EEA case law

[secret.simon]

@mclook23,
That looks like an email from an EU body. Could you revert to them with the following questions?

Does PR earned under Directive 2004/38/EC in a country coexist with the citizenship of the same country or is it subsumed by it?

If an EEA citizen has exercised treaty rights in another EEA country, do the status granted by Directive 2004/38/EC last in perpetuity? Or is there a limiting factor other than absence from the country for more than two years?

The McCarthy judgment is specific to people who have never exercised treaty rights in the past. But what is the position on EEA citizens who "move to" another EEA country and subsequently get citizenship in their new country? As they have moved under rights given by the EU treaties, are they covered for life by EEA law, specifically Directive 2004/38/EC?

If the argument that once earned EEA treaty rights last into perpetuity holds, that will make the Surinder Singh route so easy that the Immigration Rules will practically cease to apply.

[mclook23]

Hi,

will keep you updated on this.

[mclook23]

Hi,

here is an UPDATE. Please share, because this information is relevant for ALL people in the same situation. And by the way I was right what I thought!

##

Thank you for contacting us.

Question 1: Does the citizen lose the PR status as a dual national under EEA law?

Article 21(1) of the Treaty on the Functioning of the European Union stipulates that every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect. The respective limitations and conditions are to be found in Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. You can download consolidated version of the Directive in English at
http://eur-lex.europa.eu/LexUriServ/Lex ... 616:EN:PDF

According to Article 16(4) of the Directive, once acquired, the right of permanent residence can be lost only through absence from the host Member State for a period exceeding two consecutive years. Acquisition of nationality of the host Member State does not negatively affect the rights acquired under the Directive.

Question 2: In regard to McCarthy C-434/09 judgement which says between "a person who holds the nationality of the host member state and has NEVER exercised their right of free movement and residence..." does this apply to the citizen who became national of the HOST MEMBER STATE who in difference to the judgement has exercised EU Treaty rights.

The Commission considers that a blunt disqualification of dual national from the benefits mobile EU citizens enjoy under the Directive would be unlawful. The operational part of the judgment of the Court of Justice in case McCarthy is markedly more qualified. The Court of Justice stated that "Article 3(1) of Directive 2004/38/EC […] must be interpreted as meaning that that directive is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State."

Moreover, the Court of Justice continued that "Article 21 TFEU is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State, provided that the situation of that citizen does not include the application of measures by a Member State that would have the effect of depriving him of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen or of impeding the exercise of his right of free movement and residence within the territory of the Member States."

Question 3:Does a NON-EEA family member who holds a Permanent Residence card require a Schengen visa, if he / she visits a Schengen country (e.g. Brussel) with the national who holds the dual nationalities?

No entry visa is needed where the family member concerned holds a valid (permanent) residence card issued under the Directive and accompanies or joins the EU citizen in the host Member State.

We hope you find this information useful. Please contact us again if you have other questions.

With kind regards,
EUROPE DIRECT Contact Centre
http://europa.eu - your shortcut to the EU!

Disclaimer
Please note that the information provided by EUROPE DIRECT is not legally binding.

[secret.simon]

I just totally love their disclaimer. It is like a congrajulatory sentence with a "but" half-way down that completely negates all that was said before.

So, as I understand it, the Commission broadly agrees wwith mgb, that rights earned under the Directive 22004/338/EC exist in perpetuity. So, once you have moved to another member country and have gained its citizenship, you will have access, for life (either your own or that of the EU), to EEA immigration laws.

Now all we need is a test case to take this proposition to the High Court, so that they can ask the ECJ to give a definitive binding ruling on this issue. Hopefully, they should also clarify if somebody who had exercised the Surinder Singh route in the past can do so for life without re-exercising treaty rights in another EEA country.

[secret.simon]

Reflecting on the last post by the OP, which paraphrased a response from Europe Direct, that would seem to me to suggest that there are two classes of citizens in every EEA country; ones who have never exercised treaty rights and ones who have at any point in their life exercised treaty rights. The latter seem to enjoy a choice as to whether they (and crucially their family members) should be governed by national law or by EU law. The former have no such choice.

Firstly, that seems to me to be the first step towards the creation of a United States of Europe.

Secondly, if such an intrepretation is upheld by the courts, I hope that the rules on forum shopping (of choosing which laws apply to you) are more clearly defined.