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McCarthy Transition Rules and New Dual Nationals

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

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Richard W
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McCarthy Transition Rules and New Dual Nationals

Post by Richard W » Thu Apr 07, 2016 9:34 pm

This is a continuation of debate from another thread, as at best the conclusion of the lengthy discussion I anticipate will be useful. The general issue raised seems to be coming up quite often, so it may even be useful to gather discussion together. The general question is whether family members lose their EEA rights as family members if the sponsor becomes British. The apparent rule is that if EEA rights are held (under British law) on 16 July 2012, subsequently asserted, and acknowledged by the government, then EEA rights continue to flow to a family member even though the sponsor be British.
noajthan wrote:
Richard W wrote:
noajthan wrote:The McCarthy transitional arrangement applies if you meet the criteria.
Several such cases have come across the forum's desk.
UKVI says the transition arrangements don't apply if the sponsor was not a British citizen on 16 July 2012. Last year you too expressed concern over whether such cases would succeed. What changed your mind? Do you know of successful cases where the sponsor became British after that date but the family member still got the card later on?

European Operational Policy Notice 09/12 also takes that restrictive view. ...
Short answer:
The McCarthy transitional arrangement applies if you meet the criteria.
Several such cases have come across the forum's desk.
If you are addressing me Richard, and not OP, then Richard I have learned by experience and from wider reading.
And from my co-Moderators, (some of whom are extremely experienced lawyers in the field of immigration).
As well as from a number of related cases that have passed across the Board's (virtual) desk in the past year or so.
If you were a politician, I would read that as, "No, I don't know of any". I was hoping you did know of successful cases. I presume you do not know of any unsuccessful cases. The general tenor of advice on the forum has been not to risk naturalisation before all the family have acquired the benefits of permanent residence.
noajthan wrote:Furthermore another thing I have learned is that the apparent interns and admin clerks responding to FOI requests are not the repository of the law.
Neither is UKVI the final word on the matter.
They are all just as capable of misunderstanding relevant legislation as you are (or I am).
So who provided the content for the statutory instrument? My hypothesis is that the operational policy notice and Schedule 3 of the the statutory instrument (SI) have a common source, rather than the notice being derived from the statutory instrument. They are only a few months apart.
noajthan wrote:An example...
Schedule 3 of Immigration (European Economic Area) (Amendment) Regulations 2012
Amendments to the definition of EEA national

2.—(1) Where the right of a family member (“F”) to be admitted to, or reside in, the United Kingdom pursuant to the 2006 Regulations depends on the fact that a person (“P”) is an EEA national, P will, notwithstanding the effect of paragraph 1(d) of Schedule 1 to these Regulations, continue to be regarded as an EEA national for the purpose of the 2006 Regulations where the criteria in subparagraphs (2), (3) or (4) are met and for as long as they remain satisfied in accordance with subparagraph (5).
So you will note the legislation that transposes McCarthy into UK law does not actually contain any condition or require that 'P' is a British citizen (/dual national).
It is couched primarily in terms of an EEA national.

It is therefore irrelevant whether the sponsor was British or not at the time (in 2012).
The crux of the matter is the OP and applicant were (are) a sponsor & dependent and there was a RC (as per the sub-paragraphs, blah blah blah).
Of course, the clause introduced by 'notwithstanding' could have been expressed by 'although he also be a British citizen'. Now, the meaning changes dramatically for some people if one changes the mood to 'although he is also a British citizen', though yet others are oblivious to the distinction.

I have read the paragraph as you suggested, and that is why I have brought it up in the context of sponsors naturalising as British. However, it seems too good to be true. I then recalled the maxim that when something seems too good to be true, it probably is too good to be true. I therefore think I should find examples before I assert my understanding as correct.

Perhaps the rule is not applicable to statutory instruments, but my understanding is that the meaning of an act of parliament is what Parliament intended it to mean, not the actual meaning of the words in which it is expressed. I rather doubt that Parliament actually gave the schedule much thought. What reduces my confidence in the literal interpretation of the SI is the words is the heading "SCHEDULE 3: Transitional Provisions" and the explanatory note,
This amendment of the definition of an EEA national reflects the ECJ’s judgment in the case of C-434/09 Shirley McCarthy v Secretary of State for the Home Department. Schedule 3 to these Regulations makes transitional provisions to address the position of persons who have acted in reliance on the previous definition.
Someone who naturalises in 2015 is not some who had acted in reliance on the previous definition.
noajthan wrote:Yes, Mrs McCarthy was a dual national lady. But the rather limited ruling the justices made (and apparently described as such), and which, interestingly, McCarthy lost, was not transposed directly into law.
Some elements of the judgement were lost in transposition.
Whether that was by accident or design - "I couldn't possibly comment".
The wording of the articles of the directive (2004/38/EC) rather supports the exclusion of dual nationals. It is the preamble and the treaties that encourage a more liberal reading. It is noteworthy that Surinder Singh finds no expression in the articles of the directive.
noajthan wrote: :idea: PS Richard, if you take one thing away with you can you understand that Operational Policy Notices (& similar documents), however useful they may be as a kind of sketch map or crib sheet, merely provide guidance.
Guidance.

