noajthan wrote:Rolande wrote:One final clarification please - he obtained citizenship in December 2014. Is that an issue as at the time I obtained PR (July 2015) he was already a British citizen. Does his status at the time I acquire PR go against me in this situation?
No it does not (or, should not), because you are covered by the
McCarthy ta. That is the point of emphasising it in your supporting letter to back your application.
However, it may cause a problem. The literal reading of the regulation says that you are covered. However, there are two arguments against that interpretation and the Home office guidance above does not support that interpretation:
- There is no evidence that the regulation was intended to cover your situation. That would be very relevant to interpreting an Act of Parliament; I don't know how much that principle applies to Statutory Instruments, as they are hardly ever challenged in Parliament.
- As was written on this board two weeks ago, 5 June 2016:
Obie wrote:By definition a transitional provision cannot apply to prospective event. It applies to a state of affair in place before new rules were put in place.
- The Home Office's legal guidance on the matter (cited earlier in the thread) will suggest to the case worker that you are not covered:
This means a British citizen who also holds the nationality of another EEA member state
cannot sponsor a family member under the regulations, except where they meet the conditions set out in regulation 9 (Surinder Singh cases).
...
Transitional arrangements were put in place for people who had already relied on a dual British or
EEA national for a right of residence before 16 July 2012.
You can find details of these transitional arrangements in schedule 3 of the Immigration (European Economic Area) (Amendment) Regulations 2012.
There is thus a significant risk of your application having to go to appeal.
The question as to the applicability of the transitional arrangements might be rendered irrelevant by the
Toufik Lounes case; the argument will be that as the husband moved to the UK from abroad (did he?) before he became British, he should remain an 'EEA national' under the regulations as long as he is in fact a citizen of another EEA country. I am presuming that the ex-husband is still a dual national.
However, should we be so certain that the retained right of residence route is closed? I can't find any provision that says that retained rights are only retained if applied for. The timeline as we have it is:
Arrived UK: 2008
Married: July 2010 (We're assuming husband was a permanent resident or else exercising treaty rights then and at all relevant times afterwards)
RC issued: June 2011
Divorce initiated (papers served): (date not reported yet)
Husband naturalised: December 2014
Divorce finalised (decree absolute): September 2015
My understanding is that for the retention of rights, the 'termination of marriage' may be taken from when divorce proceedings were initiated. (There is a serious risk that this is just a widespread erroneous view - see below.) If the divorce was initiated before the husband naturalised in December 2014, then rights will have been retained regardless of what the husband did thereafter.
The best evidence for the relevant date being the date of the commencement of divorce proceedings that I can find comes from Paragraph 61 of
Kuldip Singh and Others v. Minister for Justice and Equality (reference number ECLI:EU:C
476) in the European Court of Justice.
The reference in that provision to, first, ‘the host Member State’, which is defined in Article 2(3) of Directive 2004/38 only by reference to the exercise of the Union citizen’s right of free movement and residence, and, secondly, ‘initiation of the divorce … proceedings’ necessarily implies that the right of residence of the Union citizen’s spouse who is a third-country national can be retained on the basis of Article 13(2)(a) of Directive 2004/38 only if the Member State in which that national resides is the ‘host Member State’ within the meaning of Article 2(3) of Directive 2004/38 on the date of commencement of the divorce proceedings.
I do note the use of the words
only if, so this part of the judgement may not help. Kuldip Singh and others lost because their wives had left Ireland and divorced them from outside Ireland.
I thought I'd seen a British judgement that supported this view, but I may have imagined it. The judgements my searching today turned up all assumed that the date of decree absolute was the relevant date.
It would be advisable to seek out an appropriate professional representative, suitably qualified and experienced in this area of EU migration law.
Keep scans/copies of all documents/RC, application form plus letter submitted to HO - for your reference and in case of any dispute.
476) in the European Court of Justice.