EEA or UK Spousal visa?

[johannf]

My wife wants us (myself(South African), her and 2 kids under 6 yrs) to return to Northern Ireland where she was born. We are in the process of applying for the 2 kids' british passports and my wife already has "right of abode" from our travel to Belfas last year.

however I need the right documents to go with them, and am not sure which is better to get and more hassle free... An EEA family permit for myself, or a UK spousal visa?

i was also told by someone that because Belfast falls in the UK that I am not allowed to apply for a EEA permit, but that I must get a UK spouse visa? Is this true?

[Wanderer]

You can use either, EEA is free but takes longer, that's the long and the short of it.

[86ti]

If your wife is British only and has not exercised here treaty rights in another member state previously the EEA route is not open to you. Is she also an Irish citizen or would she be eligible? In that case the EEA family permit wouid be a possibility.

[johannf]

Well she was born in Belfast, so that probably means she's not eligible for Irish citizenship, or is she? I'm not sure what is meant by exersising treaty rights, sorry, but she hasnt been back to Belfast since she moved over here to SA in the 1980's.....

My thinking was that because she was born in N.Ireland that she's automatically a EEA citizen?

[86ti]

She is an EEA citizen if she is a national of one of the EEA member states. What is her nationality? 'Exercising treaty rights' means that she was econmically active in another member state but obviously that doesn't apply to your case anyway. So its back to her nationality. As she was born on the Irish island before the change in nationality law she may well already be Irish. But little do I know about that and I hope someone else knows more.

[johannf]

she was born in 1977. What year was the change of nationality to UK? 1972?

Nevertheless, looks like I'll have to take the UK spouse visa route. Was hoping to avoid this because of the very high cost!

But thanks for the clarification 86ti ! much appreciated.

[Wanderer]

If she was born in NI then she;s both a British and an Irish citizen and can't use both immigration routes. Obviously she'd need to apply for her Irish passport.

[hughie33]

Hi
something that you might want to take into account if you have the money is the time it takes to process the EEA route.
At least the way we did it we applied for a Family Permit in Japan, issued after 10 days and now are applying for the residency card in the UK which will take 6 month by the looks of it.

if you apply for the UK spouse visa outside the UK it only take 10 days to process or at least it does in Japan. If I had known this at the time I think it would have being £600 well spent.

Why they are so slow in the UK and for doing the same thing so fast in Manila (South East Asia processing centre) baffles me.

[johannf]

Wanderer, will keep that in mind. However, we were told by the people that is assisting us with our applications, that apparently the UK immigration rules supercede the irish ones, so we still have to go the UK route...not sure how true this is, but I'm assuming these ppl know what they're talking about as they've been doing applications for some time....?

Hughie33, my wife and I spoke about it last night and have decided to just go ahead and get the spouse visa. It is very expensive, but as you say, is probably the better option as it also takes around 2-3 weeks to get it here in South Africa...

[Wanderer]

Wanderer, will keep that in mind. However, we were told by the people that is assisting us with our applications, that apparently the UK immigration rules supercede the irish ones, so we still have to go the UK route...not sure how true this is, but I'm assuming these ppl know what they're talking about as they've been doing applications for some time....?

That's just not true mate, any dual EU national has the choice. And anyone born in Northern Ireland is a dual EU national. No-ones taking about Irish rules either, we're talking about EEA rules.

Who are the people assisting you? Are they OISC registered or qualified Solicitors? Even if they are there's no need to get assistance, basically it's a form-filling in exercise.

[86ti]

Yes, right. Dual nationals can choose though I am still wondering about this.

[johannf]

Thats very interesting then. All I know is that this company who assists ppl in getting their british passports and visas, is registered with the british consulate here in South Africa. They were quite helpfull with our travel visas to the UK last year, but seems its abit more of a challenge with my situation, being a non-EU non-UK person...

This morning we phoned the Irish Embassy to find out if it is not maybe less of a hassle, and more affordable for us to enter Northern ireland under Irish laws... well it seems no problem if we were to stay in Dublin, but when we mentioned that we are going to Belfast (northern ireland) the woman at the embassy said she couldnt help us because she doesnt know about british laws, etc. So it didnt really help us much. But I'm thinking, surely the same irish rules should be applicable in northern ireland?

From what we were now told by the woman at the Irish Embassy, i can travel with my wife, on my South African passport, to Dublin, but then have to register as an alien in Dublin, and they will either issue me with a registration number or issue me a 'green card'... or my employer will have to apply for a greencard for me. This is absolutely fine with me, as my first priority is to get a job.

