Implications of McCarthy decision?

[Trent]

that directive is not applicable to a Union citizen 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.

My brother was born, grew up and worked outside the UK before arriving here in 2009 to work (he holds dual UK/EEA nationality). He subsequently entered into a durable relationship with a non-EEA member visa national who was on a student visa in the UK.

My first impression on reading the ECJ decision is that this decsion would not affect him, given that he has, at one point prior to 2009 and his current relationship, worked in another Member state. In effect, he was excercising treaty rights when he arrived here in 2009 and he was not always resident in the UK.

How does the McCarthy decision affect his ability to apply under the EEA route, if at all?

[Trent]

I'd appreciate any insight into this. Do Ben, Directive/2004/38/EC, Obie, 86ti and Vinny still post on these boards?

[Obie]

Did he reside in another memberstate? was he working or self-Employed there? Was he born in the UK, or naturalised as a British Citizen?

How long has he been in a Durable relationship with this lady?

[Trent]

Thanks for responding Obie.

Did he reside in another memberstate?

My brother was born, was resident and worked in another memberstate (of which he is also a national) before arriving here in 2009.

was he working or self-Employed there?

He was an employee.

Was he born in the UK, or naturalised as a British Citizen?

He was born outside, received UK nationality through UK parent.

How long has he been in a Durable relationship with this lady?

September 2010 is when they started seeing each other, they moved in together about 6 months ago.

My fear is that the UK have taken the McCarthy decision, which seems focused on a very particular set of circumstances (i.e. never lived outside the UK, never worked) and has applied this in a broad sense, preventing all other genuine dual nationals from using the EEA route unless taking the Singh route. I hope I am mistaken here.

Second issue, as you were quick to point out, is for him to prove the "durablility" of relationship.

[Obie]

I am of the view that your brother falls wholly outside the scope of McCarthy, such that he should be able to sponsor his partner.

On the basis of what you have stated in your post, the relationship seems durable in nature.

[Trent]

That is encouraging, thank you.

[Directive/2004/38/EC]

Was he born with British citizenship?

In any case, I think the wording of the McCarthy decision is far more limited than UKBA is taking it. I think any decision to refuse an application to somebody in your brother's situation could be (easily??) appealed.

Read through: http://eumovement.wordpress.com/2012/07 ... y-british/

[Trent]

He was born abroad from a UK national father which, as I understand, qualified him for UK nationality from birth. He also obtained other EEA nationalities from birth.

The article you mentioned expresses well what I was trying to get at earlier. Namely the broad "interpretation" of the (ex?) UKBA and it's implications in my brother's scenario.

Looking at the guidance for EEA family permits:

Where a person has applied on the basis that they are a dual British citizen/EEA national on or after 16 July 2012 then the application must be refused unless the person either:

Meets the provisions of regulation 9 (which gives effect to the ECJ case of Surinder Singh or
Comes within the scope of the transitional arrangements set out below

.

Although he would be applying for residence card, I could well imagine that the UKBA might want to apply the same "logic" to both procedures.

[Obie]

I think it may be easier for your brother to use his other nationality rather than the British one.

As i said before, i am of the view that he does not fall within the scope of McCarthy.

I also have to state that extended family members has no right to an EEA family permit under Regulation 12(2), they can only be issued an EEA family permit, if in all the circumstances, it seems appropriate to the Entry Clearance officer, subject of course to Regulation 12(3).

However, even if he fall to be refused under Regulation 12(2B), such refusal will not be justified, if it was made on the basis of the British nationality he obtained by descent.