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I have Dual Citizenship -Wife non EU . 5 years Visa finishes ...

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

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chaoscontrol
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Re: I have Dual Citizenship -Wife non EU . 5 years Visa finishes ...

Post by chaoscontrol » Thu Jan 11, 2018 12:25 am

mgb wrote:
Wed Jan 10, 2018 1:13 pm
December 2012 to december 2017 give 5 years.
Who should hinder her to apply for permanent residence?
my Dual citizenship . my questions are not about timings but about ECJ decision, which gave right to Dual citizens non EU Spouses to use EU route for applying for Permanent residence documentation.
But as European Court of Justice`s decision is still not implemented in to the UK law , 2 months after the Toufik Lounes case been decided - there is a risk of my Wife`s application will not be successfull as:
`In 2012 the UK implemented into its domestic legislation the ECJ decision in McCarthy C-434/09. This was basically that EU citizens who become British citizens cannot rely anymore on EU law, including the right to bring family members to the UK. That is how the law stands currently in the Immigration (European Economic Area) Regulations 2016.

However, the ECJ decision on Lounes C-165/16 from November 2017 changes that. Now family members of an EU citizen who becomes British keep their rights under EU law.`

So, any update on WHEN the ECJ decision will be implemented in to the UK law ?

eeaprneu2
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Re: I have Dual Citizenship -Wife non EU . 5 years Visa finishes ...

Post by eeaprneu2 » Thu Jan 11, 2018 12:58 am

You don't need to wait for the UK law to be updated, EU law is superior to UK law and if they refuse her PR application because of your dual nationality, it will be unlawful and you can appeal against it.

mgb
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Re: I have Dual Citizenship -Wife non EU . 5 years Visa finishes ...

Post by mgb » Thu Jan 11, 2018 12:37 pm

chaoscontrol wrote:
Thu Jan 11, 2018 12:25 am
mgb wrote:
Wed Jan 10, 2018 1:13 pm
December 2012 to december 2017 give 5 years.
Who should hinder her to apply for permanent residence?
my Dual citizenship . my questions are not about timings but about ECJ decision, which gave right to Dual citizens non EU Spouses to use EU route for applying for Permanent residence documentation.
I think it makes no difference if she apply now or in 3 or 4 month.
If a caseworker want to refuse the application he simply will do it.
Enclose a printout of the Lounes judgement and refer to it in the cover letter.

chaoscontrol
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Re: I have Dual Citizenship -Wife non EU . 5 years Visa finishes ...

Post by chaoscontrol » Thu Jan 11, 2018 10:51 pm

mgb wrote:
Thu Jan 11, 2018 12:37 pm
chaoscontrol wrote:
Thu Jan 11, 2018 12:25 am
mgb wrote:
Wed Jan 10, 2018 1:13 pm
December 2012 to december 2017 give 5 years.
Who should hinder her to apply for permanent residence?
my Dual citizenship . my questions are not about timings but about ECJ decision, which gave right to Dual citizens non EU Spouses to use EU route for applying for Permanent residence documentation.
I think it makes no difference if she apply now or in 3 or 4 month.
If a caseworker want to refuse the application he simply will do it.
Enclose a printout of the Lounes judgement and refer to it in the cover letter.
Thanks for Advice , any advice are useful now , She wanted to wait and apply as late as possible in a hope that `Lounes case will be implemented in the UK law so the Home office worker will be aware about all that changes and not just reject my wifes PR application simply because she/he will open the wrong page in the Law book and see the old/current interpretation of 2012 `restrictions policy` for Dual citizens .
Also to avoid all the hassle with Appealing to the High Court . Which going to take extra/a lot of time (and we have no time for that cause she will lose her work if her App will be rejected )...
but thanks for advice anyway ,
any Links to `printout of the Lounes judgement` ? sorry I know there is lots in internet if I google it but I don`t know which of them is the Right one to include for the Home Office ?
Thanks in advance.

vinny
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Re: I have Dual Citizenship -Wife non EU . 5 years Visa finishes ...

Post by vinny » Thu Jan 11, 2018 11:41 pm

Obie wrote:
Tue Nov 14, 2017 2:16 pm
FULL JUDGEMENT PROMULGATED
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.

chaoscontrol
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Re: I have Dual Citizenship -Wife non EU . 5 years Visa finishes ...

