Immigrationboards.com

Hi all --

I am new to the Forum here, but I have been reading over the topics for a while.

My husband is dual British/Irish, and we have a Special Needs 6-year-old son who is American/British/Irish. I am American. We got married here in California almost 8 years ago, and have been living here in California for the past 10 years. I'm disabled and on Social Security (technically SSI, an income-based disability payment, essentially disability welfare/dole, I don't know what the UK equivalent is). My husband's not a citizen here, has no chance of becoming one, and as his mum is elderly and my husband also needs a major surgery and is unemployed, he wants to go back home to Northern Ireland. I applied for the EEA Family Permit (as we'd never pass the means test for the UK Spouse Visa, nor do we have the money to apply) and did the biometrics and just sent off the documents to the Los Angeles Consulate. Don't know if they'll approve me or not.

I've never been to Northern Ireland or even anywhere in Europe, and I am so stressed out over all this that all I do is cry. The more I've been reading, the more worried I get. My husband keeps telling me that everything will be fine, that after he recovers from surgery, he'll be able to get a job and we'll be okay. His elderly mum is taking us in, but she's 80 and lives in Council Housing. I just don't know if I'm doing the right thing. It's been left to me to try and figure all of this out. My husband was born in NI and lived all his life there til he came here, but he was never in Council Housing and never on benefits and so he doesn't know a thing about it. Not only that, but it's been 10 years since he lived there, and a lot has changed I am sure. He's always worked in labor or restaurant jobs and so I don't know how he thinks he's still going to be able to do that after the surgery, as he's over 40, besides. The minimum recovery time for his surgery would be 6 months, and that's assuming that all goes well and he can get physical rehabilitation.

From what I have read here, non-EEA Spouses are not allowed to claim benefits, but then someone elsewhere has said that I may be eligible for benefits in the UK as the US has a Social Security reciprocity agreement with the UK. Does that mean that I can qualify for benefits over there? I am assuming that I would have to go through a disability vetting process all over again, as the US one doesn't count there? Either way, once I leave here, I lose my SSI.

We fell on hard times here when my husband became unemployed, and then as our rent was being raised we could not afford it and so my parents took us all in. It's pretty hard to save money when you're on welfare, and so we have very little savings. My parents are not able to help us out as they are having financial difficulties of their own.

What's going to happen to me, going to the UK on a Spouse EEA Family Permit when we get to the UK and my husband applies for benefits? I know he and our son fully qualify for benefits and it's okay for them to get them, but as my EEA Family Permit is based on him being a Jobseker, if he does not have a job after that 3-month grace period, am I going to get chucked out when my EEA Family Permit expires in 6 months? At the very least I assume they will not allow me a Residence Card? My husband will have to see a doctor immediately, and so how can he qualify as a Jobseeker? I don't know if I can work or not, quite honestly. I had a series of small strokes, and some days I am all here and some days I am not. I have a college education but I never completed my degree. I am certainly not too proud to work any kind of job (and I have done in the past!) but sometimes I get easily confused and don't process information correctly. We certainly aren't self-sufficient, so after my EEA Family Permit expires, is the UK going to want me out? We're basing the EEA Family Permit on my husband being Irish, but of course as my husband and our son are both British and Irish, it's only me that's affected.

I have phoned the Citizens Advice Bureau in Belfast, and they referred me to the Law Centre for NI, but the Law Centre told me that they cannot help us unless either my husband or myself is in NI. We cannot afford a lawyer or immigration consultant here, we can barely afford our living expenses, trying to save up for plane fare.

I guess what I would like to know if there is any point to me going over at all? I am a burden here and it looks like I will just be a burden to everyone there, too. My husband does not want to go over on his own, he says the most important thing is to keep our family together. In all honesty, I am not sure I could manage here on my own, with our young son, without him. And my husband couldn't take our son with him, as he would have no one to look after him when my husband is in hospital or recovering from surgery, and while our son's Special Needs are certainly not severe, at age 6 he is too young to be looking after himself and getting himself to school, of course, and as my husband's mum is 80, well...

I am at a loss, and just don't know what to do. I'm on another forum, but this one seems to cover a broader range of topics so I thought I would see if anyone had any advice. I am worried that I am going to end up in the UK and when my Family Permit expires, they will tell me to leave, and I won't even have the money to go. I hate being in this situation, and I hate being a burden on my own social system, let alone someone else's. My husband keeps telling me that it will all be okay, we just have to get over there, that the UK immigration laws will have compassion clauses and use common sense and not want to break up families, but after reading all the things online, I just don't know.