Just as a map is not the territory, guidance is not the law. It has no binding statutory weight.
Generally, 'guidance' is a forewarning of how UKVI will respond. Being right may be of little use if one cannot find funds for the fight. There are some interesting assertions by the Home Office in Toufik Lounes v. SSHD (or however I should cite the judicial review):
ii) The most valuable right conferred by the Directive is a right of permanent residence.

iii) The acquisition of citizenship of a host Member State is a choice, to which advantages and disadvantages will attach.

iv) A person who is a national of a Member State has an unconditional right to reside in that Member State by virtue of international law. He does not have any right to reside there under the Directive.

v) Accordingly, his family members do not have any right to reside in that Member State pursuant to the Directive either, because their rights are parasitic on the Union citizen's. Family members have no autonomous EU law rights.

vi) The 2006 Regulations, which provide for that position, are therefore entirely lawful.

vii) There is no EU free movement imperative which dictates a different result: namely, that this Claimant's wife should be put in a more advantageous position than any other British citizen (whose family members are subject to domestic immigration rules) and any other EU citizen (whose right of residence, even if permanent, would still be qualified).
These are not the words of a department that intended acquiring British citizenship to uniformly increase one's rights.

Richard W
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Re: McCarthy Transition Rules and New Dual Nationals

Post by Richard W » Thu Apr 07, 2016 11:05 pm

I found my notes on earlier opinions on this board about the matter. There were two interesting, if frustrating, threads that both got locked:

ILR or EEA PR
Wife Holding EU and British Passport

There seems to be plenty of conflicting advice, which suggests that this question will end up going to court, unless the UKVI interpretation of McCarthy is overturned first. We didn't get any report on final outcomes from those affected: Jazzsingh1985 (departed), Minion, and one of the Adityansingh brothers.

noajthan
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Re: McCarthy Transition Rules and New Dual Nationals

Post by noajthan » Thu Apr 07, 2016 11:29 pm

Kindly refrain from presuming what I do or do not know and from insulting me by likening responses as from a politician.

There are successes invoking the 'ta'.
I'm aware of them, I don't maintain a catalogue - why should I need to after all the forum is the catalogue.
Search for them.

It is futile to attempt to claim provenance for documents that have no statutory basis when I have already demonstrated to you fundamental flaws in some of them.
There is only a single source of truth, the law, (statute & case law).

To start rewriting and paraphrasing enacted statutes is, frankly, plain barmy.

Surinder Singh is derived from Treaty not from a(ny) Directive so not surprising no mention of it in the (/any) directive.
Surinder Singh route is also irrelevant here. If Surinder Singh route applied in a certain case then the McCarthy ta would not be required to be invoked..

A citizen who happens to be a BC and 'acted' in 2015 is still the same physical being who 'acted' back in 20-forgotten - that's a law of nature.
As already explained at length by reference to the statute and schedule it is couched in terms from the perspective of an EEA national. It is not even explicitly written in the context of a dual national.
How or why lawmakers wrote it that way and under whose direction I do not know but its clearly intentional. Once enacted why does it matter.

The transposition of McCarthy to EEA regulations was evidently altered from the judgement as already explained. I suspect the cold, twisted and dead hand of HO played a part in that but how would I know.

You appear to have failed to absorb anything that has been explained, remarkably patiently, to you.
There is little or no value in this post.
All that is gold does not glitter; Not all those who wander are lost. E&OE.

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Re: McCarthy Transition Rules and New Dual Nationals

Post by vinny » Fri Apr 08, 2016 5:30 am

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.
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Richard W
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Re: McCarthy Transition Rules and New Dual Nationals

Post by Richard W » Fri Apr 08, 2016 7:55 am

noajthan wrote:There are successes invoking the 'ta'.
I'm aware of them, I don't maintain a catalogue - why should I need to after all the forum is the catalogue.
Search for them.
I did, but the only outcomes I found were ones where the sponsor was already a dual national on 16 July 2012. These we would have expected to be successes.
noajthan wrote:There is only a single source of truth, the law, (statute & case law).
And in some cases the law is unknown, as for example whether dual nationals can be deprived of British citizenship for plain murder. Treasury counsel cites the plain text meaning of the statute, and the judge demurs - he remembers the explanation of the clause given to Parliament. No case law results, for there is no conflict in the case being decided.

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Casa
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Re: McCarthy Transition Rules and New Dual Nationals

Post by Casa » Fri Apr 08, 2016 8:51 am

@Richard W To avoid this thread becoming an Immigration Boards Debating Society...I have locked it temporarily while moderators can decide where members can best contribute if they are interested, without it being taken as verified information/advice.
(Casa, not CR001)
Please don't send me PMs asking for immigration advice on posts that are on the open forum. If I haven't responded there, it's because I don't have the answer. I'm a moderator, not a legal professional.

