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Do dual EU-UK citizens have rights under EU law?

Use this section for queries concerning applications on any of the EEA series of forms, and also for applications for EEA Family Permits.

Moderators: Casa, push, JAJ, ca.funke, Amber, Zimba, vinny, Obie, EUsmileWEallsmile, batleykhan, geriatrix, John, ChetanOjha, archigabe

pochaco
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Re: Do dual EU-UK citizens have rights under EU law?

Post by pochaco » Tue May 30, 2017 10:42 am


Khaled31000
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Re: Do dual EU-UK citizens have rights under EU law?

Post by Khaled31000 » Tue May 30, 2017 11:33 am

So it mean if you are married to british/European you have right to apply for EEA family members visa??????

secret.simon
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Re: Do dual EU-UK citizens have rights under EU law?

Post by secret.simon » Tue May 30, 2017 12:45 pm

Khaled31000 wrote:So it mean if you are married to british/European you have right to apply for EEA family members visa??????
Not so fast. It was only the opinion of the Advocate-General assigned to the case. It will now be decided by the whole Court, which will give a judgment that will be passed onto the High Court in London. At that point, it becomes a part of UK law.

The opinion (which is not a judgment yet) is surprisingly nuanced for one originating from Luxembourg. It agrees with the UK government that a dual EEA/UK citizen can not rely on Directive 2004/38/EC, even by analogy, in bringing their non-EEA family members to the UK. It does find grounds for family reunion in the Treaties and therefore confers derivative right of residence on such family members. Crucially, permanent residence is a concept under the Directive, while derivative rights of residence, such as Chen and Zambrano, do not carry a right of permanent residence or to retain residence in case of divorce.
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.

Obie
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Re: Do dual EU-UK citizens have rights under EU law?

Post by Obie » Tue May 30, 2017 12:55 pm

secret.simon wrote:
The opinion (which is not a judgment yet) is surprisingly nuanced for one originating from Luxembourg. It agrees with the UK government that a dual EEA/UK citizen can not rely on Directive 2004/38/EC, even by analogy, in bringing their non-EEA family members to the UK. It does find grounds for family reunion in the Treaties and therefore confers derivative right of residence on such family members. Crucially, permanent residence is a concept under the Directive, while derivative rights of residence, such as Chen and Zambrano, do not carry a right of permanent residence or to retain residence in case of divorce.
Your reading of that opinion appears at variance and antonymous to mine. It seem contrary to the opinion itself.

Yes the Advocate General imply that the directive should be read by analogy and confer right on the EU national who has naturalised to British Citizen through Article 21 of the Treaty.

It applies surinder singh in a less restrictive form to O B case 456/2012.
After thinking long and hard, I have come to the conclusion that brexit is a cancer. The only good brexit is a dead brexit.

pochaco
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Re: Do dual EU-UK citizens have rights under EU law?

Post by pochaco » Tue May 30, 2017 12:57 pm

secret.simon wrote:It does find grounds for family reunion in the Treaties and therefore confers derivative right of residence on such family members. Crucially, permanent residence is a concept under the Directive, while derivative rights of residence, such as Chen and Zambrano, do not carry a right of permanent residence or to retain residence in case of divorce.
Are you saying that even if the ECJ follows the lines of the Advocate General, the non-EU spouse of a dual EU-British citizen will never acquire PR, and as a consequence never will be able to apply for British citizenship?

secret.simon
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Re: Do dual EU-UK citizens have rights under EU law?

Post by secret.simon » Tue May 30, 2017 1:02 pm

Obie wrote:Your reading of that opinion appears at variance and antonymous to mine. It seem contrary to the opinion itself.

Yes the Advocate General imply that the directive should be read by analogy and confer right on the EU national who has naturalised to British Citizen through Article 21 of the Treaty.
You are correct and my previous post was wrong. I should not have been surprised at the nuance of the opinion as it was entirely what I expected.

The Directive does not apply directly, but by analogy.
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.

Khaled31000
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Re: Do dual EU-UK citizens have rights under EU law?