If anyone has had an experience like this, or knows about it, I would appreciate hearing from you. Sorry this was so long, I hoped to answer any possible questions that people may have about the whys and wherefores.

Thank you.

I have no experience like yours but I will try to be helpful...

Firstly, you and your husband must sit down and seriously consider the financial implications of moving to the UK for the various reasons you highlighted: you and your son's disabilities, your husband's imminent surgery and rehab afterwards, his time away from the UK, little savings etc.

As your husband has lived abroad for some time, he is no longer deemed a 'permanent resident of the UK, even though he is British/Irish, and therefore may not have immediate access to free NHS treatment, state benefits, allowances and so on. He may be required to complete a residential qualifying period before the aforementioned is at his disposal. This implies that you and your son may also not have access to free NHS care and may need to pay for most treatments, consultations; also you may get no support from the state for a time by virtue of your husband's immediate residential status...

With you both having little or no savings, how do you anticipate you'll manage? Even with your mother-in-law putting you up for a while, you will still have monetary needs before you arrive in the UK (plane tickets, travel and possibly medical insurance) and after (day-to-day expenses: food, clothing, bills, travel expenses); and with neither yourself nor your husband working this will be a challenge.

Are you able to work at all? If so, what sort of work? What degree did you begin studying? With the UK job market as it is one has to have a good qualification, work history/experience, realistic expectations, flexibility, tonnes of perseverance and luck!

If you are able to move to the UK, as you know, in the 1st three months you do not need to apply for a residence card. However, if after this period you do wish to apply, simply include proof of how your husband is exercising his treaty rights (whether worker, self-employed/sufficient, student etc). The RC is free of charge and should be processed within 6 months of the UKBA receiving your application.

I hope I have not thrown a 'spanner in the works' as I really meant to help!

Plum70 wrote:I hope I have not thrown a 'spanner in the works' as I really meant to help!

Thank you, Plum70, for taking the time to reply.

No, the spanner's already there, obviously!

I have read elsewhere that a few returning citizens have had a bit of trouble when applying for benefits upon arrival, but that they simply appealed and re-applied at the same time and had things sorted out within a week. So I am not too concerned about that part. And the CAB has said that he may need to show proof like his one-way plane ticket, etc., so we would be prepared.

My husband's mum will have us there to stay with her, permanently, as she has 2 extra bedrooms so there aren't any worries there. My husband's sister was trying to talk her in to going in to a fold (is that the correct term for a retirement community?) but as she does not want to, having us living there with her gives her an excuse not to have to go. She's actually been giving me grief for us not being over sooner. So our housing is sorted for long-term.

From what I understand, a non-EEA Spouse on a Family Permit qualifies for NHS, and it does not count as recourse to public funds, so I'm not too worried about the medical insurance. I have seen on other forums that when UKBA has asked for proof of medical insurance for a Residence Card, they have accepted NHS coverage for the non-EEA Spouse.

We will be within easy commuting distance of Belfast, so I would be either on the bus or walking to apply for jobs and go to work. I do believe I would be able to work, at least on a part-time basis. Even being "officially disabled" here, I would be allowed to work, and the only thing that has been stopping me is that in the area I am in now, living with my parents, there is no public transportation and the nearest jobs are 5 to 10 miles away, as my parents live in the suburbs and so it is assumed that everyone will have a car. I would have already have applied for a job here now, if it were not for the fact that my husband wants us to move. I originally began studying for a degree in Anthropology with a minor in Psychology (terribly practical, I know, but I was young then!) but as I was putting myself through Uni and working to do it, I stopped taking classes when it looked like I was going to have a a good career in the job I was in, as I was making good money then and they wanted me full-time. Whilst at that company I worked my way up from receptionist to Administrative Assistant, and then branched out to inside sales and outside sales. Commission was great, I got to travel for free thanks to doing sales, and so Uni got left behind. The company closed in the mid-90's due to the recession here then, and so I went on to work for the local government as a Welfare Eligibility Caseworker. I had a child by then and was separated, so I also had a part-time job managing a bookstore, and I have also worked as a restaurant manager. When I was younger I also worked as a waitress and as a fast-food manager, I am sure I can still sling a plate and ask "Would you like fries with that?" at 2 AM with the best of them Realistically, I have a lot of experience in the customer service sector, and will happily take whatever job is available. I forgot to add that I also set up and ran a small long-haul trucking business for my ex-husband, when we were married, in addition to my regular job.

