Dual British/Irish citizen

[CheGuevara]

A mate of mine wants to get married to his partner and is a dual Irish/UK citizen but lives in London. He has a good job and they have 1 kid with the second due anytime from now. The problem is that she has overstayed her visa and he wants to go via the EU route. His Irish cit comes via his grandparents but he was born in the UK.. Any advice would be appreciated.

[Plum70]

Is your friend married to his partner or in a durable r/ship? Either way the overstay does not count.

If married then his wife can apply straight away for a residence card using form EEA2.

If in a durable r/ship then there is a prerequisite (by the UKBA) to show at least 2 years of co-habitation before qualifying for a residence card. Having children together should strengthen the application though.

See the UKBA website for more details.

[Obie]

Plum70, i think the situation on this thread is not as straightforward as we may think. There was a high court ruling several years back, which state that dual citizen British national, who have never exercised the right of free movement in another memberstate cannot claim treaty rights in the UK. This seem to be the case here. Except the individual has exercised the right to move, his/her third country national family members will not benefit from these provisions. This was dealt with in McCarthy case.However there is a caae at the ECJ, on this matter, which is yet to be concluded.

[86ti]

Plum70, i think the situation on this thread is not as straightforward as we may think. There was a high court ruling several years back, which state that dual citizen British national, who have never exercised the right of free movement in another memberstate cannot claim treaty rights in the UK. This seem to be the case here. Except the individual has exercised the right to move, his/her third country national family members will not benefit from these provisions. This was dealt with in McCarthy case.However there is a caae at the ECJ, on this matter, which is yet to be concluded.

Obviously the McCarthy case is with the ECJ. (EDIT: Oh. I guess that's what you wanted to say.)

[CheGuevara]

They have lived together for over 3 years but not yet married, they want to get married now and just wanted to know what options they have.

[Obie]

Thanks 86ti for the link to the reference for priliminary ruling. Yes i was refering to the Court of Appeal case which was settled negatively, but she was granted a right of appeal at Supreme court, who stayed the proceedings and refered the matter to the ECJ for priliminary ruling.

OP the options are to apply for a Residence card and be prepared for a refusal, as the court of appeal ruling will stand, until (but only until ) a positive ECJ ruling supersedes it.

The second option will be an interstate movement, which will engage community law, even without a court ruling.

Third option is to apply for an entry clearance overseas, subject to accommodation and maintenance requirements being fulfilled

[Monifé]

I strongly advise your friend to obtain his Irish passport and then apply for a permanent residence certificate before he makes any application for residency for his partner.

I am a dual British/Irish citizen (the other way round in your friends case, lived all life in Ireland, parents are British) and my partners application (in Ireland) was refused on basis that I am an Irish national living in Ireland.

We are seeking High Court Judicial review proceedings and have a very strong case because of my permanent residence certificate (which states that the department recognises I am a British national living in Ireland for more than 5 years with the right of permanent residency).

So basically once a PRC is obtained, they cant refuse the residence card (or if they do, take judicial review proceedings against them) because they cannot recognise his rights in one regard and not in another. It's total contradiction.

Keep an eye on the McCarthy case too, its due to be heard at the end of this month in the ECJ and will have an effect on your case, however in McCarthy's case against the Department, it is regarding her right to a PRC, so she can then apply for residence card for her husband.

Also note, that he needs to have exercised treaty rights (studied, work etc) for the previous 5 years in order to get a PRC and supporting documentation is needed which I am sure you will find a list of on the English Immigration website.

[MelC]

A mate of mine wants to get married to his partner and is a dual Irish/UK citizen but lives in London. He has a good job and they have 1 kid with the second due anytime from now. The problem is that she has overstayed her visa and he wants to go via the EU route. His Irish cit comes via his grandparents but he was born in the UK.. Any advice would be appreciated.

Most brit/irish use their irish passport to marry, and produce that for appliction of EEA/fp etc.

The UKBA accept this, but it seems they are currently delaying issue of RC's until a ruling on "McCarthy" which they hope will go in their favour, as previous cases have done it appears.

So in that respect if they marry and he uses his irish passport for that, he is effectively an irish citizen in the UK, and she becomes the spouse of an EU citizen exercising trreaty right of free movement.

The UK see this as a loophole and hope to close it with McCarthy.

[Directive/2004/38/EC]

No matter what, the Eu citizen will not be able to prove they are Irish until they get their Irish passport. So that should start first.

[Monifé]

No matter what, the Eu citizen will not be able to prove they are Irish until they get their Irish passport. So that should start first.

@Directive/2004/38/EC: Do you think the DOJ (in Ireland) were wrong to refuse my partner's application on the basis that I am an Irish national living in Ireland. I have dual British/Irish citizenship because of my parents but have lived in Ireland all my life. Below is my thread.

Partners EU1 application refused on basis of dual citizen!!!

[Directive/2004/38/EC]

Do you think the DOJ (in Ireland) were wrong to refuse my partner's application on the basis that I am an Irish national living in Ireland. I have dual British/Irish citizenship because of my parents but have lived in Ireland all my life.

I do not know what legal basis motivated the UKBA to say that UK/EU dual citizens can choose to use their EU citizenship for the purpose of family member integration.

It could have been they wanted to be nice (unlikely), or there is UK law (statute or case law) which forces them to, or that there is European case law which forces them to. Unfortunately I really do not know which it is.

I would suggest you contact http://ec.europa.eu/citizensrights/fron ... dex_en.htm They may not be helpful, but worth a try.