Post by Khaled31000 » Tue May 30, 2017 1:26 pm

Obie wrote:
secret.simon wrote:
The opinion (which is not a judgment yet) is surprisingly nuanced for one originating from Luxembourg. It agrees with the UK government that a dual EEA/UK citizen can not rely on Directive 2004/38/EC, even by analogy, in bringing their non-EEA family members to the UK. It does find grounds for family reunion in the Treaties and therefore confers derivative right of residence on such family members. Crucially, permanent residence is a concept under the Directive, while derivative rights of residence, such as Chen and Zambrano, do not carry a right of permanent residence or to retain residence in case of divorce.
Your reading of that opinion appears at variance and antonymous to mine. It seem contrary to the opinion itself.

Yes the Advocate General imply that the directive should be read by analogy and confer right on the EU national who has naturalised to British Citizen through Article 21 of the Treaty.

It applies surinder singh in a less restrictive form to O B case 456/2012.
With me I had 5 years resident resident card and last month i was coming from back home the immigration officer told me you not title for it because your wife she have british passport after 4 years

pochaco
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Re: Do dual EU-UK citizens have rights under EU law?

Post by pochaco » Wed May 31, 2017 9:35 am

According to Barrister Parm Saini who is representing Lounes: "Judgment should be given in the coming months, but no specific date is given as yet."

vinny
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Re: Do dual EU-UK citizens have rights under EU law?

Post by vinny » Wed May 31, 2017 10:45 am

This is not intended to be legal or professional advice in any jurisdiction. Please click on any links for further information. Refer to the source of any quotes.
We do not inherit the Earth from our ancestors, we borrow it from our children.

Obie
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Re: Do dual EU-UK citizens have rights under EU law?

Post by Obie » Wed May 31, 2017 10:36 pm

Khaled31000 wrote: With me I had 5 years resident resident card and last month i was coming from back home the immigration officer told me you not title for it because your wife she have british passport after 4 years
Well you will have to challenge their action, it seems on it face, that this action is unlawful.
After thinking long and hard, I have come to the conclusion that brexit is a cancer. The only good brexit is a dead brexit.

Cupcake567
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Re: Do dual EU-UK citizens have rights under EU law?

Post by Cupcake567 » Tue Jun 06, 2017 8:28 pm

Good evening,

Can anybody here advise on my concern, please? Would the decision made on the 30th of May affect below somehow?

1.EEA national exercising treaty rights in UK for more than 5 years, is getting married to non-EEA national who is leaving outside UK. After being married they would like to live together in UK. Can EEA national apply for naturalisation and EEA Family Permit in the same time or would one of the applications be rejected?

2.EEA/British national (dual citizenship) is getting married to a non-EEA citizenship. Which rights apply to the person with dual citizenship, who is exercising treaty rights in UK, when applying for non-EEA spouse to join in UK? They need to apply for visa for spouse joining British citizenship or still can apply for EEA family permit? If visa, what would be the conditions?

Many thanks for help.

liberty1
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Re: Do dual EU-UK citizens have rights under EU law?

Post by liberty1 » Wed Jun 07, 2017 12:46 pm

Hi all, I'm no expert nor lawyer but trying to understand the consequences of the Lounes case outcome on the 30th of May

https://www.theguardian.com/politics/20 ... judge-says

(previous article:
https://www.theguardian.com/politics/20 ... -nationals)

so what happens now? what is going to change?

Any info or explanation welcome

thanks!

vinny
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Re: Do dual EU-UK citizens have rights under EU law?

Post by vinny » Wed Jun 07, 2017 11:39 pm

secret.simon wrote:
Cupcake567 wrote:Can you, or maybe anobody else, advise how this decision made on 30th May affected people with dual EA and British citizenship? I am looking for a simplified explanation, if possible.
The OP's issue was resolved in a different way from the AG's opinion on 30th May.

The Advocate General's opinion is just that, an opinion that the Court will take into account when making it's decision. It is likely to follow it, but it is not a judgment of the Court yet. The judgment is expected later in the year.

So, at the moment, there has been no change in the law.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any links for further information. Refer to the source of any quotes.
We do not inherit the Earth from our ancestors, we borrow it from our children.

Khaled31000
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Re: Do dual EU-UK citizens have rights under EU law?

