Do dual EU-UK citizens have rights under EU law?

[reynaldogr]

Just spoke with the Lounes Case barrister chamber's assistance and for any consultation he will charge 350 pound an hour. Not willing to waste this money not knowing for sure that i will get a direct/plain answer really. I would have thought all this information would have been available to the general public, but apparently it isn't for the time being.

quick update on my wife PR app. time line:

Application sent : 23/04/2018
HO received the Application: 24/04/2018
Payment taken: 25/04/2018
Email confirmation:
Biometric letter:
Biometric enrolled:
C.O.A received:
PR Card:

Keep everyone in the loop.

[silverman123]

Hi @kim999
Yes you are right and that is my viewpoint.
So let's say it that way in good example.
2016 Someone who is eu citizen naturalised (British citizen) he wasn't aware that holding dual nationality will effect his wife residence card.
After few days/weeks/months/years whatever the time was.
He applied for his wife permanent residence.
So home office simply will refuse his application according to regulation 2 which says EEA NATIONALS EXPECT BRITISH . So home office built that decision(2 regulation) according to macarthy did you get me now.
And as it mentioned at home office Web site that Macarthy didn't exercise her treaty rights because according to the directive no one can exercise treaty rights at home and she never exercised her treaty rights at any MEMBER OF STATE so she can't also be treated as surinder singh.
So the European Court of justice couldn't find anything to help that girl at all.
So she has to go under the immigration rules.
Then lounes fighting against his right because his wife exercised her treaty rights.
So MACARTHY WILL ONLY APPLY FOR PEOPLE IN HER SITUATION NOTHING MORE.
HOME OFFICE TRIED THE BEST TO PUT EVERY DUAL NATIONALITY IN THE SAME BASKET BUT ECJ STOPPED THIS.
SIMPLY BY SAYING CAN'T BE TREATED THE SAME WAY LIKE BRITISH WHO NEVER LEFT THE COUNTRY. SO NOT ALL DUAL NATIONALITY IN THE SAME BASKET.
YES WE DON'T HAVE THE RIGHT UNDER THE DIRECTIVE BUT WHAT BEEN TAKEN FROM ONE HAD HAS GIVEN BY THE OTHER HAND WHICH IS ARTICLE 21 TFEU AND ON CONDITIONS SO NON EU FAMILY MEMBER WILL BE PROTECTED.
NOW WHAT ABOUT US?!!! WE ARE NOT LOOKING FOR RC BUT PR.
I ASKED MANY SOLICITORS AND SEARCHING ONLINE THEY ASSURED ME YES WE CAN MAKE APPLICATIONS FOR PR.
I WILL BE VERY HONEST YES I'M NOT 100%SURE.
BUT WHAT WILL HAPPEN TO US? MACARTHY WILL NEVER GOING TO APPLY ON US NO MATTER WHAT WILL HAPPEN SIMPLY WE DIDN'T BORN BRITISH.
MAYBE THEY WILL GIVE US ANOTHER 5 YEARS UNDER EU ROUTE ARTICLE 21 !!!!????
But the judgment does say that at all.
So this is thr question we need to look for an answer for it.....
@Reynaldogr thanks for your updates man.

[CR001]

Can members kindly refrain from positing in CAPITAL letters. It is very difficult to read and in the same as SHOUTING.

announcements/read-before-you-post-neti ... 75081.html

[kam999]

Guys,

Probably many of you are surfing on internet for answers like myself. Below is (to a point) satisfying answer and an Expert's insight in relation to our situation:

(The original question was same, Dual nationals and their non eea family members PR after HO amends EEA regulations)

Answer:

"I can't answer individual questions but in principle once the EEA Regs are amended to give effect to the latest development any non-EU citizens married to a dual EU27/UK national should be able to claim permanent residence by analogy with the rules set out in the free movement Directive"

Seems like we are close to acquire our PRC.

