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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

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

Post by reynaldogr » Wed Apr 25, 2018 7:53 pm

The question that still is open, is if by derivative rights would they be able to be able to ever get a PR and then afterward BC. Keep in mind that Lounes case is for dual nationals EU nationals naturalised British, applying for a 5 year Residence Card for their non ea national spouses.
Most of this forum situation is slightly different as we are seeking PR after being issue with a RC, before naturalised British. I’m just assuming, will be contradictory to allow the Lounes case and not ours, but what will be the outcome, in regards this so call “derivative Rights” I ain’t got a clue. They could just reject our applications and issue our spouses with another RC valid for 5 years and keep this status forever....

Anyone with a different opinion? I know what the Lounes case full judgment days about not given a less favorable outcome as if it was only a non-EA national spouse of EA national (only) sponsor, but this word derivative is still being mentioned...

Br

silverman123
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Re: Do dual EU-UK citizens have rights under EU law?

Post by silverman123 » Wed Apr 25, 2018 8:55 pm

Hi @ Renaldogr
Well first i wish you all the best on your application.
In my viewpoint that home office was always depending on Macarthy (dual nationality)
Therefore they used to refuse any application under EEA route and the reason was Macarthy didn't exercise her treaty rights.
So IT DOESN'T MATTER IF YOU WERE APPLYING FOR RC OR PR BECAUSE SIMPLY MACARTHY WOULD APPLY ON BOTH CASES (RC/PR)
ALL THIS USED TO BE IN PAST.
Let go next point.
Lounes came up
New rules which is his wife exercised her treaty rights. So court see they have rights to carry on normal life.
Must not be stricter than those who provided by the directive.
It means RC then PR
So Macarthy still apply but
NOT ON ALL DUAL NATIONALITY CASES DID YOU GET ME BECAUSE SIMPLY MACARTHY IS NOT LAST WORD FOR DUAL NATIONALITY BUT LOUNES WAS THE LAST WORD.
OK here is a link that we are already know
https://tribunalsdecisions.service.gov. ... 00105-2016
Go for points 8.9.10.
The COURT SAYS THE JUDGMENT IN LOUNES HAD PROVED THE OTHERWISE SO THE COURT DOES NOT CONSIDER REGULATIONS 2 AS LONG AS YOU EXERCISED YOUR TREATY RIGHTS BEFORE NATURALISED.
SO YOU THINK THAT WE WILL TAKE ANOTHER 5 YEARS THEN APPLY FOR PERMANENT RESIDENCE!!!????
NAAAAAA THIS IS ABSOLUTELY WRONG.
THE JUDGMENT WAS TALKING ABOUT GO HEAD NATURALISED AS LONG AS YOU EXERCISED YOUR TREATY RIGHTS WITHOUT FEAR AND PANIC AND YOUR NON EU FAMILY MEMBER WILL BE SAFE.
A LOT OF EU BLOG WEBSITES CONFIRMING MY WORDS.
PLEASE EVERYONE COULD YOU PLEASE SHARE YOUR OPINION???

silverman123
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Re: Do dual EU-UK citizens have rights under EU law?

Post by silverman123 » Wed Apr 25, 2018 9:04 pm

Also don't forget Ron121
They refused his application then they reconsider once again.
They issued him his permanent residence after all this headache.
They were trying to play hard to get.
EUbritish he is extended family member.
They refused his application then reconsider it once again for his RC and wish him all best by the way.
AND WHO KNOWS MAYBE MANY CASES THAT WE DON'T KNOW HAS APPROVED.
ANY WAY IN FEW DAYS FROM NOW I WILL APPLY MY PERMANENT RESIDENCE.
HOPEFULLY EVERYTHING WILL BE OK AND WILL LET YOU KNOW ANY OUTCOME.
WISH ME LUCK

kam999
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Re: Do dual EU-UK citizens have rights under EU law?

Post by kam999 » Wed Apr 25, 2018 11:10 pm

Hi guys,

Ebi & Salu, well done!

We were not aware that things were that messy. Thanks for sharing xxxxxxxxx, since in his tweet he mentioned that HO would amend EEA regulation 2016, it could be infer from it that many queries will be answered in due course (including ours), probably with in next couple of weeks. Keep an eye on eea PRC guidance notes as last update was carried out on 21/04/17, that is the only page we all should look for as anything else has nothing really to do with us. Fingers crossed guys, in the wake of Lounes decision, in my humble opinion everyone will be benefited from it.

Silverman, thank you for being positive as such attitude helps to keep up the courage, especially for those who are down and in a desperate situation.

