McCarthy and ECJ/ Dual British/Irish nationals

[shanade]

I have previously posted on here enquiring about british/irish dual nationals.

I am just still at a total loss to understand this seemingly grey area.

Whilst the McCarthy case has been refused, there are so many other british/irish dual nationals on here and on other sites who are claiming to have got the residence card for their non-eea family member without a problem, I just don't understand, does anyone know what EXACTLY was wrong with the McCarthy case?

Also if you are exercising treaty rights at the time of the application, does it matter if you have been on benefits long term beforehand on medical grounds?

I'm born in Uk to an english mother and irish father, i have an irish passport that states great britain as place of birth,
But do I have to first obtain a permanent residence card for myself?

Every where has different info!

[86ti]

See Curia webpage.

[Monifé]

Ok mini heart attack!!

Has the McCarthy case got a negative decision from ECJ? I thought that judgement wasn't available yet?

Or is the OP referring to the case that was refused in the British Supreme Court?

[Monifé]

Also if you are exercising treaty rights at the time of the application, does it matter if you have been on benefits long term beforehand on medical grounds?

If you are exercising treaty rights at the time of your partners residence application then there should be no problem.

However, if your question is in relation to a permanent residence application for yourself, you might encounter problems as you need to have exercised treaty rights for the 5 years previous to the application. This can be studying, working or self employed, or self-sufficient (no benefits).

For my own PR application, I just submitted evidence of my residencies for the last 5 years and letters from secondary school and the two colleges I went to, stating what course I did and when, oh and my British passport (living in Ireland and was obtained a few weeks before I made the application) and also payslips from my summer jobs and part time employment.

[86ti]

Has the McCarthy case got a negative decision from ECJ? I thought that judgement wasn't available yet?

I might have missed it but where did the OP say so?

[Monifé]

I might have missed it but where did the OP say so?

Whilst the McCarthy case has been refused

I might have misinterpretted her. Just read the above line and panicked.

[86ti]

Just British Supreme Court, I guess. Don't panic before you get a link to an official statement or such.

[smalldog]

It's there now.

[86ti]

That's "just" the opinion of the advocate general, not the final judgement yet.

[Obie]

It appears that the advocate general bow to the pressure of the UK, Ireland and Denmark. This opinion does not look good at all. Although some aspect of it might be helpful to people who have lived in the Uk lawfully, and subsequently married an EEA national

[avjones]

It's not the final judgment, but it's pretty definite. Doesn't look good for the Mccarthy-type case in the future:

Union citizens such as Mrs McCarthy neither suffer prejudice to their right of free movement (35) nor are discriminated against compared with other British nationals who are in a comparable situation. The mere fact that she has not only British but also Irish nationality does not make it necessary to apply to her and her family members the EU law provisions on the right of entry and of residence.

and

Where a Union citizen is a national of two Member States of the European Union but has always lived in only one of those two States, she cannot claim a right of residence under Directive 2004/38/EC in that State.

[Monifé]

It appears that the advocate general bow to the pressure of the UK, Ireland and Denmark. This opinion does not look good at all. Although some aspect of it might be helpful to people who have lived in the Uk lawfully, and subsequently married an EEA national

Where a Union citizen is a national of two Member States of the European Union but has always lived in only one of those two States, she cannot claim a right of residence under Directive 2004/38/EC in that State.

Obie: You know the details of our case, is the above going to seriously affect it? I'm really worried now.

[Obie]

Advocate General Kokott's and Sharpton's opinions are contradictory of each other.

The later formed an opinion based on the consequence of not addressing the issue of reverse discrimination, whiles the former formed an opinion based on the status quo.

One does not know whose opinion will be adopted by the judges in there opinion. Even Advocate general Kokott is not sure which direcetion the court will follow, which is why he proposed for the court to allow further submissions should the court wishes to go advocate Sharpton's direction.

The advocate general appears to be in a state of confusion. We will just have to wait till next spring when the rulings would have been delivered.

In your case Monife, the Irish authorities have issued you with a Permanent resident certificate, they cannot simply revoke it, when you have not been away for 2 years. Also you did not obtain it fraudulently, Besides the advocate general did not in actual fact preclude people in your situation from choosing their nationality, but it should not be purely for artificial purpose. The facts of that case are different from that of yours.