[silverman123]

"I can't answer individual questions but in principle once the EEA Regs are amended to give effect to the latest development any non-EU citizens married to a dual EU27/UK national should be able to claim permanent residence by analogy with the rules set out in the free movement Directive"

That answer was for me this morning i was about to post it but thanks anyway kim
Yes i asked the. Man because he is a prof in EU LAW" and he answer my question straight away.
That's why i always feel like there is a hope.
Also i asked lounes solicitor and she confirmed me yes we can make applications. For PR
Another solicitor and she is very very famous in London.
She assured me yes we can make applications FOR PR.
THX guys keep update please.
Good job Kim999 for searching for solutions.

[kam999]

Thank you for taking the initiative Silverman and sorry about nicking ur msg as it was an anonymous questioner and i never thought it would be you.
The thing is u r due to apply for PRC whereas i am in the middle of process, already recieved my CoA and now waiting for answer so m a bit conscious.
Thanks to this form and to all others who share and don't let me feel that i am alone.
When i was visiting solicitors they advised me otherwise and said that switch my status to spouse visa as i had a littile over six month time on my residence card and could have done it legally without leaving the country. However, i didn't listen, right or wrong decision, too early to say but i had to take my chances and here i am sharing and learning from people who are in very situation like myself.
The thing hurts/hunts me most is my negligence in regards to preparation for my application as i am usually pretty organised and was sure that i did not left anything bebind while i was applying. Matter of fact, i only realize that dual natinals non eea family members lost their privilege of residing in uk by hodling a residence card, on the day when i wanted to send my application as i was searching for supporting document. Anyway, my firm believe is everything happens for a reason, i cannot say for myself yet why it happened to me or to all of you but once we all will settle down in future, it will be revealed to us the wisdom behind it.
Good luck guys.

[silverman123]

Hi @kim999
No need for sorry you were doing a great job by searching for solutions for all of us.
Next week i will send my application and i will mention lounes and anyway very soon and i geuss during May they will amend the EEA regulations.
And hopefully we will hear a good news.

[silverman123]

Quick update from YOUR EUROPE ADVISE.
they have sent it to me before i joined this forum.


You wonder what is the legal situation. 

The Lounes decision referred to in you post was handed down by the Court of Justice in November 2017. 

Whilst the Court held that Directive 2004/38 was inapplicable, nevertheless, a family member in your circumstances was held by the Court to be vested with rights under the Treaty, which were equivalent to those provided under Directive 2004/38. Accordingly, you must be treated no worse than the family member of an EU citizen in similar circumstances. 

The Home Office has not implemented this decision yet. The result is that if someone seeks to rely on the Lounes Judgment, his application is likely to suffer delay until the Home Office resolves to implement the Lounes caselaw. 

Given the indications provided in your post, it appears that you may be eligible for the right of permanent residence, in May of 2018

[silverman123]

Here we goooooo.
I just saw and confirmation from home office on one of queries. It says
Dear..........
Thank you for the email,

You will be able to stay and still be able to apply for Permanent Residence after your spouse becomes a British Citizen.

Regards

Xxxxx
UK Visas and Immigration

[silverman123]

By the way the guy who wrote the request is not covered by TA he will apply for his permanent residence under lounes next year in March.
The more we read more we search more we find our selves near to what we want
Just be positive

[kam999]

Silverman123 you are the star and saviour and the struggle and hard work you did, we can see its results now. I saw the HO response as well the one you quoted above, its just matter of time now when we will see updated guidance for case workers who are handling PRC applications.
I am wondering where are the other active members, we are nearly there, so far this is the relaxing weekend for me of this year.

[reynaldogr]

This is excellent news! Many thanks for keeping all this forum up to speed siverman/kam999... may i know the link where you get to see this reply?
Br

[eubritish]

I think it is very obvious that Home Office will have to abide by the Lounes judgement and treat dual citizens (who have exercised treaty rights in the UK and eventually naturalized) as EEA citizens for the purpose of their family members's visa/RC applications.

The question of 'who will bell the cat?' is *when* will they update their regulations? it has been nearly six months since the decision was handed down by ECJ and all Home Office has done so far is send out 'hopeful' emails.

[kam999]

Reynaldogr, u can go to what do they know website and Silverman left a hint in his post, since we cannot mention names here i am afraid u have to google it, but yaa its true.