Richard W
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Re: McCarthy Transition Rules and New Dual Nationals

Post by Richard W » Sun Jun 19, 2016 1:42 am

I am here challenging some statements Noajthan made in another thread. The OP has the problem that she might not have acquired permanent residence because her husband became British before she completed her 5 years. Throughout 2012, she had a residence card and her husband was, we believe, exercising treaty rights.
Noajthan wrote:There is a misunderstanding here and misuse of moderator Obie's previous statement from a different case (different context).

There is no prospective event here, all the relevant events are in the past.

So I would respect this opinion on this matter:
Re: Retained rights, divorced EEA citizens now a British citizen

Post by Obie » Sat Jun 18, 2016 4:42 pm
I believe OP appears to fall within the context of the transitional provision
In June 2012, when the transitional arrangements were promulgated, the naturalisation of the OP's husband in December 2014 was a prospective event, just as is Mia30's in a few weeks time.

And the context was the same - 'Does naturalisation as British remove the ability to be an EEA sponsor?'
Noajthan wrote:The transitional arrangement (ta) is doing its job; the OP is one of the people it was designed for.
It is protecting the rights of people who would otherwise be disadvantaged by the draconian imposition of a sudden change in the law or regulations.
It is British fair play in action, if you will.
The declared purpose in the statutory instrument is:
This amendment of the definition of an EEA national reflects the ECJ’s judgment in the case of C-434/09 Shirley McCarthy v Secretary of State for the Home Department. Schedule 3 to these Regulations makes transitional provisions to address the position of persons who have acted in reliance on the previous definition.
Now, the delayed change in the definition of EEA national - 16 October - as opposed to the generally relevant date of 16 July, should cover those who were about to naturalise as British. There's no reason for those who had not yet assembled their naturalisation applications to be considered as 'persons who have acted'.

You will also note that any who needed but did not obtain a residence certificate were not covered. (Non-EEA spouses were less likely to be without a residence card.)
Noajthan wrote:For the ta to operate, essentially all that is necessary is for:

OP be married to EEA national/qualified person;
OP to have obtained RC at relevant time (all as specified in the ta);
OP to remain married (at relevant time)
etc.


It's very clear...
Transitional arrangements were put in place for people who had already relied on a dual British or EEA national for a right of residence before 16 July 2012.
You can find details of these transitional arrangements in schedule 3 of the Immigration (European Economic Area) (Amendment) Regulations 2012.
That's an interesting difference from the guidance on Direct family members of European Economic Area (EEA) nationals, which says, for example, on p45:
Transitional arrangements were put in place following amendments to the
regulations in July 2012, which allowed family members of dual EEA and British citizens who had already relied upon a right of residence as the family member of that dual national to continue to enjoy a right of residence where the conditions set out below were met.
I wonder if 'or' is meant to be there, or whether it's just an incorrect expansion of 'dual British/EEA national'. It might make a big difference to a Home Office decision.

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Re: McCarthy Transition Rules and New Dual Nationals

Post by Obie » Sun Jun 19, 2016 8:25 pm

Richard you seem very stressed about this McCarthy issue. You should chill a bit. It is unhealthy . Take it easy. I can't help obsering that you have been picking a few fight over this issue. You seem like a nice person even though we don't see eye to eye on many issues.

If it is any help, I think the transitional provision is itself incapabe of making an unlawful measure lawful.

I have little dobut in my mind that the Scope of McCarthy is as broad as the UK government are seeking to make it.
After thinking long and hard, I have come to the conclusion that brexit is a cancer. The only good brexit is a dead brexit.

Richard W
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Re: McCarthy Transition Rules and New Dual Nationals

Post by Richard W » Mon Aug 08, 2016 2:21 am

Bingo!

I think I've got a document that trumps European Operational Policy Notice 09/12 mentioned above. It's part of a trawl, released on 27 April, of European Operational Policy Team notices from October 2014 through February 2016. No. 9 is Operational Notice 07/15: Clarification of the definition of an EEA national. It's key paragraph is
This paragraph, whilst drafted to provide transitional arrangements for the family members of dual EEA/British citizens following the McCarthy judgment, also applies to family members where the sponsor was an EEA national at time of the changes to the Regulations, but who then later acquires British citizenship. In such cases, the family member will continue to benefit from the Regulations and can acquire permanent residence as long as they remain the family member of that EEA/British citizen (i.e they remain married or in a civil partnership).
The literal reading is the endorsed one.

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Re: McCarthy Transition Rules and New Dual Nationals

Post by noajthan » Mon Aug 08, 2016 3:25 pm

We don't just make this stuff up. The collective wisdom and experience of the Board is pretty wise and experienced.

Took a while but you got there in the end.
Another baby step on your path to Shuhari if you will.

The clues were sprinkled within the forum; other sources to be found in various learned commentaries & etc.
All that is gold does not glitter; Not all those who wander are lost. E&OE.

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