What we are living on now is essentially the same as what we would be living on over there, if only my husband and son received benefits there. My husband does not get benefits here as he is not a citizen. The only difference is here, there is no government-sponsored housing like Council Housing, and the rents are astronomical. My MIL was shocked to hear that we were paying far more for rent here in Southern California than full market price would be on her Council House, even though I was officially disabled and receiving benefits. As the government here doesn't care if you are homeless, there is very little housing assistance available. There's a 5-year-wait, and getting approved is like winning the Lottery, good luck with that. 90% of what I was receiving in benefits was going to pay rent and utilities. Really, you'd be surprised at what little someone can live on, when they have no other choice. It's all relative. Neither of us drink at all or smoke, so our main luxury expense has been the Internet

In short, my husband has no future here in the States, and so he is going to have to go, no matter what. If anything were to happen to me, my parents would not be able to look after our son, and as I have no other close relatives, it's better for my son to be with my husband.

So I come back to my original worries:

1) If I am in the UK on an EEA Family Permit as a non-EEA Spouse, and my husband is not exercising a treaty right, will the UKBA kick me out? I know they can't kick him out as he is British/Irish, as is our son,

and

2) If I am allowed to be there after the 6 month EEA Family Permit is up, and my husband is not exercising a Treaty Right (due to being ill and incapacitated) and I have not managed to find a job, will my Residence Card application be rejected, and in turn will that get me chucked out?

I understand that the EEA2 has no fee and that due to the McCarthy decision there is no point in my husband applying for an EEA1 to try and help my EEA2.

I have no desire to be in the UK illegally, or waste time and money, so those are my two main concerns.

If anyone else has had any experience with this, I would still like to know.

And thank you again, Plum70, for taking the time to reply, I do appreciate it!

Plum70 wrote: He may be required to complete a residential qualifying period before the aforementioned is at his disposal. This implies that you and your son may also not have access to free NHS care and may need to pay for most treatments, consultations; also you may get no support from the state for a time by virtue of your husband's immediate residential status...

Huh? Why do you say this without adding the required qualifications?

It depends on their intent. If they intend to arrive in the UK, get treatment, and then leave, then likely they will not officially be eligible for coverage.

But if they intend to remain in the UK and work, then they like all EU citizens arriving with that intent in the UK will be eligible for the same social services that all UK and EU citizens residing in the UK have access to.


That said, either the EU citizen needs to be exercising treaty rights, or needs to be self sufficient (through for example savings or the income of the non-EU spouse). If they do not satisfy those requirements, then I can't imagine UKBA granting a residence card. But remember the work for the EU citizen can be any real job, including part time work. I think it is enough to work part time at MacDonalds.

If you enter the UK under EEA regulations, then UK immigration law will not apply to you. The HO have no qualms about splitting up families without the right to be in the UK.

You and your son won't be entitled to claim benefits, unless you intend to claim DLA for your son, but you have stated that his special needs are not severe. A child who merely cannot cook or take themselves to school is not eligible for DLA.

http://www.adviceguide.org.uk/index/you ... _allowance

In answer to your questions:

1. Yes. The sole purpose of an EEA FP is so that a family member can accompany an EEA National who wishes to exercise treaty rights in the UK. (You have stated that your husband wishes to come to the UK for an operation and to claim benefits).

2. Yes.

I would suggest that you stay in the US with your son, whilst your husband travels to the UK and has his operation and susbsequently gains employment and establishes himself in the UK, especially since your husband will not be in a position to exercise treaty rights within 6 months. The sensible option would be to apply for an EEA FP when your husband has a job, then you will not have any residence card issues in the future.

wet26 wrote:1. Yes. The sole purpose of an EEA FP is so that a family member can accompany an EEA National who wishes to exercise treaty rights in the UK. (You have stated that your husband wishes to come to the UK for an operation and to claim benefits).

No. EEA FP is also for people who are self sufficient (and have medical insurance). This is not considered exercising a treaty right.

Directive/2004/38/EC wrote:

wet26 wrote:1. Yes. The sole purpose of an EEA FP is so that a family member can accompany an EEA National who wishes to exercise treaty rights in the UK. (You have stated that your husband wishes to come to the UK for an operation and to claim benefits).

No. EEA FP is also for people who are self sufficient (and have medical insurance). This is not considered exercising a treaty right.

Forgive me, I should have written "one purpose". In any event, neither criteria apply to the OP.

Directive/2004/38/EC, thank you so much for replying!

