Thanks very much for your speedy reply Jambo. Are you from Edinburgh, Hertz?
Yes, i was thinking/hoping i was worrying for nothing. It's just i wasn't sure how to understand the response. But i emailed the same link that Dora provided, and have a response already
Here's my email -
Dear Sir/Madam,
I hope you can help me with my query.
I am a Dual National, Irish/UK, in full time employment living in London. I applied for an EEA Family Permit for my Thai Wife to come to live with me in London, on 13th July 2012 at Bangkok. The first part of her APET number being the date of 13th July 2012. The Permit was granted and issued, although my Wife cannot fly untill the end of November, due to work commitments from both of us.
I am aware of the new Regulations (McCarthy) that came into affect on July 16th, and also aware there is some sort of Transitional period where the Rules are not being implemented untill October 16th.
My questions are -
1) That there will be no problem with my Wife entering the UK with me at the end of November, the rules being implemented on Oct 16th?
2) Once in the UK, my Wife can still apply for the 5 Year Residents Card and this will be granted as per normal?
I have been assured by different people and reading on the Internet, that because we applied for the Permit before July 16th, that the new Regulations will not apply to my Wife.
So really, it's just to offically clarify the situation, as it is a bit of a worry.
One last thing, i want to fly over to Ireland with my Wife for a week at Christmas. So i think she will have to keep her Passport to do this, and then apply for the 5 Year Residents Card when we fly back to London. Would this wait be any problem, not applying on arrival due to the flight to Ireland? Or could you give any advice in in this matter.
I thank you in advance, and hope i am worrying over nothing.
Here's their response -
Thank you for your email regarding your wife’s right of admission under the Immigration (European Economic Area) Regulations 2006 (“the Regulations”). The European Operational Policy Team deals with policy related queries only and is unable to advise or comment on specific cases. However I can advise on the policy relevant to your query, which should be helpful.
As you may be aware, amendments to the Regulations were made on 16th July 2012 which included an amendment to the definition of ‘EEA national’ in regulation 2(1). This amendment was made in accordance with the determination of the Court of Justice of the European Union in the case of McCarthy (C434-09), to the effect that the definition of EEA national is now “A national of an EEA state who is not also a United Kingdom national”.
This means that a person who is a dual UK and EEA national will not be an EEA national for the purposes of the Regulations and that any family members of that dual national will therefore not enjoy a right of residence as the family member of an EEA national under the Regulations.
However, the UK Border Agency recognises that there will be persons who have previously relied upon a right of residence as the family member of a dual UK/EEA national and therefore transitional provisions were introduced to allow persons meeting the conditions set out in those provisions to continue to benefit from the provisions of the Regulations. These transitional provisions are set out in Schedule 3 of the Immigration (European Economic Area) (Amending) Regulations 2012.
The provision relevant to the situation you have outlined is at paragraph 2(4)(a) and 2(5)(a) of Schedule 3, which sets out that a person who applied for an EEA family permit before 16th July 2012, who is subsequently issued with an EEA family permit as a result of that application, and who travels to the UK within the 6 month validity period of that document will benefit from the transitional provisions and will continue to be treated as the family member of an EEA national for as long as they remain the family member of that dual UK/EEA national.
A person in the circumstances outlined above who travels to the UK within the validity period of their EEA family permit is not obliged to obtain a document confirming a right of residence (for non-EEA nationals, this is a residence card) in order to enjoy a right of residence once they are in the UK, as they will automatically have a right of residence provided that they continue to qualify for such a right under the Regulations. However, such persons may choose to make a free of charge application for a residence card in order to evidence their right of residence, for example when seeking employment or accessing services. Where a person meets the conditions set out in the transitional provisions, an application for a document confirming a right of residence will be considered in the same way as that of a family member of an EEA national who is not also a UK national.
Where an application is submitted for a residence card, the UK Border Agency will make a decision to issue or refuse a residence card within 6 months of receiving that application. However, we recognise that applicants may require their documents to be returned before a decision is made on their application, and we therefore allow for applicants to request the return of their documents without needing to withdraw their application. It should be noted that we may need to request that the passport is resubmitted at a later date in order to complete the consideration of the application. You can find further information about requesting the return of documents submitted in EEA applications on the UK Border Agency website here (see section titled “How can you get your passport back from the UK Border Agency if you need to travel?”).
I hope that this information is helpful to you.
Yours sincerely,
European Operational Policy Team
UK Border Agency
So please just confirm for me what i think that says, that we are ok
And yes, we did get in, in the last minute. I was aware the McCarthy judgement was going to be implemented soon. But honestly wasn't aware how soon!!! Friday 13th was lucky for us it seems
