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

Apologies I was using the wrong word

My fiance has a spanish passport and british residency. She will be able to apply for her passport/citizenship next year. She still has not done so.

Does this case law still apply to me?

Safest for her to naturalise after you have acquired PR. Then, you won't have to rely on the Judgment.

We are planning on getting married in August. Then I will apply for a spouse visa under european law using her spanish passport/citizenship. Once I have the spouse visa are you saying it is better we wait 5 years until I have permanent residency before she naturalises? Once I am on the spouse visa wont it be valid for 5 years? Or are yous saying that, the moment my partner gets her british citizenship also, even after I have been granted a spouse visa, they will cancel my spouse visa and I will have to apply for a fresh visa using british law?

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?

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?

Yes, depending on the post-Brexit terms.

Thanks, that was the one caveat I forgot to include.

The only reason why My wife (to be) got her British residency was because of Brexit to avoid any potential issues.

Assuming no changes in immigration laws.

If I get my EEA residence card is there a real risk in my EEA residence becoming void if she applies for citizenship straight after I receive the EEA residence? This is the first time I have heard that a decision can be retrospective.

confusedandsad wrote:Thanks, that was the one caveat I forgot to include.

The only reason why My wife (to be) got her British residency was because of Brexit to avoid any potential issues.

Assuming no changes in immigration laws.

If I get my EEA residence card is there a real risk in my EEA residence becoming void if she applies for citizenship straight after I receive the EEA residence? This is the first time I have heard that a decision can be retrospective.

YES. As CR001 has already correctly advised.

I see that earlier in this thread you state: "She has a spanish passport and she has just been given her british citizenship." Which is correct

She has her british residence card and can apply from january 18 for her citizenship

I was confusing the two

confusedandsad wrote:We are planning on getting married in August. Then I will apply for a spouse visa under european law using her spanish passport/citizenship. Once I have the spouse visa are you saying it is better we wait 5 years until I have permanent residency before she naturalises? Once I am on the spouse visa wont it be valid for 5 years? Or are yous saying that, the moment my partner gets her british citizenship also, even after I have been granted a spouse visa, they will cancel my spouse visa and I will have to apply for a fresh visa using british law?

Good evening,

Could any of the Administrators advise on the above question asked by confusedandsad?

Also, do you have any experience if an non-European citizen is applying for family permit to join EEA spouse and is granted and after some months EEA citizen is applying for British Citizenship that BC application can be refused? Are these two related?

Many thanks.

The EEA citizen's application for British citizenship will not be refused. However, according to the current legislation at the very moment of pledging allegiance to Her Majesty the new British citizen's spouse will lose his/her status as a family member of an EEA citizen.

Does that mean they will be staying in the country illegally once the partner getrs their british passport or is there some timeframe they are given to put in an application to receive the spouse visa under british law?

confusedandsad wrote:Does that mean they will be staying in the country illegally once the partner getrs their british passport or is there some timeframe they are given to put in an application to receive the spouse visa under british law?

A spouse visa is unlikely to be granted unless the application is submitted from outside of the UK.

vinny wrote:Safest for her to naturalise after you have acquired PR. Then, you won't have to rely on the Judgment.

Vinny has already given good advice is his previous post.

Casa wrote:

confusedandsad wrote:Does that mean they will be staying in the country illegally once the partner getrs their british passport or is there some timeframe they are given to put in an application to receive the spouse visa under british law?

A spouse visa is unlikely to be granted unless the application is submitted from outside of the UK.

The correct timing would be to receive the 'visa' before the partner's naturalisation. The partner who is not a 'qualified person' would then satisfy the immigration requirements for leave to remain, E-LTRP.2.1 by not being in breach of immigration laws, or even 'in breach of the immigration laws' (as present in accordance with the EEA Regulations), not a visitor, and not in possession of leave granted for 6 months or less.

Richard W wrote:

Casa wrote:

confusedandsad wrote:Does that mean they will be staying in the country illegally once the partner getrs their british passport or is there some timeframe they are given to put in an application to receive the spouse visa under british law?

A spouse visa is unlikely to be granted unless the application is submitted from outside of the UK.

The correct timing would be to receive the 'visa' before the partner's naturalisation. The partner who is not a 'qualified person' would then satisfy the immigration requirements for leave to remain, E-LTRP.2.1 by not being in breach of immigration laws, or even 'in breach of the immigration laws' (as present in accordance with the EEA Regulations), not a visitor, and not in possession of leave granted for 6 months or less.

Are you referring to a FLR(M) visa or PR under EEA Regulations The point in my post is that switching from the EEA route into FLR(M) under the Immigration Rules (as reported by members on the forum) is generally refused.
One fairly recent example:
immigration-for-family-members/flr-m-re ... ?hilit=Flr

Casa wrote:Are you referring to a FLR(M) visa or PR under EEA Regulations The point in my post is that switching from the EEA route into FLR(M) under the Immigration Rules (as reported by members on the forum) is generally refused.
One fairly recent example:
immigration-for-family-members/flr-m-re ... ?hilit=Flr

The officer does appear to have confused having leave to remain with not being in breach of immigration law. However, it is unclear that the wife in this case is not in breach of the immigrations laws. Her not being in breach depends on her not being in need of leave to remain, and it will be argued that she needed leave to remain once her husband became British. (The Lounes ruling, once it's given, may overturn this.) I made the point that leave to remain as a partner has to be applied for (and obtained) before the other partner becomes British.

My hazy recollection is that leave to remain was required at one time, but that this was relaxed to allow simply not requiring it - 'not in breach of immigration laws'.

DEAR SIRS,
I have question that how long home office will take time to issue the PR card after Court decision ?