Mrs McCarthy is in her 50's , has never chosen to pick up her Irish citizenship, until she was in her mid to late 40's. In this case it doesn look real, as pointed out by advocate general in his opinion. Therefore an assessment will have to be done on the individual cases. This is stated in Paragraph 33 of his opinion.

I believe you are much younger than her, so you can say when you came of age you identified with you British Heritage than Irish. That might be perfectly acceptable. Also the important issue is, they cannot withdraw your PRC.

You lawyer should argue that this is just an opinion, that Advocate general Kokoot did not propose that people in your case cannot choose to adopt another nationality,however it has to be real, and an assessment will have to be undertaken to ascertain the circumstance, which the Irish have done and issued you with a Permanent Resident Certificate, which is valid.

Your age and personal and economic circumstances are different from that of Mrs McCarthy. That there is a contradiction between the opinions of Advocate Sharpton anf Kokoot, therefore these opinion cannot be conclusive. In any event the decision of the Irish to issue with PRC is legally binding on them and cannot be withdrawn retrospectively, as this will be proportionate, against the principle of community law.

[Monifé]

Advocate General Kokott's and Sharpton's opinions are contradictory of each other.

The later formed an opinion based on the consequence of not addressing the issue of reverse discrimination, whiles the former formed an opinion based on the status quo.

One does not know whose opinion will be adopted by the judges in there opinion. Even Advocate general Kokott is not sure which direcetion the court will follow, which is why he proposed for the court to allow further submissions should the court wishes to go advocate Sharpton's direction.

The advocate general appears to be in a state of confusion. We will just have to wait till next spring when the rulings would have been delivered.

In your case Monife, the Irish authorities have issued you with a Permanent resident certificate, they cannot simply revoke it, when you have not been away for 2 years. Also you did not obtain it fraudulently, Besides the advocate general did not in actual fact preclude people in your situation from choosing their nationality, but it should not be purely for artificial purpose. The facts of that case are different from that of yours.

Mrs McCarthy is in her 50's , has never chosen to pick up her Irish citizenship, until she was in her mid to late 40's. In this case it doesn look real, as pointed out by advocate general in his opinion. Therefore an assessment will have to be done on the individual cases. This is stated in Paragraph 33 of his opinion.

I believe you are much younger than her, so you can say when you came of age you identified with you British Heritage than Irish. That might be perfectly acceptable. Also the important issue is, they cannot withdraw your PRC.

You lawyer should argue that this is just an opinion, that Advocate general Kokoot did not propose that people in your case cannot choose to adopt another nationality,however it has to be real, and an assessment will have to be undertaken to ascertain the circumstance, which the Irish have done and issued you with a Permanent Resident Certificate, which is valid.

Your age and personal and economic circumstances are different from that of Mrs McCarthy. That there is a contradiction between the opinions of Advocate Sharpton anf Kokoot, therefore these opinion cannot be conclusive. In any event the decision of the Irish to issue with PRC is legally binding on them and cannot be withdrawn retrospectively, as this will be proportionate, against the principle of community law.

Thanks for your advice Obie. Much appreciated.

Takes a bit of the worry away

[crn123]

Obie makes a very good point about the two Advocate-General's opinions being distinct from each other - and with both cases yet to go to a judgment, I'm going to hazard a guess that both cases are going to be decided at the same time.

As far as the McCarthy case is concerned, I think the fundamental problem she has here is that even if she is allowed to claim on the back of her Irish citizenship, she still doesn't qualify for a right of residence under EU law because she's claiming benefits, can't support herself without state aid and cannot demonstrate that she's ever worked for a 5-year period. With her likelihood of winning her case looking weak whatever decision the ECJ comes too, one wonders why the UK Supreme Court even bothered to send the reference!

Nonetheless, now that the reference is there, I have to say that I find the logic of Kokott's opinion on the citizenship point pretty unconvincing - and he doesn't really explain away the previous cases, with which Kokott's opinion seems to be in places quite contradictory.

Lets hope that the ECJ comes up with something far more legally meaty when it comes up with its judgement - or I suspect we'll be in for another round of litigation to fix the problems!