Keep posting guys, please do share your opinions and anything you come across that could help this thread followers. Let's work like a team.

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

Post by reynaldogr » Thu Apr 26, 2018 12:01 pm

Many thanks silverman123. Hopefully will all end up well. :)
I had left a tweet yesterday to @xxxxxxxxxx about the Derivative Rights and Permanent Residence rights:

Tweet: " would they ever be entitled to apply for PR after 5 years of residence? Not confortable with the "derivative rights" wording. As per HO wedsite, these cases are not entitled to..."

There also 2 or 3 people that have also asked similar question:

Ohter questions with equal reply from @xxxxxxxxxx are as follow:

- "Could a Non EEA spouse apply for his/her after 5 years biw? thank you"
- My EU spouse became a BC so not long ago so dual nationality now. Do you think that i still can apply for PR under Lounes case?

and his respond has been an standard one for all:

" Please contact my Chambers to discuss further as this is a quite separate issue. it's hard to say and may require testing..."

Don't want to sound pessimistic but I think this saga hasn't ended quite yet for us guys.

Br

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

Post by CR001 » Thu Apr 26, 2018 12:34 pm

Can members kindly refrain from posting the Barristers name and social media account name on the forum. He has not given you the authority to do so and it will come up in a Google search link to the forum if anyone searches for him.
Char (CR001 not Casa)
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silverman123
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Re: Do dual EU-UK citizens have rights under EU law?

Post by silverman123 » Thu Apr 26, 2018 12:39 pm

Hi @Reynaldogr
I have seen the posts on twitter.
But what i didn't understand from him why is hard to say!!!!
On other hand people got the permanent residence.
I think it will be very clear once home office will implement within few days /weeks from now.
But let's imagine somthing so what will happen to us then?
Our wife's/husband already exercised their treaty rights in UK BEFORE naturalisation.
Also i have seen an opinion somewhere online saying we have to apply for another 5 years AND STRAIGHT AWAY AFTER WE RECEIVE IT WE APPLY FOR PERMANENT RESIDENCE.
BUT IT DOES NOT MAKE ANY SENSE TO ME.

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

Post by reynaldogr » Thu Apr 26, 2018 12:48 pm

it may be due to the fact that after 10 years of legally living in the UK on any route or a combination of them, you will be entitle to PR by law? but TBH I'm not so familiar with this topic.
If is this is true, the outcome of our PR app could be that our spouses will be issued with another 5 years RC, and afterwards then, they will entitle to apply for PR and BC soon after, as us (the sponsors) would have been BC already so they won't have to wait for 1x year having the PR status before app. for their BC.

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

Post by reynaldogr » Thu Apr 26, 2018 12:50 pm


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

Post by CR001 » Thu Apr 26, 2018 12:56 pm

reynaldogr wrote:
Thu Apr 26, 2018 12:48 pm
it may be due to the fact that after 10 years of legally living in the UK on any route or a combination of them, you will be entitle to PR by law? but TBH I'm not so familiar with this topic.
Not true. It is NOT an entitlement!

For ILR based on 10 years long residence, you must meet the strict criteria of 10 years legal stay. Any time spent as the spouse of an EU citizen, must be valid, i.e. the EU spouse must be a qualified person exercising treaty rights for the WHOLE time that you are claiming time under the EU rules and you have to submit substantial evidence of the EU spouse being qualified.
Char (CR001 not Casa)
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Please DO NOT send me a PM for immigration advice. I reserve the right to ignore the PM and not respond.

silverman123
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Re: Do dual EU-UK citizens have rights under EU law?

Post by silverman123 » Thu Apr 26, 2018 12:57 pm

But in my own opinion is lounes will take the same way of implementation of Surinder singh as in Surinder singh route people can apply for RC/PR.

Lounes will never going to take derevative right of residence like Carers.
Anyway we are very close to the truth. It's just a matter of days.

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

Post by reynaldogr » Thu Apr 26, 2018 1:08 pm

CR001 wrote:
Thu Apr 26, 2018 12:56 pm
reynaldogr wrote:
Thu Apr 26, 2018 12:48 pm
it may be due to the fact that after 10 years of legally living in the UK on any route or a combination of them, you will be entitle to PR by law? but TBH I'm not so familiar with this topic.
Not true. It is NOT an entitlement!