The link that you have in your signature leads to this: http://eur-lex.europa.eu/pri/en/oj/dat/ ... 350048.pdf

Which on Page 6, has under Article 7 (Right of Residence for more than 3 months):

2. The right of residence provided for in paragraph 1 shall
extend to family members who are not nationals of a Member
State, accompanying or joining the Union citizen in the host
Member State, provided that such Union citizen satisfies the
conditions referred to in paragraph 1(a), (b) or (c).
3. For the purposes of paragraph 1(a), a Union citizen who
is no longer a worker or self-employed person shall retain the
status of worker or self-employed person in the following
circumstances:
(a) he/she is temporarily unable to work as the result of an
illness or accident

Would that not apply to my husband, and thus to myself, in me applying for a Residence Card? What I am mainly worried about is me not even finding part-time work within those 3 months. I would happily accept a job at McDonald's, there is one within a mile of where we would be living!

When I had searched before, I could not find the text of the EU Law, only summaries, and none of them mentioned this! My husband's illness would be temporary, as he will be able to work again once his hernia is repaired. The doctors here have told us that until someone actually goes in, does the surgery, and see how it goes, they can only guesstimate that his recovery time would be between 6 months to a year.

For the record, it is our intent to remain in the UK. My husband was born there, and has dual British/Irish citizenship, as stated in my previous post. We will not be returning to live in America. It's Northern Ireland or bust.

Wet26, our son already also has dual British/Irish Citizenship, so he is entitled to whatever benefits he may be eligible for there. No, we would not be claiming DLA for him, we do not claim Social Security Disability for him here (the US equivalent) as his needs are not that severe. He was a preemie and is on the Autism Spectrum but has been improving/adjusting greatly with help. The benefit I was thinking of was Child Tax Credit, I believe it is called? That is the one that I meant, the regular one that kids can get if their parents are low-income? My husband wants to return home and get his serious inguinal hernia fixed so that he can be self-sufficient again. He is not coming to the UK to sponge off the system, and that is not my intent, either. Before coming here, my husband was born, lived, and worked in Northern Ireland, all without ever claiming benefits before, not even housing benefits. That is one reason why I am at such a loss now trying to suss out all this, he has always had a job over there, from the age of 16 onwards, and so he is not familiar with benefits, etc., and he has not had any health problems before, so he rarely had any dealings with the NHS. He had 15 years of paying taxes in the UK, a steady job, owned a home, had a car, etc. I expect that he will be able to do that again, once he gets on his feet. Do 15 years of paying taxes not count for anything? That is not a rhetorical question... I am honestly wondering now, in light of what I put up about Article 7, Paragraph 3, clause a. He was a previous worker, so...?

I am sorry, I don't understand your reference to the part about the HO splitting up families with no right to be in the UK. Even solely under my husband's and son's Irish Citizenship, they are considered present and settled on arrival in the UK, as long as they state that as their intent. That is part of the CTA agreement, I believe? Are you saying that someone who enters under UK Immigration Law would have more rights than someone who enters under EU Law? It's true, we did not apply for a Spouse Visa because that is a large amount of non-refundable money, and the people we talked to at the Citizens Advice Bureau in Northern Ireland advised us to go the EEA FP route as my husband has dual British/Irish Citizenship.

I am sorry to be such a bother, but these things have been weighing on my mind. My husband is insistent that we come with him as he is worried what will become of us if we stay here, and in truth I would not look forward to being without him.

Directive/2004/38/EC, or anyone else, any thoughts on the Article 7 Section I quoted above? I have seen previously on other forums that people have used dual British/Irish Citizenship when they are permanently disabled to bring over a Spouse under the EEA FP and they got Residence Cards for their spouses, surely a temporary disability on the part of my husband, with me searching for work (or hopefully actively working!) would be all right, too?

Thank you!

Your son is not eligible for any benefits, as he is 6, but a parent can claim a Child Benefit. It is a small amount though, some £20 per week.

Tax credits are for workers. Once you or your husband start working you should apply for tax credits (working and child).

I would suggest you read all you can about it to find out what you are entitled to and what you need to do to claim, especially since you will be relying on benefits when you first arrive.

http://www.direct.gov.uk/en/MoneyTaxAnd ... /index.htm


7.3 in the Directive states:

For the purposes of paragraph 1(a), a Union citizen who
is no longer a worker or self-employed person shall retain the
status of worker or self-employed person in the following
circumstances:

(a) he/she is temporarily unable to work as the result of an
illness or accident;

Remember that your husband is entering the UK as an EEA National, not as a British Citizen. Because your husband is having the op before working, I'm not sure if this will apply to you. I'm sure someone else will know.

And just a comment on my personal experience. My husband is British, has been paying taxes and NI for the past 15 years (including whilst he lived abroad for 2 years), has never claimed benefits, never uses the NHS as he has private cover, etc etc. The EEA regulations are strict, and being a british citizen doesn't count for anything - you either meet the requirements, or you don't.