Eubritish, so far this is the first response where home office eventually confirmed that dual nationals non eea family members can go ahead for PRC. In regards to ur question read our previous posts on the same thread where Lounes barrister went for last argument on 25/04/18 and in his tweet he confirmed success and stated that HO agreed to amend its Eea 2016 regulations. So yes it has been 6 month since Lounes decision but just few days back HO acknowledges it and now the question should be will that judgment cover us and Silverman just wrote their answer above which could be verified on whatdotheyknow website that yes we can go ahead and apply. I hope it helps, please all of you be positive, there was nothing really in our hand and it kinda worked out for us.

[silverman123]

This is excellent news! Many thanks for keeping all this forum up to speed siverman/kam999... may i know the link where you get to see this reply?

non_eea_family_member_of_dual_br#incoming-1143175

[silverman123]

You are welcome kim999
I have left a hint for you @Reynaldogr
Try to Google it .
And Thanks for all of you guys
I'm so happy we are all here to help each other other.
And let me explain what happened.
When lounes had to fight for his residence card he referred the matter to High Court.
Then they High Court got confused they couldn't find what to say his wife exercised her treaty rights.
Then the High Court referred the Whole case to European Court of justice then ECJ has ruled and finished the matter.
Then ECJ had to return the whole case back to the High Court of course that had to take time.
I knew the hearing day from along time ago
So now the case has determined by high court.
And it means a good news which is lounes residence card on his way but firstly they have to amend the EEA regulations which i expect days from now not long than this.
And let me tell that the home office know exactly what they will do from along time ago even if they didn't show up.
You want examples.....
Ron121. Refused him then withdraw the apeal then PR
Success82. Straight away accept his PR
EUBritish. Withdraw the apeal.
Hopefully will hear a good news.
And who knows maybe a lots of cases been accepted and we don't know.
So it seems like they know what will they do but keep it after the high Court determination.
It seems like we will have a good summer guys

[silverman123]

Hey guys.
Another update and different date
Another confirmation from home office for people who are looking to apply for permanent residence.

Good news keep coming
Once again he is not covered by TA


Dear..........

Thank you for the email,

Your conditions/rights to exercise your rights as an EEA national dependant will not change when your spouse becomes a British Citizen. When you apply for Permanent Residence the application will be considered on the basis that you remain the spouse/dependant of an EEA National.

Regards
Xxxxx
UK Visas and Immigration

[reynaldogr]

Hey guys.
Another update and different date
Another confirmation from home office for people who are looking to apply for permanent residence.

Good news keep coming
Once again he is not covered by TA


Dear..........

Thank you for the email,

Your conditions/rights to exercise your rights as an EEA national dependant will not change when your spouse becomes a British Citizen. When you apply for Permanent Residence the application will be considered on the basis that you remain the spouse/dependant of an EEA National.

Regards

Xxxxxxx
UK Visas and Immigration

Thanks for the tips silverman123! i have found the above-mentioned responds. The latest one as well. This is definitely excellent news. I reckon HO has some sort of preliminary guidance to our cases now. I had asked to Further Nationality Inquiries something similar than A AWAN, 3x weeks ago (after receiving the email confirmation by the HO that Lounes Case is acknowledge), so hopefully i will be having a positive respond soon as well. Keep you posted.
Br

[chaoscontrol]

Hi guys , thanks for your positive mood , and all the updates about recent High Court listing and their decision about implementation of CJEU `Lounes`ruling .

Sorry for not posting so long, been super busy .

Could anybody please explain to me :

what will mean that `derivative` right for us after this latest UK High Court ruling ?

Do that still mean we can not have Permanent Residence card but just that one strange`derivative` right to live and work without any years counting towards PR ?


or if, for example (our case) : I am naturalised 4 years AFTER we been married with my spouse and she is DONE her 5 years on RESIDENT CARD DOCUMENT now - do she will be eligible for PR now ? (as soon as HO guidances will be updated and `legislation amended of course ).


Is the words from CJEU Lounes ruling :` this derivative right should be no worse or equal to one acquired from directive 2004/EC` means anything for HO ? or they just trying to ignore that ?

our timeline :
App send : 28 March
Biometrics done at 7.th April
COA received 16.th April dated 12th
Lounes`ruling mentioned in the Cover letter and printouts from different sources also included.
now waiting ...