For ILR based on 10 years long residence, you must meet the strict criteria of 10 years legal stay. Any time spent as the spouse of an EU citizen, must be valid, i.e. the EU spouse must be a qualified person exercising treaty rights for the WHOLE time that you are claiming time under the EU rules and you have to submit substantial evidence of the EU spouse being qualified.
what do you mean? non EU spouse is automatically a qualified person as the sponsor (EA national) derives their rights to the EA spouse (Non EA national). Not sure if i misunderstood your statement.
TBH, don't want to be rude, bu every time some of you write something in this forum i ended up more confuse that I'm now, and I'm pretty certain that i will never get a feedback on this questions. Your intervention are welcomed but please be consistence and bear in mind you are talking with a non-law-minded people so be plain and crystal clear on what you are trying to say.
Many thanks

silverman123
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Re: Do dual EU-UK citizens have rights under EU law?

Post by silverman123 » Thu Apr 26, 2018 1:12 pm

@Reynaldogr
NON EU FAMILY MEMBER IS COVERED BY ARTICLE 21 TFEU
AND MUST NOT BE STRICTER THAN THOSE WHO PROVIDED BY THE DIRECTIVE 2004/38EC.
People in lounes position will be treated Like other people who has the righ to stay on directive.
Must not be stricter means
Coast of the application.
Processing time of the application.
The same length of the residence.
The same right of applying for permanent residence.
He will be treated Like EU FAMILY MEMBER.
NOT less than who provided by Directive of any of the rights.
Lets guess something what do you think HO will do if one of us apply for his/her permanent residence??? What is in their favour to refuse our application???
Can we discuss it from this point please?
Can you guys share your opinions please?

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

Post by CR001 » Thu Apr 26, 2018 1:14 pm

reynaldogr wrote:
Thu Apr 26, 2018 1:08 pm
CR001 wrote:
Thu Apr 26, 2018 12:56 pm
reynaldogr wrote:
Thu Apr 26, 2018 12:48 pm
it may be due to the fact that after 10 years of legally living in the UK on any route or a combination of them, you will be entitle to PR by law? but TBH I'm not so familiar with this topic.
Not true. It is NOT an entitlement!

For ILR based on 10 years long residence, you must meet the strict criteria of 10 years legal stay. Any time spent as the spouse of an EU citizen, must be valid, i.e. the EU spouse must be a qualified person exercising treaty rights for the WHOLE time that you are claiming time under the EU rules and you have to submit substantial evidence of the EU spouse being qualified.
what do you mean? non EU spouse is automatically a qualified person as the sponsor (EA national) derives their rights to the EA spouse (Non EA national). Not sure if i misunderstood your statement.
TBH, don't want to be rude, bu every time some of you write something in this forum i ended up more confuse that I'm now, and I'm pretty certain that i will never get a feedback on this questions. Your intervention are welcomed but please be consistence and bear in mind you are talking with a non-law-minded people so be plain and crystal clear on what you are trying to say.
Many thanks
10 year route ILR is an application under the UK Immigration rules and these are the rules that have to be met. To use time spent as a non-EU spouse of an EU citizen under the EU rules towards 10 years ILR, the applicant must prove that their time was 'qualified', i.e. that the EU spouse was exercising treaty rights. Simply 'residing' in the UK is not sufficient.

EU rules and UK Immigration rules are separate and completely different and independent of each other.
Char (CR001 not Casa)
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Please DO NOT send me a PM for immigration advice. I reserve the right to ignore the PM and not respond.

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

Post by reynaldogr » Thu Apr 26, 2018 1:17 pm

not sure my friend but even though what you said may be ok, the doubt is still there. As far as i concern, even the Barrister ruining the Lounes Case doesn't have a direct answer. Or at least that what it appears...

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

Post by salu » Thu Apr 26, 2018 1:33 pm

@silverman123: Your arguments make complete sense to me. I join kam999 in thanking you for sharing your positive interpretation of the ruling, and giving us hope.
Unfortunately, the HO are not exactly famous for being rational or having a consistently sensible interpretation of the law. The fact that the barrister said PR is a separate matter is another concern. If anyone can provide further informed clarification, that would be great.
Still, until we hear back from our current applications, we need to remain calm.
Each route has its requirements and caveats is what I get from CR001 latest contribution.
No need to freak out just yet.
Patience, and good luck to us all!

silverman123
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Re: Do dual EU-UK citizens have rights under EU law?

Post by silverman123 » Thu Apr 26, 2018 1:35 pm

You right doubts is still there.
But do you think lounes waited all these years from 2014 up to now 2018 and money and stress and at the end no right of permanent residence???
Does not sound right at all............
In the judgment says they carry on normal life.
Is this a normal life???

Another example.
People in lounes situations can bring non eu family members in uk under EU routes in uk
Other derivative CANNOT DO THIS.
Guys we are all here to help and support and think with each other and we are all in the same boat.
And honestly many many thanks for all the moderators who is responsible for this FORUM.