Directive/2004/38/EC wrote:

Plum70 wrote: He may be required to complete a residential qualifying period before the aforementioned is at his disposal. This implies that you and your son may also not have access to free NHS care and may need to pay for most treatments, consultations; also you may get no support from the state for a time by virtue of your husband's immediate residential status...

Huh? Why do you say this without adding the required qualifications?

Hold my hands up... I should have been more explicit! Apologies to the OP. Still I do not think that the EU national would have immediate access to some benefits which are contribution-based i.e linked to NI contributions.

Okay, maybe I should clarify a bit... Yes, my husband has Dual Citizenship, British and Irish. But, due to the status of the Irish in the UK, he is in a much different category than someone who is say, British and French or British and Whatever-EU-Member-State.

Any person holding an Irish passport who shows up in the UK and declares themselves to be "present and settled" is presumed to have ILR. It's due to the CTA and the Good Friday Agreement. Really.

So, for the purposes of the EEA FP, my husband is considered Irish, but even if he did not have British Citizenship, being Irish alone would confer on him present and settled/ILR status in the UK immediately, just upon him showing up and declaring that to be his intent. This much I already know. And so whether he is deemed as Irish or whether he is deemed as British, for the purposes of benefits and the NHS it makes no difference and he has already contributed to NI.

As far as I know there is no other EU State (or even Commonwealth countries) whose members get the preferential treatment that the Irish do, in the UK. Besides that, my husband does have 15 years of NI contributions. I don't know what the cut-off date for him being out-of-date on those is, but I am sure someone will tell us when he applies for benefits.

wet26, from what I understand, you came over under Surinder Singh, which is much different and I am not surprised they gave you grief over it, as the UKBA really didn't like having to concede that to EU Law. From what I've read of your past circumstances, it's ridiculous the way they treated you. For what it's worth, I have already applied for the EEA FP and, as per phone conversation with the Consulate here, I should be receiving it in this next week.

If it makes you feel any better, when we wrote out the cover letter for the EEA FP we purposely added that my husband would be a "Jobseeker, as pursuant to his EU Treaty Rights." The person who got my EEA FP application at the Consulate here called me and asked me what "Jobseeker" meant. Seriously. I can't even imagine having to go the Surinder Singh route and trying to explain that to them after having someone ask me what "Jobseeker" meant. I really would have thought that was self-explanatory, no? Especially as it is the wording that is used in the Directive? Do the UK consulates not have anyone dedicated to EEA FP's, or does just one department handle all visas? I am hoping they got it right and post-dated it to September, as per my request... we'll see.

Because of this preferential treatment that the Irish get in the UK, I am fairly sure that the UK is going to be closing this "loophole" in how they implement EU Law, and from what I can see, they are doing it already. EN and AN, McCarthy, all these decisions are coming down in favor of UK Immigration Law, not EU Law. You can see the UKBA's current ECO Guidance Notes on dual British/Irish Nationals (EUN2.16) here and see the UKBA's archived Dual Nationals text previously from their page here.

Because of this, I'm going to balls it out and go over, before I can't. If I wait a year or two, that chance that I have now may no longer be there. My husband says that if he carks it working, at least then maybe immigration will have pity on me, as our son will be there and in school. And he said that besides, by the time he comes up on the waiting list for surgery with the NHS, he may be retirement age, anyway. As long as they don't feel him up during a physical, he said he should be fine If both of us can find at least part-time jobs, that will qualify me for my Residence Card, and then we can worry about the next step from there. And, if we're over there, we can qualify for Legal Aid if it becomes necessary. It's scary as hell, but at the very least I have a chance right now, a chance to keep my family together.

While I certainly do not want to be "MissusSparrow v Home Office," I will fight to keep my family together and I would like to be prepared for a worst-case scenario.

I would still like to hear anyone's thoughts on 7.3 in the Directive, as here in the UK's own notes on how to implement it, it gives no time limits and my husband certainly has worked previously in the UK for more than 1 year, and has a genuine chance of being engaged for a job after he recovers. Also, in light of the EN and AN and McCarthy decisions, I do wonder whether all of this will be academic. Anyone? Bueller?

I know that the cut off for recieing contributions based JSA is two years, so if you've not paid any Class 1 NIC in the last two years you won't get any.

It happened to me...

I think you've missed my point.

It doesn't matter that I entered the country under the Singh ruling. When I applied for my RC, I applied as a family member of an EEA National, as will you.

Your Irish husband will be treated as any other EEA National. My husband does not have dual citizenship, he is British, but for the purposes of my application he was Spanish as we had been living there for two years.

