Your Europe and Family Permit
Posted: Mon Jul 20, 2015 10:18 pm
Hi all
My husband was refused FP for second time in May. I was a dual Brit\Irish citizen and renounced my Brit cit. I live in Northern Ireland and I contacted Solvit Ireland as the ECO made so many mistakes in his application. They have said that they believe our marriage is one of convienance! Solvit UK accepted our case but then wanted to know where I was living when I renounced my Brit cit. Solvit appear to be using the Mc Carthy case law in relation to our application but as I pointed out to them I do not fall under that category As I read it the McCarthy case law applies to only dual nationals who have always been residing in the country of which they are a national and have never exercised their Treaty rights - ie: worked, and I in fact fall outside the scope of the McCarthy case law.
It would appear that someone in Solvit UK is misreading the McCarthy case law. I contacted Your Europe about this and this is their reply - am speechless....
Dear Citizen,
Thank you for your enquiry to the Your Europe Advice service.
The issue you raise has not been clarified under EU law. There is no legislation dealing with citizens of dual nationality who renounce one of their nationalities to facilitate the residence of a non-EU national with them. The matter has not been ruled upon by the Court of Justice of the EU either. Therefore, the issue cannot be definitively advised upon by this service. You are correct that the McCarthy case, C-434/09 revolved around the rights of a citizen who was a dual national of Ireland and the UK and did not renounce either citizenship. However, certain analogies can be drawn from that case. For example, it is notable in the McCarthy case that the Court placed emphasis on whether Mrs. McCarthy would be deprived of enjoyment of the substance of her rights as an EU national if the Court issued a negative decision. In your case, by analogy, it is arguable that a negative decision in relation to your situation would not deprive you of the substance of your rights as an EU national.
You should also note that Article 35 of Directive 2004/38/EC allows Member States to take effective and necessary measures to fight against abuse in the law on free movement of persons by refusing, terminating or withdrawing any right conferred by the Directive in the case of abuse of rights or fraud, such as marriages of convenience. Abuse has been defined by the European Commission as artificial conduct entered into solely with the purpose of obtaining the right of free movement and residence under Community law which, albeit formally observing of the conditions laid down by Community rules, does not comply with the purpose of those rules (Cases C-110/99 Emsland-Stärke (para 52 et seq.) and C-212/97 Centros (para 25)).
However, in the absence of definitive direction from the EU, either through legislation or a decision of the Court of Justice, it is not possible to anticipate how your case should be decided.
I realize that this is not the answer for which you may have hoped but I trust that the above information is of some assistance to you. Should you have any further queries in relation to your rights in the EU, please do not hesitate to revert to the Your Europe Advice service.
Yours sincerely,
Your Europe Advice
I would appreciate your thoughts please as am at my wits end with all this...
My husband was refused FP for second time in May. I was a dual Brit\Irish citizen and renounced my Brit cit. I live in Northern Ireland and I contacted Solvit Ireland as the ECO made so many mistakes in his application. They have said that they believe our marriage is one of convienance! Solvit UK accepted our case but then wanted to know where I was living when I renounced my Brit cit. Solvit appear to be using the Mc Carthy case law in relation to our application but as I pointed out to them I do not fall under that category As I read it the McCarthy case law applies to only dual nationals who have always been residing in the country of which they are a national and have never exercised their Treaty rights - ie: worked, and I in fact fall outside the scope of the McCarthy case law.
It would appear that someone in Solvit UK is misreading the McCarthy case law. I contacted Your Europe about this and this is their reply - am speechless....
Dear Citizen,
Thank you for your enquiry to the Your Europe Advice service.
The issue you raise has not been clarified under EU law. There is no legislation dealing with citizens of dual nationality who renounce one of their nationalities to facilitate the residence of a non-EU national with them. The matter has not been ruled upon by the Court of Justice of the EU either. Therefore, the issue cannot be definitively advised upon by this service. You are correct that the McCarthy case, C-434/09 revolved around the rights of a citizen who was a dual national of Ireland and the UK and did not renounce either citizenship. However, certain analogies can be drawn from that case. For example, it is notable in the McCarthy case that the Court placed emphasis on whether Mrs. McCarthy would be deprived of enjoyment of the substance of her rights as an EU national if the Court issued a negative decision. In your case, by analogy, it is arguable that a negative decision in relation to your situation would not deprive you of the substance of your rights as an EU national.
You should also note that Article 35 of Directive 2004/38/EC allows Member States to take effective and necessary measures to fight against abuse in the law on free movement of persons by refusing, terminating or withdrawing any right conferred by the Directive in the case of abuse of rights or fraud, such as marriages of convenience. Abuse has been defined by the European Commission as artificial conduct entered into solely with the purpose of obtaining the right of free movement and residence under Community law which, albeit formally observing of the conditions laid down by Community rules, does not comply with the purpose of those rules (Cases C-110/99 Emsland-Stärke (para 52 et seq.) and C-212/97 Centros (para 25)).
However, in the absence of definitive direction from the EU, either through legislation or a decision of the Court of Justice, it is not possible to anticipate how your case should be decided.
I realize that this is not the answer for which you may have hoped but I trust that the above information is of some assistance to you. Should you have any further queries in relation to your rights in the EU, please do not hesitate to revert to the Your Europe Advice service.
Yours sincerely,
Your Europe Advice
I would appreciate your thoughts please as am at my wits end with all this...