Thanks everyone involved for your support on this forum , it is really important to fight together in our case !

[silverman123]

@chaoscontrol
Please have a look on all our discussions and opinions and confirmation from HOME OFFICE mentioned above.
It's logically no more 5 years will be issued anymore for any of us.
What is the point of the judgment then !!!!???
If we think for another 5 years why we have been waiting for lounes judgment then!!??
We could apply under immigration rules and that's it and no more headache.
But the fact is will carry our life as normal as long as our spouse exercised his/her treaty rights.

[kam999]

Hey Guys,

I hope you all are well.

I think we should give HO a break, their boss just resigned from her post.

You see derivative here means a portion of something (which in our case means non EEA FMs can live here as long as their spouses stay). however, we should not only concentrate on this word the other part of the TL decision is:

Where an EU national has exercised Treaty rights and has become so integrated into their host Member State that they have acquired nationality of that state, the rights of their family members could not be any stricter than the rights afforded to family members of EU nationals under the Directive.

I totally understand the hesitation of this thread followers but we will not be ignored. Following Brixit, people did hasty things. HO is not our friend but they understood why our spouses or some of us acquired BC and they have to respect it (some of the above responses are just a glimpse of it where HO finally started to acknowledge our application as previous responses were straight, if you are not covered by TA you need to apply under UK immigration rules).

Probably many of you are looking for a positive news which i don't have for now, but I wanted to show you our situation from a different angle.

Let's say if someone renounces his British citizenship to have a normal life with his/her family as then that person will be considered only EEA national, and later this story is published in a paper that just to save family this person gave up his/her British Nationality. Do you think HO will be able to justify it? Windrush victims were enough to show HO that any drastic moves could lead to nasty endings and someone died and HS ended up resigning. It just does not sound practicable. Please be advised HO has many reasons to refuse your application once you come under immigration rules. So don't give up, even if they refuse your application get legal help, share your stories, many people here may be not able to seek legal advise and they are looking for other ways and kinda end up here, so help them and help yourself, be hopeful and remember you spent at least 5 years here and integrated into this country with your spouses and abide by this country's law, a small mistake cannot take everything away from you, and if it does, Fight Back.

[silverman123]

@kim999
That's the spirit that we need To fight back Just In case of something happen but everything will be ok its just matter of time that's all.
Focus more on what the judge say

  "A national of one Member State who has moved to and resides in another Member State cannot be denied that right merely because he subsequently acquires the nationality of the second Member State in addition to his nationality of origin"

Another one
"
In the first place, denying him that right would amount to treating him in the same way as a citizen of the host Member State who has never left that State,"

"Member State cannot restrict the effects that follow from holding the nationality of another Member State, in particular the rights which are attendant thereon under EU law and which are triggered by a citizen exercising his freedom of movement."

  "  It would also follow that Union citizens who have exercised their freedom of movement and acquired the nationality of the host Member State in addition to their nationality of origin would, so far as their family life is concerned, be treated less favourably than Union citizens who have also exercised that freedom but who hold only their nationality of origin"

Honestly if you read it as it should be you guys will feel that shouldn't be any problem and we can apply for permanent residence under lounes case
Stay positive

[chaoscontrol]

Ok, I understand that you are optimistic , but I am judging based on facts . `ll ask differently :

Why do CJEU decision in Lounes not mentioning Permanent residence status then ? Also UK High Court`s ruling not clearing out precisely about Permanent residence ?

sure there should be reason for that ?

Also Home Office :
They successfully wrongly denyed derivative rights for YEARS (since 2012) to people who have acquired them using wrongly interpreted McCarthy ruling as a reason for refusing peoples applications !

And after all this you are saying it will be allright ? they even tryed to avoid to implement CJEU decision in Lounes after CJEU judgement !
And they would be successfull in that case aswell if 2 years TRANSITIONAL PERIOD under EU jurisdisction won`t be confirmed in March/end of Feb. That was the moment when HO understood that they can not just wait till March 2019 (Brexit) and avoid implementing Lounes anymore .

