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:Short answer:Richard W wrote: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?noajthan wrote:The McCarthy transitional arrangement applies if you meet the criteria.
Several such cases have come across the forum's desk.
European Operational Policy Notice 09/12 also takes that restrictive view. ...If you are addressing me Richard, and not OP, then Richard I have learned by experience and from wider reading.The McCarthy transitional arrangement applies if you meet the criteria.
Several such cases have come across the forum's desk.
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.
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: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).
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.noajthan wrote:An example...
Schedule 3 of Immigration (European Economic Area) (Amendment) Regulations 2012
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).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).
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).
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,
Someone who naturalises in 2015 is not some who had acted in reliance on the previous definition.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.
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: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".
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):noajthan wrote: 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.
Just as a map is not the territory, guidance is not the law. It has no binding statutory weight.
These are not the words of a department that intended acquiring British citizenship to uniformly increase one's rights.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).