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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, zimba88, vinny, Obie, EUsmileWEallsmile, batleykhan, geriatrix, John, ChetanOjha, archigabe, sbrennan

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

Post by silverman123 » Fri Jun 08, 2018 10:34 am

@malik_01
This was for you man.
Quick update from
EUROPEAN COURT OF JUSTICE


Dear Mr......

Thank you for your email which was recently received by the Press and Information Unit at the Court of Justice of the European Union.

I am not clear from your email which documents you are requesting access to, but we do not contain any documents from the UK Home Office. You would need to contact the Home Office in order to access documents held by that department.

The Court of Justice cannot request any update from the Home Office regarding UK action taken following the judgment in case C-165/16 Lounes. The Court of Justice's judgment in that case, as with all judgments following a request by a national court for a preliminary ruling on the interpretation of EU law, is binding on the national courts of the EU. The High Court of Justice of England and Wales referred the questions to the Court of Justice and it is that court which will now provide a final judgment in the substantive case. The Court of Justice has no information regarding the outcome of the substantive case before the High Court.

The European Commission is the institution responsible for monitoring compliance with EU law in the Member States. If you consider that a Member State has failed to fulfil its obligations under EU law, or its law or practices are not in compliance with EU law, you could complain to the Commission. The Commission will examine the complaint and, if it considers that it is well-founded, could bring proceedings against the Member State.

More information about how to complain to the Commission, can be found athttp://ec.europa.eu/atwork/applying-eu-l...and a complaints form, can be found at:https://ec.europa.eu/assets/sg/report-a-... . I would stress however, that the Commission has complete discretion as to whether it decides to take action in the matter.

I would suggest that you seek legal advice in the UK if you have concerns regarding your immigration status.

I trust this information is of use.

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

Post by kam999 » Fri Jun 08, 2018 10:42 am

ariskar wrote:
Fri Jun 08, 2018 6:08 am
... After Lounes ruling, if one claims only their non-UK EEA nationality, it should not account into concealment of material fact, as it becomes irrelevant to treaty law entitlements and bestowing a status to be certified. If the applicant doesn't mention that the "qualifying EEA family member" is also British in the application, I wonder about the competence of the HO consistently "finding out" if that EEA national is also British citizen, especially when a junior caseworker is involved... For sure after Lounes ruling this cannot count anymore as deception or concealment of material facts, as BC becomes non-material fact for the assessment of the application... Thoughts?

To be clear, I am not endorsing or encouraging fraudulent/deceptive or misleading applications by any means.
Provided HO implement the ruling, futher please be advised TCN are classified in different categories and the case in question ruling serves derivative right holders. The question remains, to what extend HO will be binding on the ECJ judgement.

Navaro2
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Re: Do dual EU-UK citizens have rights under EU law?

Post by Navaro2 » Fri Jun 08, 2018 3:58 pm

We sent application for my wife's PR on 28 th of May. However we did mention about Lounes in supporting letter added to application and Lounes judgement copy attached as well.
How long guys did you wait for first letter confirming they received and started processing it.????
We sent by special delivery guaranteed and it was delivered with signing already. I am asking out of curiosity about when someone received the first one from the date you sent.


Regards

Wal

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

Post by kam999 » Fri Jun 08, 2018 6:37 pm

Navaro2 wrote:
Fri Jun 08, 2018 3:58 pm
We sent application for my wife's PR on 28 th of May. However we did mention about Lounes in supporting letter added to application and Lounes judgement copy attached as well.
How long guys did you wait for first letter confirming they received and started processing it.????
We sent by special delivery guaranteed and it was delivered with signing already. I am asking out of curiosity about when someone received the first one from the date you sent.


Regards

Wal
After 2 weeks (payment, biometric all done) I received an email saying: Your application has been received and is being considered. That is all I had and now waiting for the decision.

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

Post by silverman123 » Fri Jun 08, 2018 9:46 pm

I sent my application almost 3 weeks ago my solicitor haven't heard anything yet not even the biometric.

Malik_01
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Re: Do dual EU-UK citizens have rights under EU law?

Post by Malik_01 » Sat Jun 09, 2018 2:33 pm

silverman123 wrote:
Fri Jun 08, 2018 10:34 am
@malik_01
This was for you man.
Quick update from
EUROPEAN COURT OF JUSTICE


Dear Mr......