I had a choice to apply for an EEA FP or to go though UK immigration. I chose EEA because it was the cheaper option. I can not, therefore, ever rely on UK immigration rules. I could not, for example, say "my husband is not exercising treaty rights, but he is British, so the HO will look upon me more favourably".

If you enter the UK with an EEA FP, as you are rightly able to do, you will always be treated as the spouse of an EEA National.

Furthermore, you have stated that your husband has a hernia. I know nothing of hernias, but if he is not at death's door, could he not work for a period of time when he arrives, in order to exercise treaty rights so you can obtain your RC without any dramas? That's all that he needs to do and your worries are gone... In addition, if it is not live saving surgery, there is likely to be a lengthy wait for the operation on the NHS.

You mentioned living in Belfast, there are call centres there... no doubt a mind numbing job, but not physically demanding...

Wanderer -- Thanks for the info! That would be the same for receiving Unemployment Benefits here in the US. Good to know, and thank you again!

wet26 -- I'm sorry, I haven't missed your point, but it seems I am not making my own point clear. Please accept my apologies, what with me having had the small strokes, sometimes I think I am making myself clear but it turns out otherwise. What you are saying makes perfect sense, logically and reasonably, but the UKBA's POV is some cases is to view dual British/Irish Nationals solely as British Citizens if they are in the UK.

It does make a difference that my husband is dual British/Irish (and I think it would make a difference if he was already over there and trying to get an EEA Family Permit for me). That is why, under that section on the UKBA ECO Guidance Notes specifically for dual British/Irish Nationals, they have it listed as "Under Review, please refer to ECO Support for guidance." For Surinder Singh, there has been a definitive ruling from the ECJ and so you know exactly, legally, where you stand, as regards to both British Law and EU Law. In Surinder Singh, the ECJ has definitively ruled that EU Law as per the Directive trumps British, full stop.

Dual British/Irish Nationals have had no such clarification, whether they are in the UK or out of it in a non-EU country. What they have had is 2 rulings ("EN and AN" and "McCarthy," as linked in my previous post) that have all gone against the dual British/Irish National. Right now it is being left up to individual judges and cases as they come before them, and the ECJ will not interfere, as per the Directive, and as per rulings, the ECJ has clearly stated that the Directive only covers, applies, and protects EU Members that are not in their home EU Member State. It states it in the Directive itself, I believe? Am I making sense (I hope?)? It's because the dual British/Irish National is in their home EU Member State (in this case, the UK) and they have not exercised Treaty Rights outside of the UK (like under Surinder Singh) in another EU Member State.

Even though my husband is a dual British/Irish National, when we arrive to live in the UK, the HO can choose whether or not to apply the Directive to him, as he will be in his Home EU Member State. His Irish Citizenship no longer counts. So right now it's all up in the air, and that's officially the UKBA's/HO's stance. I seriously doubt that the ECJ is going to interfere in these types of cases.

Do you see now why I am so worried about getting in while I can? Yes, right now the UKBA is issuing EEA Family Permits to dual British/Irish. Me, at least (hopefully, still haven't received it yet). Will they continue to do so in the future? I have no idea, as the UKBA has not decided yet. It will probably come down to a case like Surinder Singh, and as we live in a non-EU country, we'd be out of luck.

Will the HO issue me a Residence Card once I'm over in the UK, as per the Directive? I don't know, because at that point they can regard my husband as solely British. From what I can see on other forums, yes, they are issuing Residence Cards to non-EU spouses of dual British/Irish Nationals, as long as it suits the HO. As per previous rulings, just because they let the non-EU spouse in to the UK under an EEA Family Permit does not mean that they continue to treat the dual British/Irish National spouse as Irish. Crazy, but there you have it and they are picking and choosing. In "EN and AN," the woman was Kenyan and wanted to bring her children over. The HO said no, as her dual British/Irish spouse was in his Home Member State and so the Directive did not apply. That was in Northern Ireland. I have no idea whether or not she was issued an EEA FP, as she originally applied for Asylum in Ireland and then married a guy in Northern Ireland. In "McCarthy," she was dual British/Irish and applied for a Residence Card to try to get her Jamaican husband (who I believe entered the UK illegally, as he did not have permission to enter or leave to remain in the UK) a Residence Card. The HO refused to give Ms. McCarthy a Residence Card based on her Irish passport as she was also British and she lived in her Home Member State. As I said, the HO is picking and choosing, and they will probably continue to until a case with merit goes to the ECJ. I would rather not be that case!

