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Dual irish/british nationals?/ the McCarthy case at ECJ ?

Posted: Sat Oct 30, 2010 12:43 pm
by shanade
Hi There, i'm new to this forum, just registered now.

I was wondering if anyone has heard what the judgement was on dual british/irish nationals obtaining a family permit for spouse?

There was a case of McCarthy vs the secretary of state that went to the European court of Justice, and I can't seem to find anything about it online, and from what I can gather, the case has been undecided now for absolutely ages!

My situation is, is that I am born in the UK, my mother is british, and my father is irish, so I have an irish passport due to having an irish parent,

I was included on ONE irish passport which belonged to my father when I was a child, As an adult I have had ONE british passport, and the next time I applied for a passport I took out an irish one, and that was BEFORE I met my spouse.

Some solicitors that I have enquired with. have said that I CANNOT apply for a eea family permit for my spouse as I am NOT exercising treaty rights by working in the uk and having an irish passport, since I have NOT PHYSICALLY MOVED from one eu state to another.

Other lawyers I have asked have said that it is irrelevent how I come to have irish nationality, and that I CAN obtain an eea family permit for my spouse.

What strikes me as contradictory is that I have read on other sites that a resident of Northern Ireland can use their irish passport to apply for an eea family permit, but they HAVE NOT PHYSICALLY MOVED to exercise treaty rights either.???

Does anyone please please please have any updated information/ decisions on dual british/irish nationals and the eea family permits?[/b]

Posted: Sat Oct 30, 2010 3:44 pm
by Monifé
Hi Shanade,

The McCarthy case was heard on Thursday but the judgement has not been made yet and there has been no indication as to when it will be made, I am hoping it will be in the next few weeks.

You do need to be exercising treaty rights to obtain a eea family permit for your family member. You need to be either working, studying with sufficient resources (no public funds) and health insurance for both of you or self employed.

If you were to apply for eea family permit it will probably be refused or pending the outcome of the McCarthy case. The 2nd solicitor was right, you do not have to have moved from one member state to another in order to avail of the benefits of the directive.

I would say the first thing you need to do is apply for a permanent residence certificate along with your Irish passport. You will need to show that you have been exercising treaty rights for the last 5 years (school, working, college etc) and show evidence of your addresses by way of utility bills. Once this is obtained, they cannot refuse the eea family permit as they have already recognised your rights under the directive.

My situation is similar to yours but the other way round, live in Ireland, have Irish and British citizenship. Never lived anywhere but Ireland and I applied for the permanent residence certificate and it was approved. This shows that the Irish immigration recognise my rights as a British national in Ireland. I then applied for residence card for my partner and it was refused on the basis of my Irish nationality.

See my thread Partners EU1 application refused on basis of dual citizen!!!

I am now bringing High Court Judicial review proceedings against the DOJ in Ireland and our case is very strong because they have already recognised my rights by issuing me with a permanent residence certificate which states that I am a British national living in Ireland with the right of permanent residency because I have exercised treaty rights for the last 5 years (mostly school, college and a few part time jobs).

The different thing about the McCarthy, is that she might not be a qualified person under the directive 2004/38/EC Free Movement of Persons because she has not exercised treaty rights for a while and is on benefits.

Also, her case in the ECJ is that she is taking the Home Office to court to get her permanent residence certificate, because she applied for things all wrong. She first applied for eea family permit, it was refused and then she applied for PRC to prove her entitlements but the Home Office copped on and refused it.

Posted: Sun Oct 31, 2010 8:46 am
by maviesk
Well I'm a British/Irish citizen who has never lived in Ireland and my partner got his RC a couple of weeks ago... I never actually told them I'm a British citizen, do they even bother to check? Obviously someone who is claiming benefits rings all sorts of alarm bells. Hilariously, my student loans were considered efficient funds too.

Posted: Sun Oct 31, 2010 9:38 am
by Monifé
maviesk wrote:I never actually told them I'm a British citizen, do they even bother to check
Did you send your British Birth Certificate in with his application?

And on the application form (in Ireland anyway) it says how did you (EU Citizen) enter the state and when did you first register. You would have to then say you were born in the state and never registered as you are a citizen of the state, well we had to in our case.

If you did not say anything about it on the form or include your British Birth Certificate, well then maybe that was the key to success.

Unfortunately, I was advised to sent my Irish Birth Certificate in with the application and maybe that is what they based their decision on. Anyway, it is irrelevant if they check or not, the fact is, once one is exercising treaty rights and they have an EU citizenship other than (or aswell as) the country they are residing in, they are covered by the directive. In the case Ruiz Zambrano (European Citizenship) [2010] EUECJ C-34/09 the Advocate General said that EU citizens dont have to physically move from one member state to another in order to benefit from the directive.
Earlier this month the Advocate-General of the in the Grand Chamber of the European Court of Justice, held that physical movement to a Member State other than the Member State of nationality is not required before residence rights as a citizen of the Union can be invoked – in other words, a right of residence in a Member State is based on citizenship of the Union, a free standing right alongside the concept of free movement between Member States. Such rights derive directly from the Treaty on the European Union and Article 18 of the Treaty of course provides for the prohibition of discrimination based on nationality and should therefore apply to all citizens of the Union.

Posted: Mon Nov 01, 2010 12:25 pm
by maviesk
Perhaps you're right. I didn't have to sent a British birth certificate, since my Irish passport was considered proof of my identity/nationality. The British form also didn't ask when I entered to the UK, it was more concerned with what I was doing at the time of application (i.e. which right I was exercising)..

Sounds like Ireland makes things difficult for people all round when it comes to immigration policy.

Posted: Mon Nov 01, 2010 3:21 pm
by Monifé
maviesk wrote:Sounds like Ireland makes things difficult for people all round when it comes to immigration policy.
You got that right!! Hence why they get slapped on the wrist regularly by the ECJ and the courts are back-logged with cases against the Minister for Justice.

Posted: Mon Nov 08, 2010 1:58 pm
by MelC
I know a few people who are in Northern ireland, and as such also hold an irish passport.

their Third country national spouses were granted EEA/fp's at the various british Embassies, most now also have their Residence cards.

I had always been of the opinion that actual Movement was required, but that is not the case.

If you have an irish passport and are living in the UK, you hubby/wife has the right under the directive to join you.

it appears to be legal circumvention of UK immigration rules?