Thank you for your email which was recently received by the Press and Information Unit at the Court of Justice of the European Union.

I am not clear from your email which documents you are requesting access to, but we do not contain any documents from the UK Home Office. You would need to contact the Home Office in order to access documents held by that department.

The Court of Justice cannot request any update from the Home Office regarding UK action taken following the judgment in case C-165/16 Lounes. The Court of Justice's judgment in that case, as with all judgments following a request by a national court for a preliminary ruling on the interpretation of EU law, is binding on the national courts of the EU. The High Court of Justice of England and Wales referred the questions to the Court of Justice and it is that court which will now provide a final judgment in the substantive case. The Court of Justice has no information regarding the outcome of the substantive case before the High Court.

The European Commission is the institution responsible for monitoring compliance with EU law in the Member States. If you consider that a Member State has failed to fulfil its obligations under EU law, or its law or practices are not in compliance with EU law, you could complain to the Commission. The Commission will examine the complaint and, if it considers that it is well-founded, could bring proceedings against the Member State.

More information about how to complain to the Commission, can be found athttp://ec.europa.eu/atwork/applying-eu-l...and a complaints form, can be found at:https://ec.europa.eu/assets/sg/report-a-... . I would stress however, that the Commission has complete discretion as to whether it decides to take action in the matter.

I would suggest that you seek legal advice in the UK if you have concerns regarding your immigration status.

I trust this information is of use.
How is this related to me? @silverman123

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

Post by silverman123 » Sat Jun 09, 2018 3:27 pm

@malik01
Sorry i though you asked the European Court of justice. i got confused that's all.
:?

Navaro2
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Re: Do dual EU-UK citizens have rights under EU law?

Post by Navaro2 » Sat Jun 09, 2018 3:52 pm

I see. Well this morning my wife found email confirmation from Home office on her mail box that they received it and then They also sent her the letter to do biometric enrolment this morning.
However it took 7 days.

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

Post by naturallyoccurring » Mon Jun 11, 2018 9:47 am

Just to let everyone know, I'm a non-EEA partner of a dual UK/EEA citizen and I had my EEA(PR) application approved last week and just received my Permanent Residence card in the mail. I submitted the application late-February 2018 and submitted biometrics in mid-March 2018.

The following is an edited extract from the cover letter I attached to my application regrading the Lounes decision, though your mileage may vary and this should not to be relied upon or considered legal advice . Please bear in mind this is only an extract, and that on top of providing all the evidence required under the Home Office EEA(PR) guidelines, I also made a number of annotations on the application itself, setting out the basis of my rights in accordance with Lounes. For obvious reasons I am not including any of that information, or the full unedited letter. You should seek independent legal advice for your own application(s) where necessary.
I am writing this cover letter as the current EEA(PR) form does not reflect the recent Toufik Lounes v Secretary of State for the Home Department decision handed down by the Court of Justice of the European Union (hereafter ‘CJEU’) on 14 November 2017.

I married my partner (who was and still is an EEA citizen) on 20## following which I resided and worked in the UK via their exercise of treaty rights. I applied for a Residence Card under the EEA2 form which was issued on 20##. In 20## my partner naturalised as a British citizen while also retaining their EEA citizenship. The CJEU recently ruled on the question of dual-EU/UK citizens and held that a non-EU national is able to benefit from a right of residence in the member state where his EU citizen family member resided before acquiring its nationality in addition to her original nationality. The conditions governing the grant of the said right of residence must not be stricter than those set out in the Citizens’ Directive (2004/38/EC). Accordingly I am applying for permanent residence on the basis of the exercise of treaty rights in relation to my residence in the UK since 20##.

As the Home Office have not updated their EEA(PR) application forms to account for the CJEU’s recent Lounes decision, I have prepared this cover letter and made notations on the application in order to emphasise my right to apply on that basis. The CJEU’s Lounes decision was well-publicised and I have included the CJEU official Press Release as well as an article from the newspaper summarising the decision.


Obie, or other mods, please let me know if this should be edited or removed - I'm just putting this up as it worked for me, though as I said there is no guarantee it will work for anyone else.