If we can get jobs, chances are that as an American, they will assume that I'm not looking to bring any of my family over and so chances are they will issue me a Residence Card. I am hoping to glide in under the radar, before the UKBA issues a definitive ruling on how the Directive applies to dual British/Irish Nationals who are in the UK.

I am sorry to make this so long, but I did want to clarify it for anyone else who comes along later and reads it. These dual British/Irish National cases are rare right now but they are happening, and I don't want anyone to get the wrong idea. The more I have read about it the more concerned I have become. Right now dual British/Irish Nationals do not have the same protection afforded them in the UK that Surinder Singh cases do. Them's the facts. It's all up to the discretion of the HO. While I believe that the HO will not look any further into the details of my eventual Residence Card application, they can do so and apply British Law if they so choose. They have done so in the previous EN and AN and McCarthy rulings and the ECJ has not interfered.

To clarify, I believe the UK will look on my husband, as a British Citizen, more favorably as regards to access to benefits (as opposed to just an EU person), not immigration. I am sorry if I did not make that clear before. But, once we are in the UK, the HO may deem him solely as British (as per what I have stated lengthily up there). If that happens, I suppose we get Legal Aid and throw ourselves upon the mercy of the court?

As for my husband's hernia, it is serious (they're gonna call in the interns to come look and get out the cameras) and it has become strangulated before, but when we hit the UK I have convinced him to not say anything about it and get whatever job is available, as dammit, I want some peace of mind and a Residence Card! A call centre job is fine for either of us, we would take a job cleaning toilets if that is all there is, seriously. I just want a chance for us to start over and have a basic life. When you have been down as low as we have, your expectations get a lot simpler. A roof over your head, food on the table, a steady job (ANY job), and some security for ourselves and our son, that is all we are hoping for.

I'm assuming you had no problems getting your Residence Card, because you and your husband both are probably highly skilled workers and have very good jobs? I'm hoping they'll issue mine if we show that at least my husband and I have jobs, period, even part time.

You had said "If you enter the UK with an EEA FP, as you are rightly able to do, you will always be treated as the spouse of an EEA National." I am hoping that is the case, as the Kenyan Spouse in "EN and An" entered through Ireland, and with "McCarthy," the Jamaican Spouse did not have leave to enter or remain in the UK. I'm entering legally, and they're letting me in under the EEA Family Permit, so...

And I would like to thank you again for helping to clarify my thoughts and what we will do once we are over there in the UK.

It doesn't matter what work you do, just so long as you are employed, and get paid for it.

I think you are winding yourself up unecessarily with regard to the "EN and AN" and the "McCarthy" case law, as neither apply to your situation. A factor in both cases was that the Irish/British National had never left the UK. Your situation is different, as your husband is bringing his spouse to the UK, from outside the EEA. You should focus on finding a precedent for this scenario.

If you are issued with an EEA FP, it means the HO agrees that your husband is an EEA National. As long as he comes to the UK and gets a job, you should get a Residence Card.

Forget Surinder Singh. Surinder Singh applies solely to the issue of an EEA FP. The Singh ruling had no bearing on my RC application. In order to obtain my RC, I had to prove to the HO that my British National husband had a job, and that we were living together in the UK. I got my RC without any problems, even though my husband was in his home member state.

If all else fails then go live in an EEA member state for 6 months and reapply.

read this:

http://www.opsi.gov.uk/si/si2006/20061003.htm#9

There is not much I can say that hasn't already been said, except this; I have just left Ireland, 15 months ago. I have a science degree and 10 years experience, I'm 38 years old. before I left, the company I worked for closed down, and I spent a year looking for work. I couldn't even get a job in a supermarket. A book shop I applied to was looking for shop assistants and they required applicants to hold a degree, (just to work behind the sales counter).

The number of unemployed in the Republic of Ireland is now the highest it has been in more than 50 years, this will have a knock on effect on Northern Ireland.

People are leaving Ireland on a huge scale, this should give you pause to think.

My advise would be to stay where you are. But I think you already know this!!

Good Luck.

Patrick, perhaps where you are now is better? Somewhere in the UK? If so then any tips for the OP on the climate there?

Hi Patrick --

I'm very aware of the situation over there. We have friends and family in both the north and down south and also in Scotland and London and Germany and Belgium. It's just as bad here the US in the area we're in. The unemployment rate (and also the number of people on the move) is the highest it's been since the Great Depression, and the area we're in has the 3rd highest unemployment rate in the US. Things are pretty awful everywhere, the world over. And yet people still move here, while others move out, and people go to where they have family and secure housing. The grass is always greener, no?

