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Moderators: Casa, Obie, EUsmileWEallsmile, batleykhan, meself2, geriatrix, John, ChetanOjha, archigabe, push, JAJ, ca.funke, Amber, zimba, vinny
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.Khaled31000 wrote:So it mean if you are married to british/European you have right to apply for EEA family members visa??????
Your reading of that opinion appears at variance and antonymous to mine. It seem contrary to the opinion itself.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.
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 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.
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.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.
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 yearsObie wrote:Your reading of that opinion appears at variance and antonymous to mine. It seem contrary to the opinion itself.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.
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.
Well you will have to challenge their action, it seems on it face, that this action is unlawful.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
secret.simon wrote:The OP's issue was resolved in a different way from the AG's opinion on 30th May.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 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.
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 2011GMB wrote: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:Khaled31000 wrote:Can you please explain to me what is mean thanksKhaled31000 wrote:I don't know what is mean but I done the appeal and I'm waiting for that court datevinny wrote:I think the transitional provisions protects you.
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.
vinny wrote:secret.simon wrote:The OP's issue was resolved in a different way from the AG's opinion on 30th May.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 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.
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.pochaco wrote:I recommend you to follow Parm Saini on Twitter. He is representing Lounes and publishes there any relevant news.
Yes, depending on the post-Brexit terms.confusedandsad wrote:Hi all, if I am given the EEA residence card and then my wife becomes a british citizen (already a spanish citizen) I have been told my EEA residence card becomes void.
On this basis, can my wife remain a british resident for 5 years and then apply for citizenship once I get PR?