Best of luck to you all - I hope my situation provides you with some comfort as I know how awful and stressful it is having such uncertainty hanging over you. I spent more time than I care to admit lurking and hitting refresh on this forum thread.

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

Post by kam999 » Mon Jun 11, 2018 11:20 am

naturallyoccurring wrote:
Mon Jun 11, 2018 9:47 am
Just to let everyone know, I'm a non-EEA partner of a dual UK/EEA citizen and I had my EEA(PR) application approved last week and just received my Permanent Residence card in the mail. I submitted the application late-February 2018 and submitted biometrics in mid-March 2018.

The following is an edited extract from the cover letter I attached to my application regrading the Lounes decision, though your mileage may vary and this should not to be relied upon or considered legal advice . Please bear in mind this is only an extract, and that on top of providing all the evidence required under the Home Office EEA(PR) guidelines, I also made a number of annotations on the application itself, setting out the basis of my rights in accordance with Lounes. For obvious reasons I am not including any of that information, or the full unedited letter. You should seek independent legal advice for your own application(s) where necessary.
I am writing this cover letter as the current EEA(PR) form does not reflect the recent Toufik Lounes v Secretary of State for the Home Department decision handed down by the Court of Justice of the European Union (hereafter ‘CJEU’) on 14 November 2017.

I married my partner (who was and still is an EEA citizen) on 20## following which I resided and worked in the UK via their exercise of treaty rights. I applied for a Residence Card under the EEA2 form which was issued on 20##. In 20## my partner naturalised as a British citizen while also retaining their EEA citizenship. The CJEU recently ruled on the question of dual-EU/UK citizens and held that a non-EU national is able to benefit from a right of residence in the member state where his EU citizen family member resided before acquiring its nationality in addition to her original nationality. The conditions governing the grant of the said right of residence must not be stricter than those set out in the Citizens’ Directive (2004/38/EC). Accordingly I am applying for permanent residence on the basis of the exercise of treaty rights in relation to my residence in the UK since 20##.

As the Home Office have not updated their EEA(PR) application forms to account for the CJEU’s recent Lounes decision, I have prepared this cover letter and made notations on the application in order to emphasise my right to apply on that basis. The CJEU’s Lounes decision was well-publicised and I have included the CJEU official Press Release as well as an article from the newspaper summarising the decision.


Obie, or other mods, please let me know if this should be edited or removed - I'm just putting this up as it worked for me, though as I said there is no guarantee it will work for anyone else.

Best of luck to you all - I hope my situation provides you with some comfort as I know how awful and stressful it is having such uncertainty hanging over you. I spent more time than I care to admit lurking and hitting refresh on this forum thread.
Naturallyoccuring,
This is an awesome news, thanks a lot for sharing such thing. However, i didn't submit lounes decision but i got the idea what to do if things don't work out in my favour. Thanks again mate, congratulations and well done.

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

Post by reynaldogr » Mon Jun 11, 2018 1:08 pm

Hi Naturallyoccuring,

first of all, many thanks for sharing your story with us. This is actually excellent news.
May i ask,when did your partner acquire his/her BC? Just wanted to know if he falls or not under the Transitional Arrangements.
Also, did the HO advise if you could apply for your BC right away without having to wait 1 year having the PR status?

Many thanks again

Br

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

Post by silverman123 » Tue Jun 12, 2018 11:38 am

@ Naturallyoccuring
Thanks a lot for sharing your story with us.
When did you get married?
And when did you apply for you first residence card?
And when your wife naturalised (became a British citizen)?
Many thanks in advance

Unluckyeea2
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Re: Do dual EU-UK citizens have rights under EU law?

Post by Unluckyeea2 » Wed Jun 13, 2018 8:39 am

Hi everyone !
Thank you for updates .
@ Naturallyoccuring please coul you update about roughly dates only months and years of you married to EEA national ,applied for Family permit or Residence card and your partner natralised as B.C. We are confused that they approved you PR under TA for dual nationals or Lounes judgement ? Thank You .

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

Post by Branok » Thu Jun 14, 2018 8:16 pm

https://www.whatdotheyknow.com/request/ ... ng-1173816

Some interesting insights in the answer

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

Post by eubritish » Fri Jun 15, 2018 1:37 am

Well there is nothing new really. The same nonsense they have been saying for months.

It has been 7 months since the decision and still their 'consideration' goes on.