Post by chaoscontrol » Fri Jan 12, 2018 12:06 am

vinny wrote:
Thu Jan 11, 2018 11:41 pm
Obie wrote:
Tue Nov 14, 2017 2:16 pm
FULL JUDGEMENT PROMULGATED
wow , thanks for that Vinny ! already seen this Obie`s post somewhere in here but probably still was unsure if I can include it with my wifes PR application to Home Office . At least this will be sorted now ..

chaoscontrol
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Re: I have Dual Citizenship -Wife non EU . 5 years Visa finishes ...

Post by chaoscontrol » Fri Jan 12, 2018 12:04 pm

chaoscontrol wrote:
Thu Jan 11, 2018 12:25 am
mgb wrote:
Wed Jan 10, 2018 1:13 pm
December 2012 to december 2017 give 5 years.
Who should hinder her to apply for permanent residence?
European Court of Justice`s decision is still not implemented in to the UK law , it is 2 months now after the Toufik Lounes case been decided , so there is a big risk of my Wife`s application being not successfull just because of law is still not corrected ! :( as:
EU citizens who become British citizens cannot rely anymore on EU law, including the right to bring family members to the UK. That is how the law stands currently in the Immigration (European Economic Area) Regulations 2016.

However, the ECJ decision on Lounes C-165/16 from November 2017 changes that. Now family members of an EU citizen who becomes British keep their rights under EU law.`

So, any update on WHEN the ECJ decision will be implemented in to the UK law ?
just a note :
It will require a relatively minor amendment of the Immigration (European Economic Area) 2016 Regulations to include dual national citizens, in order to ensure that family members of UK-EU dual nationals are treated the same as family members of EU nationals without British citizenship.

So , the question stays the same : any update on WHEN the ECJ decision will be implemented in to the UK law ?

mgb
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Re: I have Dual Citizenship -Wife non EU . 5 years Visa finishes ...

Post by mgb » Fri Jan 12, 2018 2:23 pm

Brexit is on the horizon.
Why should someone bother to change anything before.

chaoscontrol
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Re: I have Dual Citizenship -Wife non EU . 5 years Visa finishes ...

Post by chaoscontrol » Fri Jan 12, 2018 11:00 pm

mgb wrote:
Fri Jan 12, 2018 2:23 pm
Brexit is on the horizon.
Why should someone bother to change anything before.
This is right .. :cry: only hope is that if we include print out of the `Lounes C-165/16` case , the Home Office worker will bother/care to read it and use his/her brain and not just reject an Application because 2016 regulations still not been changed (months after ECJ decision)...
if they will be not familiar with ECJ decision in `Lounes`and not give PR to my wife then we will need to appeal ,
which going to take crazy amount of time ( maybe a year or longer..) to get to the Court Listing , by this time it will be 2019 and UK will be exiting EU so the Home Office will reject my wifes Application on different basis (we are not in EU anymore so you can`t use EU route anymore to get PR) :shock: :(

mgb
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Re: I have Dual Citizenship -Wife non EU . 5 years Visa finishes ...

Post by mgb » Sun Jan 14, 2018 12:27 am

I wrote it already that I think it makes no difference if she apply now or in 3 or 4 month.
There are tons of more important problems than to change the 2016 regulations.
If she has to appeal a refusal the date of the application is important and not the status at the time of the appeal decision.

chaoscontrol
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Re: I have Dual Citizenship -Wife non EU . 5 years Visa finishes ...

Post by chaoscontrol » Sun Jan 14, 2018 3:22 pm

mgb wrote:
Sun Jan 14, 2018 12:27 am
I wrote it already that I think it makes no difference if she apply now or in 3 or 4 month.
There are tons of more important problems than to change the 2016 regulations.
If she has to appeal a refusal the date of the application is important and not the status at the time of the appeal decision.
Thank you for your answer and time , could you please explain why the date of the application is important in case she will have to appeal ? what you mean with that ? (sorry for stupid questions , I am not law educated , but every small thing is important). thanks.

mgb
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Re: I have Dual Citizenship -Wife non EU . 5 years Visa finishes ...

