of treaty rights cease when s/he becomes a citizen of a country. His right to reside as a citizen eclipse the treaty right of freedom of movement and hence the Directive ceases to apply.mgb wrote:Not exactly. Only if the person never exercised treaty rights.
I was under the impression that even EU citizens with PR status in the UK needed to exercise treaty rights for the five years it would take their non-EEA family members to acquire PR. Is that not correct?mgb wrote:No.secret.simon wrote: Does a person with PR status not need to be exercising treaty rights for the purpose of getting family members to join them in the UK?
Ceasing rights is not mentioned in the directive. Only reasons for losing rights.secret.simon wrote:Even if the person has exercised treaty rights, the exercise of treaty rights cease when s/he becomes a citizen of a country. His right to reside as a citizen eclipse the treaty right of freedom of movement and hence the Directive ceases to apply.mgb wrote:Not exactly. Only if the person never exercised treaty rights.
I think we can agree to disagree on this pointmgb wrote:Ceasing rights is not mentioned in the directive. Only reasons for losing rights.
My somewhat simpler understanding is that UK law does not recognise a BC who happens to be a dual national with EEA citizenship to be an EEA national whilst they are in the UK;secret.simon wrote:I think we can agree to disagree on this pointmgb wrote:Ceasing rights is not mentioned in the directive. Only reasons for losing rights.I have mentioned my grounds for suggesting that the Directive itself ceasing to apply in the situation defined. But I still look forward to any posts disputing my logic, which I believe is the logic underpinning the judgment.
I would be very chary of such a sweeping statement. It is this kind of statement that elevates EU law over national law that could lead to a Brexit. And I speak as a pro-European.mgb wrote:You cannot kill eu law via national law.
There is no settled status. ILR is a status which can reached via the UK national immigration route.noajthan wrote:
So whilst UK will recognise said citizen's RoA in the UK as they are now a BC their previous settled status (ILR) has been superseded by the act of naturalisation as a BC.
Can you refer to this international law which supersede eu law?secret.simon wrote:
Also international law does trump EU law.
I find it odd you assert there is no 'settled status' in the context of UK immigration.mgb wrote:There is no settled status. ILR is a status which can reached via the UK national immigration route.
(sic)Settled is construed in accordance with section 33(2A) of the 1971 Immigration Act (as inserted by the British Nationality Act 1981) as being ordinarily resident in the UK without being subject under immigration laws to any restriction on the period for which (s)he may remain.
Once a person is settled they must continue to reside in the UK in order to retain their settled status
@noajthannoajthan wrote:I find it odd you assert there is no 'settled status' in the context of UK immigration.
In this case, could an Irish citizen married to a British citizen apply for naturalisation on arrival in the UK? And could Irish citizens apply for British citizenship within a year of arrival anyway?It is hereby declared that, notwithstanding that the Republic of Ireland is not part of His Majesty’s dominions, the Republic of Ireland is not a foreign country for the purposes of any law in force in any part of the United Kingdom....and references in any Act of Parliament, other enactment or instrument whatsoever, whether passed or made before or after the passing of this Act, to foreigners, aliens...shall be construed accordingly.
Certainly. It followed the line from my earlier post quoted by you.mgb wrote:Can you refer to this international law which supersede eu law?secret.simon wrote: Also international law does trump EU law.
It seems to me that immigration, not the Eurozone economy, is going to be the torpedo that sinks the EU ship. I am not sure if anybody on these forums noticed, but Switzerland's treaties with the EU (giving Swiss citizens the same status as EEA citizens) will expire in February 2017 because the Swiss people decided in a referendum to reimpose immigration controls and quotas. We have an EU membership referendum coming up in the next two years (more likely in 2016) and thus far it seems to be a close-run thing. The migration crisis on the continent has brought home to countries in Eastern Europe (so far countries of net emigration) that they will also be forced, by EU/Community law, to accept people whose culture is not aligned with theirs. I think their loyalty to the EU as a quasi-state will be sufficiently weakened for Cameron to win concessions on limiting EU control over migration.secret.simon wrote:It is a principle of international law (the Master Nationality Rule) that when a dual citizen is in the country of one of his nationalities, that country has the right to treat that person as if he or she were solely a citizen or national of that country.