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

Post by reynaldogr » Thu Apr 26, 2018 1:54 pm

I agree with Salud. There is nothing else we could do other than simply wait. Anything else will be speculations.
Positive vibes for everyone!

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

Post by reynaldogr » Thu Apr 26, 2018 1:59 pm

CR001 wrote:
Thu Apr 26, 2018 1:14 pm
reynaldogr wrote:
Thu Apr 26, 2018 1:08 pm
CR001 wrote:
Thu Apr 26, 2018 12:56 pm
reynaldogr wrote:
Thu Apr 26, 2018 12:48 pm
it may be due to the fact that after 10 years of legally living in the UK on any route or a combination of them, you will be entitle to PR by law? but TBH I'm not so familiar with this topic.
Not true. It is NOT an entitlement!

For ILR based on 10 years long residence, you must meet the strict criteria of 10 years legal stay. Any time spent as the spouse of an EU citizen, must be valid, i.e. the EU spouse must be a qualified person exercising treaty rights for the WHOLE time that you are claiming time under the EU rules and you have to submit substantial evidence of the EU spouse being qualified.
what do you mean? non EU spouse is automatically a qualified person as the sponsor (EA national) derives their rights to the EA spouse (Non EA national). Not sure if i misunderstood your statement.
TBH, don't want to be rude, bu every time some of you write something in this forum i ended up more confuse that I'm now, and I'm pretty certain that i will never get a feedback on this questions. Your intervention are welcomed but please be consistence and bear in mind you are talking with a non-law-minded people so be plain and crystal clear on what you are trying to say.
Many thanks
10 year route ILR is an application under the UK Immigration rules and these are the rules that have to be met. To use time spent as a non-EU spouse of an EU citizen under the EU rules towards 10 years ILR, the applicant must prove that their time was 'qualified', i.e. that the EU spouse was exercising treaty rights. Simply 'residing' in the UK is not sufficient.

EU rules and UK Immigration rules are separate and completely different and independent of each other.
thanks for the clarification CR001. I only hope that Lounes Case at least will confirm that we (EA spouse) never broke our treaty rights by becoming BC. If this is the truth, our Non EA spose 5 years would have never been broken, then the worse case scenario for them will be having to get another 5 years RC and then, that will be enough for them to apply for PR under the ILR long residence settlement. This is what i meant in my original statement above.
Br

kam999
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Re: Do dual EU-UK citizens have rights under EU law?

Post by kam999 » Thu Apr 26, 2018 3:20 pm

silverman123 wrote:
Thu Apr 26, 2018 1:12 pm
@Reynaldogr
NON EU FAMILY MEMBER IS COVERED BY ARTICLE 21 TFEU
AND MUST NOT BE STRICTER THAN THOSE WHO PROVIDED BY THE DIRECTIVE 2004/38EC.
People in lounes position will be treated Like other people who has the righ to stay on directive.
Must not be stricter means
Coast of the application.
Processing time of the application.
The same length of the residence.
The same right of applying for permanent residence.
He will be treated Like EU FAMILY MEMBER.
NOT less than who provided by Directive of any of the rights.
Lets guess something what do you think HO will do if one of us apply for his/her permanent residence??? What is in their favour to refuse our application???
Can we discuss it from this point please?
Can you guys share your opinions please?
Please correct me if I am wrong, UK amended EEA regulations following McCarthy decision, to my understanding what she was trying to do was simply using her dual nationality to accommodate her Partner to avail that opportunity, it did not work out in her favor and we are now paying for it too. Now, back then HO amended the law not just for residence card application but for every other application following McCarthy (including PRC) that Dual national family members have to go through Uk immigration rules. Based on that I am assuming that they have to implement Lounes decision on a bigger scale and we should be covered just like we were suffering because of McCarthy. And that tweet which says Success, the guy mentioned that UK agreed to amend EEA regulation, I am not a law expert but you just cannot implement a portion of something for a small group, (for like Lounes) and if they do, someone like us will fight again for it and HO has to amend it again and I don't think so they want to go through this again. We are handful of people who made a genuine mistake, but we won't let them treat us like third nationals, most of us are paying taxes and have already made this country our home. The bottom line is (may be its too early to say but) we don't have to go through UK immigration rules or go back and reapply, in worse case another 5 years residence card will be issued or we have to reapply for it on a different application form. And i think it is already a big success because under uk immigration rules you were not just looking at another 6 years but also around £7000 in fees, which kinda worked out for us here just in £65.

Given the stress HO is suffering from Windrush, they cannot take another backlash from EU by treating people like us, after all we are The family members of EEA nationals.

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