Post by mgb » Tue Jan 16, 2018 6:30 pm

The valid law at the day of the application is that what is counting.

chaoscontrol
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Re: I have Dual Citizenship -Wife non EU . 5 years Visa finishes ...

Post by chaoscontrol » Sat Jan 20, 2018 11:14 pm

... update ...It looks like there is no any `update` of the Home Office guidance, also can`t find any info about the EEA 2016 regulations change regarding ECJ decision in Lounes C-165/16 from November 2017 ... :( this is really sad ..
As `mgb` said answering to me : `nobody will bother cause brexit is on horizon` :cry:

But I still must ask :
Maybe anybody is aware here , how this ECJ decision should be normally implemented into UK law (or in this case into HO Guidance) ? Do there should be another UK High Court listing to confirm when `Lounes C-165/16` decision will take effect in the UK ? :idea:
Or maybe HO has to follow EU Court of Justice decision and act accordingly ?

Sure I will include a cover Letter with my Wifes PR application as people here advised me (Thank you all for that and for Your time too , you all been really helpful !) , but I am still hoping that there will be some kind of amendments of 2016 regulations and the Home Office worker will not just blindly follow the `book` , apply 2016 regulations and refuse her Application (on the grounds that I am Dual Citizen) ..

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Re: I have Dual Citizenship -Wife non EU . 5 years Visa finishes ...

Post by Richard W » Sun Jan 21, 2018 10:15 am

chaoscontrol wrote:
Fri Jan 12, 2018 12:04 pm
It will require a relatively minor amendment of the Immigration (European Economic Area) 2016 Regulations to include dual national citizens, in order to ensure that family members of UK-EU dual nationals are treated the same as family members of EU nationals without British citizenship.
The Home Office may struggle for as narrow and petty a concession as possible. For example, they will probably try to exclude family members whose sponsoring dual national never required the personal exercise of treaty rights to live in the UK. An extreme example would be a Frenchman who has never been outside the UK. They might come up with the simple requirement that the sponsor have held a UK residence certificate or DCPR. I also expect that they will require that the sponsor continue to hold a non-UK EEA nationality - that would exclude any who lost their non-UK EEA nationality by becoming British.

I wouldn't rule out spiteful exclusion of former British-Irish dual nationals who renounced and then prematurely resumed British nationality, though that's legally very shaky - an Irishman loses his special non-voting rights by entering the UK from outside the Common Travel Area. Additionally, since late 2014 an Irishman now acquires his special residence rights solely because he is an EEA national or family member of one, except in the rare cases where he has previously been excluded or removed from the UK.

You ought to have given your source - which I suspect is http://www.airecentre.org/news.php/291/ ... department.
A single cross of St. George would be better.

chaoscontrol
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Re: I have Dual Citizenship -Wife non EU . 5 years Visa finishes ...

Post by chaoscontrol » Wed Jan 24, 2018 12:21 am

chaoscontrol wrote:
Sat Jan 20, 2018 11:14 pm
... update ...It looks like there is no any `update` of the Home Office guidance, also can`t find any info about the EEA 2016 regulations change regarding ECJ decision in Lounes C-165/16 from November 2017 ... :( this is really sad ..
As `mgb` said answering to me : `nobody will bother cause brexit is on horizon` :cry:

But I still must ask :
Maybe anybody is aware here , how this ECJ decision should be normally implemented into UK law (or in this case into HO Guidance) ? Do there should be another UK High Court listing to confirm when `Lounes C-165/16` decision will take effect in the UK ? :idea:
Or maybe HO has to follow EU Court of Justice decision and act accordingly ?

Sure I will include a cover Letter with my Wifes PR application as people here advised me (Thank you all for that and for Your time too , you all been really helpful !) , but I am still hoping that there will be some kind of amendments of 2016 regulations and the Home Office worker will not just blindly follow the `book` , apply 2016 regulations and refuse her Application (on the grounds that I am Dual Citizen) ..
been browsing through gov.uk website and found this :
https://www.gov.uk/derivative-right-residence
If the worst scenario (if even after appeal based on ECJ decision in `Lounes C-165/16`the Home Office will refuse to give Permanent residence card/Derivative residence to my wife - which I can`t imagine as its against the Law :cry: ) happens , then do she will be able to apply for `that one` ? based on the fact that we have 1 year old British child ? (He is born in UK and are British citizen.)

but in this case she would lose her 5 years of lawful life and work in UK (excercising Treaty rights) ? .. :roll:
another question is : do she will lose them even if the HO will decide positively based on `Lounes` case ?

many thanks .

chaoscontrol
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Re: I have Dual Citizenship -Wife non EU . 5 years Visa finishes ...