Post by Khaled31000 » Thu Jun 08, 2017 10:39 am

GMB wrote:
Khaled31000 wrote:
Khaled31000 wrote:
vinny wrote:I think the transitional provisions protects you.
I don't know what is mean but I done the appeal and I'm waiting for that court date
Can you please explain to me what is mean thanks
Vinny is referring to the Transitional Provision put in place in the UK after the ECJ's McCarthy ruling (McCarthy Transitional Provision). For you the two critical dates are:
16 July 2012 - on this date did you have a right to reside in the UK as the family member of an EEA national? It appears you did.
16 October 2012 - on this date did you either have an EEA Residence Card already, or had you applied for one? You say you either had one or had applied for one on 15 Sep 2012 (you weren't very clear) so in either case, you meet this criterion as well.

Therefore you are protected by the McCarthy Transitional Provision, and the fact your spouse became a UK citizen has no effect on you at all. The Home Office was wrong to rescind your residence card. You could apply for another one, making VERY clear in a cover letter that you fall under the McCarthy provision, and that the cancelation of your previous RC was contrary to UK law. Or you could go through the courts to seek redress, but I know nothing about that.
Ok sorry for not explaining properly so in 15 September 2012 I send my application and my wife she is born british and had her irish passport in 2011
And on March 2013 I had my EEA FAMILY MEMBERS R resident
And on 12/2/2017 I was coming from from back home my wife give her british passport they said you are not allowed to have WAS FAMILLY MEMBER VISA this why they cancelled my visa
I hope I explained to you better this time

Cupcake567
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Re: Do dual EU-UK citizens have rights under EU law?

Post by Cupcake567 » Thu Jun 08, 2017 9:33 pm

vinny wrote:
secret.simon wrote:
Cupcake567 wrote:Can you, or maybe anobody else, advise how this decision made on 30th May affected people with dual EA and British citizenship? I am looking for a simplified explanation, if possible.
The OP's issue was resolved in a different way from the AG's opinion on 30th May.

The Advocate General's opinion is just that, an opinion that the Court will take into account when making it's decision. It is likely to follow it, but it is not a judgment of the Court yet. The judgment is expected later in the year.

So, at the moment, there has been no change in the law.

Dear vinny - thank you for this. So as far as I understand nothing has been changed and while you hold dual citizenship British/EEA you cannot apply for EEA family permint according to the current law. You mentioned that 'The judgment is expected later in the year' - was there any specific date given yet as I can't find it. Is there any chance, you think, the law will allow dual passport holders to keep a right of EEA while British too. Apologies for all these questions but really lost in this matter now.

Many thanks.

anic00
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Re: Do dual EU-UK citizens have rights under EU law?

Post by anic00 » Sat Jun 10, 2017 8:55 am

Same here; I applied for citizenship 3 months ago (no response from the HO yet) and the timing for this judgement is crucial. I also don't know if the Home Office would change their rules straight after the judgement.

If anyone could please advice, it would be a great help for me.

Thanks
Andrea

pochaco
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Re: Do dual EU-UK citizens have rights under EU law?

Post by pochaco » Tue Jun 13, 2017 4:37 pm

I recommend you to follow Parm Saini on Twitter. He is representing Lounes and publishes there any relevant news.

secret.simon
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Re: Do dual EU-UK citizens have rights under EU law?

Post by secret.simon » Thu Jun 15, 2017 4:20 am

pochaco wrote:I recommend you to follow Parm Saini on Twitter. He is representing Lounes and publishes there any relevant news.
Is his Twitter handle @PPSSaini? Searching for him on Twitter suggests that he is being investigated for misconduct and has shut down his Twitter account. His law firm is on Twitter at @twelveoldsquare.
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.

pochaco
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Re: Do dual EU-UK citizens have rights under EU law?

Post by pochaco » Thu Jun 15, 2017 8:49 am

You hit me for six. But you are right Saini is not on Twitter anymore.

I can only hope that this will not interfere with the Lounes case.

@MTGsolicitors also seem to be involved in Lounes:

https://twitter.com/MTGsolicitors/statu ... 2793399296

confusedandsad
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Re: Do dual EU-UK citizens have rights under EU law?

Post by confusedandsad » Thu Jun 15, 2017 2:51 pm

I am confused.

I am marrying my fiance next month. She has a spanish passport and she has just been given her british citizenship. She can apply for her british passport next year.

I was planning on applying for a registration certificate or
residence card as the family member of a European Economic Area (EEA) or Swiss national

https://www.gov.uk/government/uploads/s ... -03-17.pdf

Am I no longer entitled to do so? Do i now have to go through British law?

Very confused.

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