Current state of EEA route apps with dual nationality

[dengash]

Apologies if the topic has been discussed in depth...

I am a dual national, UK and another EU country, living in UK. I have a permanent job with a reputable company, and have married my non-EEA wife in a Council registrar office in the UK in June.
We are thinking of applying for residency through my EU nationality (I have lived in this EU country and still maintain fiscal residence there), despite the UK one. This is because her current visa expires prior to the spring, when I complete six months at my job and therefore meet the new financial requirements which came into place in July.
Can we still proceed with this application, considering that the McCarthy judgement has dented this route? The UKBA's EUN 2.16 directive states

EUN2.16 Can family members of dual British / Irish nationals qualify for an EEA family permit?
The intention is to amend the Regulations to reflect the terms of the McCarthy judgment, however until such time as Regulation 2 is amended, entry clearance officers/caseworkers will need to continue to treat dual British/EEA nationals as though they are EEA nationals when considering an application for documentation under the Regulations. Evidence of the EEA nationality must be provided.

Is this still valid (thereby making my application valid), or should we stick to the standard UK route?

Many thanks![/quote]

[Obie]

There is a strong possibility that McCarthy will not apply to your case, as there has been a cross border activity in the past or at present. You will need to argue this and make it clear to them that you do not fall under the scope of McCarthy.

[dengash]

There is a strong possibility that McCarthy will not apply to your case, as there has been a cross border activity in the past or at present. You will need to argue this and make it clear to them that you do not fall under the scope of McCarthy.

Thanks for this! How do you think I should bolster my case? Would for example presenting bank documents of the bank account I hold in the other country, and/or proof of income tax being paid to my residence address in the other EU country help?

Also, I just realised that EUN 2.16 is placed in the section of the UKBA website dedicated to applications made from outside the UK - would it apply in my case as well?

Thanks again

[Jambo]

The rules have changed in July but the HO haven't updated the relevant EUN.

However assuming you are married, been living in the UK on July 16th and you have been exercising treaty rights at the time (for example working), you can enjoy from the transitional arrangements as long as an application for RC is made before 16th October. So better to hurry up.

See schedule 3 for the transitional arrangements.

[dengash]

The rules have changed in July but the HO haven't updated the relevant EUN.

However assuming you are married, been living in the UK on July 16th and you have been exercising treaty rights at the time (for example working), you can enjoy from the transitional arrangements as long as an application for RC is made before 16th October. So better to hurry up.

See schedule 3 for the transitional arrangements.

Thanks. My job contract started on 1 September, however I have been in the UK prior to that, as attested by the marriage certificate, which was released in the UK in June. My understanding is that as long as the application is made prior to October 16 (ie. Royal Mail tracking states that the Liverpool office received my envelope prior to that date), I should be fine. Am I reading things correctly?

[tanabrennan]

What stopping you, you can apply tomorrow, you can apply as self sufficient and if you have started working apply as a worker, dont wait royal mail tacking make sure your application is in before 16th october and make sure you give them no chance of rejecting your application to reapply again which they always do to delay the time of your first application. They dont count rejection as the first date of application.

[Obie]

If i get you correctly, you have resided in another EU memberstate other than the UK, if i am correct. In those circumstance i don't think you fall within the Scope of mcCarthy, or have i not read your post correctly.

[Jambo]

If you only started working in September, this can complicate things (depends when you moved to the UK). I suggest you avoid mentioning the start date on the application.

[Jambo]

If i get you correctly, you have resided in another EU memberstate other than the UK, if i am correct. In those circumstance i don't think you fall within the Scope of mcCarthy, or have i not read your post correctly.

But he will fall under the new changes to regulations 2. He could either try to squeeze an application before the transitional arrangements end or be prepare to fight the HO.

[dengash]

If you only started working in September, this can complicate things (depends when you moved to the UK). I suggest you avoid mentioning the start date on the application.

It is true that the contract starts September 1. But the marriage certificate, released end of June, lists a UK residence address and my profession. I would assume this is enough. Do you think this is enough?

[Obie]

If OP has resided in another memberstate prior to entering the UK or even the state for which he hold the other EU nationality, and has exercised treaty rights there, then regardless of what the UK legislation says or not, he cannot be legally excluded from the scope of community law. There are many ECJ caselaws that supports this fact.

It is important for us to bear in mind that the UK don't make community law, they are meant to apply every single bit of it. Therefore that regulation 2 can be extinguished at the drop of a coin if OP has indeed resided and worked in another memberstate, and it is intended to deprive him of his rights under community law.

[Jambo]

If he want to use his British citizen (Surinder Singh) that's would change things. But the OP states that he wishes to use his other EU nationality.

[Jambo]

Also Surinder Singh requires that the family member resided in the other member state before moving to the UK which I'm not sure is the case here.

[Obie]

There is nothing stopping him from using his other nationality, provided of course he has lived in another memberstate, and that nationality is genuine.

Whatever the UK says, it can be argued that the circumstances of Mccarthy cannot be blindly applied in all circumstances. Provided there is a link to another memberstate, someone cannot be excluded, irrespective of what regulation 2 says.

[Directive/2004/38/EC]

dengash, For people to be useful you need to answer some questions.
Have you lived in another EU member state (other than the UK)?
Did you work there?
When was this?