So, I am still very worried about HOW `HO` will implement `Lounes ,

do they will try again , for example :

modify UK High Court ruling , to get better results for themselves , to meet their famous `immigration targets` and deny PR status to people who acquired PR - explaining it with : `derivative right not counting years towards PR` or something similar ?

If nobody able to answer these questions for now , then there should be no happinness regards to STANDART PROCEDURES of implementing CJEU decision .

The question stays open :

HOW Lounes will be implemented and if the HO will continue to ignore wordings from CJEU decision about : `that right should be no worse than one which comes from Directive 2006/EC...`

[kam999]

Morning all,

Chaoscontrol, in regards to your query, Lounes decision has nothing to do with permanent residence, it was more about residing inside UK lawfully as a FM of EEA national under EU freedom of movement, ECJ took 5 months to rule against HO. Same goes for UK high court as lounes applied for EEA2 not PRC.

McCarthy, she was trying to use her Dual nationality to accommodate her spouse without exercising treaty rights. What people in our situation can take from all this chaos is:

When McCarthy was implemented everybody suffered regardless EEA2 or PRC, we are hoping that Lounes decision will also put everything back in place the way in was before McCarthy, it was a bit grey area, however, ECJ kinda clear that by saying :

Where an EU national has exercised Treaty rights and has become so integrated into their host Member State that they have acquired nationality of that state, the rights of their family members could not be any stricter than the rights afforded to family members of EU nationals under the Directive.

ECJ judgement cannot be implemented straightaway as the case was referred to ECJ by UK high court who were unsure themselves at that point that how to refuse Lounes as it is different than McCarthy, and now since 25 04 18 final argument has taken place in High Court and HO agreed to amend EEA regulations, we were not aware of it until one of the follower mentioned Lounes's barrister's tweet.

Further, HO replies to all relevant queries by saying something similar like:

We are currently considering our response to the judgment and envisage amending the
Immigration (European Economic Area) Regulations 2016 to implement the judgment as
soon as practicable, which we expect will be in the early part of this year. In the interim, no
decision will be taken on cases in which the sponsor has declared dual citizenship until we
have agreed the way forward and such cases have been put on hold to ensure that we are
in compliance with a binding judgment from the CJEU.

The above reply was before Final argument in regards to Lounes in high court.

I totally understand your hesitation, look, lounes barrister is not sure himself that we can retrieve our right (PRC) under Lounes, but there is nothing wrong in being optimistic. We cannot do anything until HO amends EEA regulations and only then further action can be taken. But to put you at ease, HO has nothing to lose by saying that you are not covered under TA hence you fall under UK immigration rules, but they did not say that instead they first said they would amend eea regulations as soon as possible and the last response was that you can apply for PRC even after your spouse has acquired Dual nationality. Please visit what do they know site.

The worse case scenario HO will not give us PRC but we will be here lawfully with our spouses by retaining residence card or later settled status and I am sure eventually we will acquire indefinite leave. The thing is we want to be with our families, it hurts that we may not acquire PRC now (which I hope we will) but end of the day we want to live with our love ones and you can live here with them under Lounes. We did a genuine mistake by one of the spouse acquiring BC and pay back could be we end up applying under UK immigration rules, which is not the case right now, this thing at least put me at ease.

[silverman123]

Once again
Must not be stricter than those who provided by the directive 2004/38
Means
Equality of all the rights to directive 2004/38
It means.
Thr length of the residence card.
Money for application.
Processing time for application.
After 5 years people are qualified for permanent residence. (equal to the directive)
On the other side.
Article 21
Equal treatment
1. In accordance with Article 24 of Directive 2004/38/EC, subject to the specific provisions provided
for in Titles I, II and IV of this Part, all Union citizens or United Kingdom nationals residing on the
basis of this Agreement in the territory of the host State shall enjoy equal treatment with the
nationals of that State within the scope of this Part. The benefit of this right shall be extended to
FAMILY MEMBERS of Union citizens or of United Kingdom nationals and who have the right of
residence or permanent residence.
WE ARE NOT PRIMARY CARERS like other derivative so DON'T WORRY we WILL CONTINUE as we are to our permanent residence.
And LOUNES had to be determined by high court they just confirmed the face of the judgment that's all.
This is my opinion