EEA FP refused on McCarthy

[smalldog]

Hi, I'm just posting this in case anyone is interested as I haven't yet seen a report of a refusal based on the new regulations. Last week wife applied for a EEA family permit for us to visit the UK for Christmas and just received this refusal notice. I'm a dual Irish/British citizen living in Asia and we've done this since 2006 so I thought we'd at least benefit from the transitional arrangements. The interesting parts of the refusal notice read:

"You have applied to join your spouse XXXX in the UK for a short holiday.... While you have provided an Irish passport for your sponsor, I note from your application form that he was born in England. It is therefore apparent that by virtue of his birth your sponsor also holds British citizenship. In the European Court of Justice judgment in the case of McCarthy the Secretary of State for the Home Department the Court confirmed that the provisions of the Directive 2004/38 on freedom of movement and residence within the European Union are not applicable to an EEA national who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State. In the light of this judgment the definition of an EEA national has been amended.... It is therefore apparent that according to the definition in Regulation 2(1) your sponsor is not an EEA national."

Now I need to investigate family visit visas....

[Salem]

I'm a dual National myself.

Basically, if have not applied before the Rule change on 16th July, then you will no longer qualify.

My non EU Wife applied for her FP on Friday 13th July, which was granted and issued, and stays on the old Rules for as long as we stay together. For life then hopefully

Friday 13th was lucky for me, possibly the last EEA FP issued in Bangkok!

[JulietSoul]

Hmmm.. how sad. I am in the same situation but have not yet applied.

It almost sounds like, the way it is worded, that if you showed that you had lived and worked in Ireland in the past, like it would be okay?

So confusing.

[sum1]

It almost sounds like, the way it is worded, that if you showed that you had lived and worked in Ireland in the past, like it would be okay?

If the British national had been working in Ireland that person would have exercised treaty rights there and could therefore return to the UK under EEA regulation 9 (which is based on the Singh and Eind cases).

[EUsmileWEallsmile]

Hi, I'm just posting this in case anyone is interested as I haven't yet seen a report of a refusal based on the new regulations. Last week wife applied for a EEA family permit for us to visit the UK for Christmas and just received this refusal notice. I'm a dual Irish/British citizen living in Asia and we've done this since 2006 so I thought we'd at least benefit from the transitional arrangements. The interesting parts of the refusal notice read:

"You have applied to join your spouse XXXX in the UK for a short holiday.... While you have provided an Irish passport for your sponsor, I note from your application form that he was born in England. It is therefore apparent that by virtue of his birth your sponsor also holds British citizenship. In the European Court of Justice judgment in the case of McCarthy the Secretary of State for the Home Department the Court confirmed that the provisions of the Directive 2004/38 on freedom of movement and residence within the European Union are not applicable to an EEA national who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State. In the light of this judgment the definition of an EEA national has been amended.... It is therefore apparent that according to the definition in Regulation 2(1) your sponsor is not an EEA national."

Now I need to investigate family visit visas....

May I ask, apart from having Irish ancestry, do you use your Irish passport? Do you hold a British passport and if so do you use it?

(I know you've used this route before, so you might be able to argue that you are indeed an Irish citizen who has already availed of the terms of the directive).

[Jambo]

Following this FOI request, several policy documents have been released.

You might find notice "09-2012 (McCarty)" relevant to your case as it states:

Annex A – Further Detail on the Extent of the Transitional Provisions

a)The date six months after an EEA family permit has been issued, if the family member has not travelled to the UK within that permit’s validity.
1. If a family member is issued with an EEA family permit in the circumstances contemplated by the transitional arrangements, then they must travel to the UK within the period of that permit‟s validity (6 months). If they do not, they cannot rely on the previous definition of EEA national after that period expires. Travel to the UK within the period of the permit‟s validity is sufficient as evidence of a person‟s reliance on the pre-McCarthy position. A person does not subsequently have to apply for a residence card or registration certificate and will automatically acquire PR following five years continuous residence in accordance with the Regulations. If they do leave the UK, without having obtained a residence card or registration certificate then they can still apply for another EEA family permit and as long as they remain the family member of a UK/EEA national then they can rely on this for entry purposes.

I might got it wrong but for me, it seems that if a EEA Family Permit has been exercised once (by travel to the UK) before the rules changed, you can benefit from the transitional arrangements (for ever?).

You might want to challenge the consulate with this notice.

[smalldog]

I might got it wrong but for me, it seems that if a EEA Family Permit has been exercised once (by travel to the UK) before the rules changed, you can benefit from the transitional arrangements (for ever?).

You might want to challenge the consulate with this notice.

Hi Jambo, thanks for that. You had me all excited for a few minutes but then I came across paragraph 5 of Annex A:

A person who relies on these transitional arrangements for a right to reside under the 2006 Regulations and who has not yet acquired permanent residence will cease to qualify under the transitional arrangements if they cease to be the family member of an EEA national. This means that if the marriage or partnership is legally terminated, or the UK/EEA national ceases to remain a qualified person, then the family member will cease to have a right to reside.

So now I can see why my wife was refused: as we live outside UK I am not a qualified person.

EUsmileWEallsmile, yes I also hold and occasionally use a British passport, but anyway I think the rules are quite clear on this. However I was curious to notice that the refusal letter specifically referred to my birth in England (rather than the United Kingdom) so I wonder if it would have made a difference if I'd been born in Northern Ireland (as, under the Good Friday Agreement, it should).