In the meanwhile, our lives are on hold.

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

Post by salu » Fri Jun 15, 2018 10:37 am

Hello,
Thanks for the update on the FoI, Branok, however,
I have to agree with eubritish, or at least I am not seeing any new insight from their reply.

I have a minor, probably unrelevant update: I requested my passport back, and received it exactly 10 days after. For my sanity, I am telling myself that this is a good sign. If they were to think I dont have the right to be here, they would not have sent it back.
But I guess we already know that, since last November...

Despite that, as eubritish says, our lives are on hold.
I have my passport back with an expired vignette. Does anyone know what happens if I travel with this and the CoA letter, would I be allowed back in? Because of my nationality, I don't need a visa to visit the country, but of course I need one to stay here for more than 6 months and work. Does anyone know?

I'll keep you posted if I hear anything else.

One last thing:
@naturallyoccuring: Thank you for sharing your story. Can you please reply to the questions above by several other contributors? This would be very helpful to everyone here.

Thanks!

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

Post by silverman123 » Fri Jun 15, 2018 11:04 am

@Branok
Many thanks for this link and hopefully they will implement lounes soon or at least release and policy to caseworker to handle our case which on hold until they implement lounes.
However eubritish is right by saying our lives on holding-hands because this is our future.
@salu if your residence card expires you rather stay in uk and don't take the risk as we have enough troubles already 😆😎wait until you receive your permanent residence.
This is my opinion to you.
Still take other opinions.
Also i have questions
I have my wife on maternity leave at the moment started in January but 2018.
And she is receiving maternity leave pay for 9 months only then she will go back to work
Is that can effect on my application decision somehow?
Or should be fine
anyone knows??

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

Post by kam999 » Fri Jun 15, 2018 3:26 pm

Hi All,

Branok - Thank you for sharing the HO reply.
I don't wanna be pessimist, however, it really bugs me that what do they mean by saying that they will let us know at appropriate time? 9 months left in divorce/Brexit and a year ago Lounes decision has been taken... Does anyone know on previous Case Law affecting EEA regulations, how long it took the judgement to be implemented?

Salu - You just requested your passport back and did not withdraw your application right? reason I am asking my spouse has lost her EU id and she needs her passport back for travelling, can i request just her passport to be returned, there won't be any impact on my application by doing so?

Silverman - as long as you added her recent P60 and (or ideally) her recent payslip with your application, I think it should not be an issue as she is going back to work after 9 months. But please rely on a more experienced/law educated users reply as I an searching for answers myself.

Unluckyeea2
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Re: Do dual EU-UK citizens have rights under EU law?

Post by Unluckyeea2 » Fri Jun 15, 2018 7:35 pm

Hi everyone ,
Thanks for updates , main worrying thing is Brexit on the corner and Lounes Judgement is still not implemented . Sometime I think they are just waiting for Brexit and there is nothing mentioned about Dual nationals rights in Brexit Withrwal Agreement so what will happen to non EU family members ? Lounes Barrister mentioned in his tweeter account that EEA Regulation will be ammended through Parliament but still no news of it since April . If all of us affected Dual nationals go to own MPs and there could be hundred Mps rasing issue and then Parliament would ask Ho to implement Lounes Judgement of Ecj and High Court .We came to know that people who were denied there rights were given rights through pressusre of media , pettion and intervention from MPs , lawyers and courts . Dear members please keep posting updates .
@ Salu your case is oldest and we all wating good news from you and about your travelling plan please wait advice from senior Moderators , gurus they know more or consult EEA Law experts .
@Naturallyoccuring please if you arereading the post we are waiting some details from your experince pleae share it . Thanks to all .

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

Post by Branok » Fri Jun 15, 2018 10:10 pm

I thought it was interesting to see why their reasoning for why they haven't released the caseworker notes yet.

I'm an optimist and think you will all receive your PR cards long before they release the notes.

I think that what they are really discussing is how to handle the fact that over several years they have denied people their rights. I bet there are a lot of people who has lost their jobs, been kicked out of the country, been forced into expensive UK routes instead (if they qualified) or had their families split who are now just waiting for justice. How will they formulate the policy in a way so they don't have to take responsibility for it or make the government look bad? I think they care more about that then trying to stop people form getting PR.

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