Post by chaoscontrol » Sun Jan 28, 2018 2:32 am

Hello and Good morning (evening) to anyone who is reading about this Dual citizens issue and also them who been helping and advising me here (thank you again).
Just couple of New interesting things about my (Dual citizen`s) case :

I been to immigration adviser couple of days ago , and received a very strange option from the that Lady , basically she said , that :
1. `It is not matter when the government will implement `Lounes C-165/16 case` into the UK law and this is not my problem (or it sounded something like that) , because it is still up to Home Office to decide if they will approve my non EU wife`s Permanent Residence application or Refuse it .`

She also said that I need to see a Solicitor to ask him a question :
2. `Which right to live here my wife should receive in case of positive outcome : derived (or derivative , not sure) or Permanent Residence , because I am naturalised as a British citizen in 2016 , but she got her 5 years Resident card document in April 2013 (or Family permit visa in Dec 2012) , so basically She was living for around 3 years with just EU citizen and another 2 years with Dual EU/British citizen and it is unknown how the HO will decide based on all that mix .. also my wife are done 5 years of Exercising Treaty rights in this Country so normally she must get a PR card even taking in account that I am naturalised as a British citizen in 2016 and I am `Dual now..

Anyone have any ideas or advices based on that ? maybe just thoughts which could be helpful in my case ?

Thank you very much for your time and reading this .

chaoscontrol
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Re: I have Dual Citizenship -Wife non EU . 5 years Visa finishes ...

Post by chaoscontrol » Mon Jan 29, 2018 1:35 pm

little update from Immigration Solicitor :
she said :
ECJ decision in Lounes may not take effect on UK law at all !
simply because ECJ decision is based on rights derived not from the Directive (2004/38), but from Article 21 TFEU (the Treaty on the Functioning of the European Union) .
This is making not obligatory to changing the UK law .


but I see that the ECJ decision says :
`EU nationals with dual nationality were effectively to be treated as ‘beneficiaries’ under the Citizens Directive. To hold otherwise would undermine the effectiveness of Article 21 TFEU by discouraging free movement and integration into different Member States.`

So she is not right then ?

Do she is right ? somebody , experts here could help with advice please ? because if thats what she says is right then it will affect thousands of Dual citizens ..

Thanks.

mgb
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Re: I have Dual Citizenship -Wife non EU . 5 years Visa finishes ...

Post by mgb » Mon Jan 29, 2018 2:00 pm

TFEU is primary eu law and the directive is secundary eu law.
The UK is bound to primary eu law independently what UK law is saying.
At least till to the brexit.

chaoscontrol
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Re: I have Dual Citizenship -Wife non EU . 5 years Visa finishes ...

Post by chaoscontrol » Wed Jan 31, 2018 11:42 pm

mgb wrote:
Mon Jan 29, 2018 2:00 pm
TFEU is primary eu law and the directive is secundary eu law.
The UK is bound to primary eu law independently what UK law is saying.
At least till to the brexit.
Thank you for the answer and the `correction`. Do that mean UK government can`t avoid implementing CJEU decision in `Lounes` into UK law ?
It looks like the HO just ignoring CJEU rules on the moment ..

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Re: I have Dual Citizenship -Wife non EU . 5 years Visa finishes ...

Post by Obie » Wed Jan 31, 2018 11:46 pm

At a hearing I attended today, home office withdrew their decision. They accepted the Lounes decision. I refused to accept the withdrawal and asked the tribunal to proceed, for other reason. But the tribunal like all of us there was aware that Lounes was binding on it.
When you have an opportunity to encourage someone, do it. You never know what a person is going through - that’s true whether they live in a mansion or a mud hut

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