This past week I've called over to several places near where we'll be living, to ask them if they're hiring and saying that we'll be over in September. Everyone seemed pretty amenable to looking at my CV and interviewing me when I'm over. I'm guessing they must not have had many Yanks in that area, no one hung up on me My husband's family seems to think I'll land a job fairly quickly, as an American there I'm a novelty and might draw in more business to anywhere I'm doing a customer service type job. It would be funny if I got a job before my husband did!

Barring a Lottery win, my husband can never become a citizen here, and he needs surgery. Right now we're staying with my parents and there is a possibility they might lose their home. The homeless shelters are full here and there are no housing benefits, and that's for citizens. My husband would have to go in one homeless shelter and I and our son in another, and that would only be for 6 weeks and then we'd be out on the street. The public transportation in our area is non-existent, it is 5 miles to the nearest bus stop. Try walking that without bursting in to flames when it's 38 C out, that's what the temp's been lately. In Norn Iron we have someplace to go and a chance for me to become a citizen over there eventually. No matter if we spend the next 20 years working at minimum wage jobs, it's still a better chance than what we have here. At the least, our family will be together and have a roof over our head and food on the table. Believe me, after what we've already been through, we do not have Great Expectations, we just want to get by.

I do thank you for your perspective, though! I don't know where you are now, but you must know that if you're Irish, almost any Irish accent is going to give you an edge here in the US in almost any job, as a good many Americans are daft for any type of Irish/British/Scots accent, not that many of us Yanks can tell them apart. If you can manage to get in to the US (and stomach it) you will be a novelty here and have an edge, even if it's just for a bookstore job.

I hope everything does go well for you. I have had a number of friends leave Ireland (and even more considering it) for hopefully better opportunities, and it's sad to see Ireland's best and brightest going, once again.

MissusSparrow wrote:Even though my husband is a dual British/Irish National, when we arrive to live in the UK, the HO can choose whether or not to apply the Directive to him, as he will be in his Home EU Member State. His Irish Citizenship no longer counts. So right now it's all up in the air, and that's officially the UKBA's/HO's stance. I seriously doubt that the ECJ is going to interfere in these types of cases.

No. The home office lets him (as a UK + other EU citizen) choose if he is being a UK person for the purpose of entering, or is being a EU person. It is not up to them at all.

Directive/2004/38/EC wrote:No. The home office lets him (as a UK + other EU citizen) choose if he is being a UK person for the purpose of entering, or is being a EU person. It is not up to them at all.

So just to clarify, the difference in our case would be that as my husband is and has been outside of the UK, and as the UK have already issued me an EEA FP based upon my husband's Irish nationality, they now have to accept him as an EU person? And the deciding factor in "McCarthy" and "EN and AN" was that the dual national was already there?

Sorry to be a pest, I just want to make sure I am understanding it correctly. This has definitely been a learn-as-you-go kind of situation for us.

And thank you for your reply, Directive!

MissusSparrow wrote:

Directive/2004/38/EC wrote:No. The home office lets him (as a UK + other EU citizen) choose if he is being a UK person for the purpose of entering, or is being a EU person. It is not up to them at all.

So just to clarify, the difference in our case would be that as my husband is and has been outside of the UK, and as the UK have already issued me an EEA FP based upon my husband's Irish nationality, they now have to accept him as an EU person? And the deciding factor in "McCarthy" and "EN and AN" was that the dual national was already there?

Sorry to be a pest, I just want to make sure I am understanding it correctly. This has definitely been a learn-as-you-go kind of situation for us.

I am not sure I totally understand your question.

Your husband (who is UK + other EU citizen) can choose the be considered "other EU citizen" in the UK for the purposes of bringing his family. It does not matter if he was born in Europe, in the UK or out of Europe. It just matters that he will work in the UK or be self sufficient and have suitable medical insurance.

Plum70 wrote:

Directive/2004/38/EC wrote:

Plum70 wrote: He may be required to complete a residential qualifying period before the aforementioned is at his disposal. This implies that you and your son may also not have access to free NHS care and may need to pay for most treatments, consultations; also you may get no support from the state for a time by virtue of your husband's immediate residential status...

Huh? Why do you say this without adding the required qualifications?

Hold my hands up... I should have been more explicit! Apologies to the OP. Still I do not think that the EU national would have immediate access to some benefits which are contribution-based i.e linked to NI contributions.

Hasn't it already been decided that a uk citizen is automatically resident if they intend to reside here in court?

Also. Child tax credits are not conditional up on working.


Edit. Sorry. Just noticed the date of post didn't realise it was Oh simular threads n not main form sorry.
Enter as an irish or British he still had the entitlement as being British.