Rehan84uk wrote:DEAR SIRS,
I have question that how long home office will take time to issue the PR card after Court decision ?

No one can answer that....anything would be simply guesswork.

Khaled31000 wrote: 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

But at the airport you were allowed to enter the UK and a week later you received a letter from Home Office sent to your address in the UK about the cancellation of your EEA Family Member Resident Card. Do I understand you well?

I wonder what would happen if the spouse of an EEA citizen who has recently become British tried to enter the UK using his/her EEA Family Member Residence Card? Would the person be detained at the airport? Or they would let the family member in and later they would send him a cancellation later, as seems to be the case of Khaled?

Hi All, I would like to receive some advice if anyone is so kind to let me know about my situation.

I'm a EEA citizen, and I just received a letter from the HO confirming that my citizenship application was accepted.
My wife is living in the UK with a EEA spouse VISA, and I Know that if I go to the ceremony there will be consequences for all the reasons explained above.
Is it worth booking the ceremony with he Council as late as possible (beginning of October) and hope that there will be a judgement for the Lounes case before that date?
In that case, would the Lounes Case's judgement take effect immediately?

Thanks

vinny wrote:

pochaco wrote:Case could mean EU citizens who become British citizens and keep dual nationality may be unable to bring family members to UK.

Toufik Lounes case heard. The preliminary opinion of the advocate general of the European court is due on 30 May, with the Grand Chamber’s judgment to be published in the summer.

https://www.theguardian.com/politics/20 ... are_btn_tw

Vinny,

Any update as per the Lounes case? I have been following it... Quite interesting

The European Court of Justice, like the UK Parliament, is taking a summer recess.

Decision of the Court of Justice of 9 March 2016 on official holidays and judicial vacations wrote:For the period from 1 November 2016 to 31 October 2017, the dates of the judicial vacations within the meaning of Article 24(2) and (6) of the Rules of Procedure are as follows:
...
Summer 2017: from Friday 21 July 2017 to Sunday 3 September 2017 inclusive.

So, I would not expect a judgment before 4th September. Coincidentally, the UK Parliament also resumes on 5th September.

It may be worth following @EUCourtPress on Twitter for updates on ECJ cases.

As an aside, I was somewhat startled that the ECJ was breaking new ground by using an AI Bot to give legal opinions on cases before it, as in the Loundes case. I was relieved to later learn that Advocate General (AG, not AI) Yves Bot is a respected French prosecutor.

There's a lot of confusion around about the conclusion in the opinion. My understanding of the opinion of the Advocate-General Bot is that he is recommending at least the following rulings:

1) Family members resident in the host state retain their status as family members of an EEA national if their sponsor acquires the host state's nationality without losing any nationality.

2) Subsequently acquired family members who are not blood relations do not acquire the status of family members of an EEA national.

Have I got these points right? This seems to work rather like the McCarthy transition arrangements, though without the need for residence documents.

I'm not sure that he has addressed what happens if the old nationality is lost as a result of the acquisition, or what happens if an extended family member has a child, or if an ancestor becomes dependent.

Toufik Lounes will be an unlikely triumph of Boris Johnson's "have cake and eat it" expectation, just not in the way he intended. Mrs. Lounes wants the stability and surety of British citizenship, while at the same time also wanting rights that other EU citizens in the UK have, but which British citizens do not. Have your cake and eat it.

I would be interested in seeing the direction that the ECJ will take on it. The usual direction of course with regards to interpreting EU freedom of movement law is in the loosest and broadest manner possible. I fully expect the final judgment to be on the lines of a dual British/EU citizen being solely an EEA citizen for the purpose of freedom of movement of all non-EEA relations, ideally for life.

Against that is the suggestion (in the unlikely locale of a German constitutional law blog) that perhaps even constitutional and supreme courts are not immune to the increasingly populist tones of political discourse and the observation of a former judge of the ECJ that the EU's citizen rights proposal (and by extension additional rights for dual citizens) risks creating a super-caste with enhanced privileges. It may be that the law is for turning.

As regards interpreting the law, I would not bother so much with the text of either EU law or much of the ECJ case law. The expansive teleological/purposive interpretation approach of the ECJ (which is at variance with the UK's textual approach) means that the interpretation is so overtly broad as to render the law practically meaningless.

Think about it. Directive 2004/38/EC specifically states that it applies to citizens who move across member-states. The Advocate General has, in his opinion,stated as much. But then, Singh and Eind, both judicial constructs which do not exist in any law, applied it by analogy, in spite of the law not applying directly, based on the intent of the legislature. That intent is read in based on broad principles that are not specific in any detail.The intents of EU law are mere phantasms, conjured up at will. The ECJ judges are like Humpty-Dumpty in Through the Looking Glass.

I used to think that the "right to privacy" found in the penumbra of the (US) Constitution (in SCOTUS's judgment of Roe v Wade) was a bad way to interpret the law. The ECJ's approach does not so much find things in the penumbra of the Treaties, it finds it in the next solar system.

secret.simon wrote: ↑

Sun Aug 06, 2017 1:40 am

The European Court of Justice, like the UK Parliament, is taking a summer recess.

Decision of the Court of Justice of 9 March 2016 on official holidays and judicial vacations wrote:For the period from 1 November 2016 to 31 October 2017, the dates of the judicial vacations within the meaning of Article 24(2) and (6) of the Rules of Procedure are as follows:
...
Summer 2017: from Friday 21 July 2017 to Sunday 3 September 2017 inclusive.

So, I would not expect a judgment before 4th September. Coincidentally, the UK Parliament also resumes on 5th September.

The ECJ timetable is published until 22 September 2017 and the Lounes case is not listed yet:

https://curia.europa.eu/jcms/jcms/Jo1_6581/en/