But the last thing we want to have happen, is that we go the Irish route, and we run into problems with the border agency etc. and me not being entitled to work etc. We want to make sure all is done correctly. We cant afford to come back to SA as we are giving up everything, and selling all our belongings so we have money to support ourselves there.

[johannf]

Well the question is, am I even entitled to an EEA family permit if my wife has not exersized her treaty rights or lived in N.Ireland since the 80's?

Yes she is entitled to irish citizenship according to the Irish embassy.

[86ti]

... Northern ireland under Irish laws... But I'm thinking, surely the same irish rules should be applicable in northern ireland?

I wonder if you actually see the political explosivness here...

Anyway, as your wife is an Irish citizen you can make use of the EEA route in the UK which also includes Northern Ireland.

As you wife is also a British citizen (is that right?) you should be able to make use of the EEA route in Ireland.

In both states you can also make use of the national law if you wish so.

[johannf]

Yes, she is an irish citizen, and because she was born in northern ireland which is part of UK she is also a british citizen. She already obtained her "right of abode" when we came over for 2 weeks last year...

Ok, so then what I need to do is to contact the British consulate and find out about the EEA family permit. Allthough I have a feeling they will tell me I must apply for the UK spouse visa... gut feel i guess. But i should have a choice, not so?

Whichever way, as long as we can get over there with the right papers, and I am entitled to start working there a.s.a.p.

[vinny]

6.3.1 Union citizens' rights of entry and residence

A number of cases have concluded that a British Citizen’s right of residence in the UK is derived from national law, not EC law. This was the case even when that British Citizen had dual nationality with another EU state. Thus in McCarthy v SSHD [2008] EWCA Civ 641 the appellant, who had dual British/Irish nationality was not residing in the UK, where she had lived all her life, pursuant to the Citizens’ Directive. Therefore her Jamaican husband could not obtain a right of residence as the family member of an EU national under the Directive. There was a similar conclusion in EN and AN (EEA reg 12: British Citizens) Kenya [2008] UKAIT 00028 in which the Kenyan children of a woman who married a dual British/Irish national and then moved with him to Northern Ireland could not benefit as the family members of an EU national. He was residing in the UK pursuant to domestic not European law.

[johannf]

tx vinny. seems the UK spouse visa is the way to go then.

thanks guys for being very helpfull! This emigration process can be quite daunting and slightly confusing. So your help in clarifying things are really much appreciated!

Ps - I emailed the British consulate and asked about the EEA family permit. So it'd be interesting to get their feedback on it.

[86ti]

And the Clayton book also mentions that the McCarthy case went to the ECJ. I suppose thats the case the EUN mentions.

[86ti]

I just wonder what if you had only a single EEA nationality but have never lived in that member state but somewhere outside the EEA all your life.

[smalldog]

Interesting that the UK government is changing its position on this -- in the past I've also made use of the policy that dual British/Irish citizens could choose either route. Not allowing the EEA route seems consistent with the EEA regulations, but I wonder if it could be challenged on the grounds of the Good Friday Agreement, in which the British and Irish governments agreed to:

recognise the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose

http://www.nio.gov.uk/agreement.pdf

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[Obie]

The case of dual community national claiming right of residence under community law in one of the country for which they hold citizeship, has been referred to the ECJ.

I believe the defacto policy now, according to dual nationals who have applied for their spouse for an EEA family permit in the past, is that it is issued without any question being asked.

The old policy will be inconsistent with community law, nevermind the Goodfriday agreement, which i believe the UK will argue is outside the scope of community law.

Lots of caselaw include, Chen and Ingetraut Scholz have all indicated that, it doesn't matter whether the national has never been in the country of her nationality, or moved from one memberstate to another. So long as they hold the nationality of another memberstate other than the one in which they reside, they are covered by community law.

[vinny]

See also DOJ refusing EU Treaty Rights because of Dual Citizenship!!! Thread.

[Monifé]

And the Clayton book also mentions that the McCarthy case went to the ECJ. I suppose thats the case the EUN mentions.

That case is due to be heard in the ECJ by the end of October.

I am also bringing High Court Judicial Review proceedings against the Deparment of Justice in Ireland as they refused my partner residency on the basis of my Irish citizenship. (Dual Irish/British)

The difference in our case (to the McCarthy case) is that the DOJ issued me with a permanent residence certificate stating that I am a British national living in Ireland with the right of permanent residency.