Do dual EU-UK citizens have rights under EU law?

[vinny]

Do dual EU-UK citizens have rights under EU law?

The reference was made in March 2016 and the hearing is apparently due to take place in May 2017, according to Counsel instructed in the cases Mr Parminder Saini

Case page


Update > judgment, 9A

[Obie]

Great Vinny. Thought we had a sticky on this Lounes case, and the Transitional provision following Mccarthy.

It is very helpful and will be useful for many affected people.

Good thing is that their policy has confirmed that an EEA national who secured Citizenship after sponsoring family member will continue to be eligible to support that family member until they earned PR status.

[vinny]

Great Vinny. Thought we had a sticky on this Lounes case, and the Transitional provision following Mccarthy.

We may have had. But there was a period when there were problems with the database. Many sticky topics apparently got unstuck.

[vinny]

Case could mean EU citizens who become British citizens and keep dual nationality may be unable to bring family members to UK.

Toufik Lounes case heard. The preliminary opinion of the advocate general of the European court is due on 30 May, with the Grand Chamber’s judgment to be published in the summer.

https://www.theguardian.com/politics/20 ... are_btn_tw

[salu]

Good thing is that their policy has confirmed that an EEA national who secured Citizenship after sponsoring family member will continue to be eligible to support that family member until they earned PR status.

Whose (and which) policy are you referring to, Obie? Do you have a reference/link for this? Thanks!

[vinny]

Probably, Obie was referring to the transitional provisions:

the Transitional provision following Mccarthy.

[Obie]

I was referring to THIS POLICY DOCUMENT, that one of our moderator colleague had drawn my attention to a while back.

[marcsiga]

I was hoping that this case could help those eea family members as well who got their RC after 2013 and their sponsor become Dual National.

Do you guys think there is a hope for us as well? Or only for the people who had their RC before the McCarthy case?

[vinny]

Of course there's hope, as the case hasn't been decided yet.

[marcsiga]

Thank You Vinny, then we are just keep on waiting a praying for the positive decision. Can't wait for the 30th May.
I think I talk on behalf of many people when I say that this decision would make a very big difference to our life and would take us out of the misery.

[anic00]

"The preliminary opinion of the advocate general of the European court is due on 30 May, with the Grand Chamber’s judgment to be published in the summer." (Guardian)

Let's say the court rules in favor of allowing dual EU-UK citizens to have rights under EU law.. (hypothesis)

When will this change take effect from? Immediately after the publication? Or do we need to wait for the Home Office to amend their procedures accordingly?

Thanks

[Khaled31000]

Hey guys
My wife she is British with british passport and irish 4 years ago I applied for a EEA family member it was 2012
And they give me 5 years visa and 1 month ago I was coming from from back home me and my wife and my son so.my wife she give the immigration officer her british passport so the officer said that I'm not entitled for EEA family member so after 1 week home office send letter that they cancelled my visa can you please advise me thanks

[vinny]

Can you give exact dates of your applications and results in 2012? The transitional provisions may protect you, if the upcoming court judgment does not.

[Khaled31000]

Can you give exact dates of your applications and results in 2012? The transitional provisions may protect you, if the upcoming court judgment does not.

It was 15/9/2012 And they give me 5 years visa

[vinny]

I think the transitional provisions protects you.

[Khaled31000]

I think the transitional provisions protects you.

I don't know what is mean but I done the appeal and I'm waiting for that court date

[Khaled31000]

I think the transitional provisions protects you.

I don't know what is mean but I done the appeal and I'm waiting for that court date

Can you please explain to me what is mean thanks

[vinny]

You seem to satisfy 9(3)(b ), etc.?

[GMB]

I think the transitional provisions protects you.

I don't know what is mean but I done the appeal and I'm waiting for that court date

Can you please explain to me what is mean thanks

Vinny is referring to the Transitional Provision put in place in the UK after the ECJ's McCarthy ruling (McCarthy Transitional Provision). For you the two critical dates are:
16 July 2012 - on this date did you have a right to reside in the UK as the family member of an EEA national? It appears you did.
16 October 2012 - on this date did you either have an EEA Residence Card already, or had you applied for one? You say you either had one or had applied for one on 15 Sep 2012 (you weren't very clear) so in either case, you meet this criterion as well.

Therefore you are protected by the McCarthy Transitional Provision, and the fact your spouse became a UK citizen has no effect on you at all. The Home Office was wrong to rescind your residence card. You could apply for another one, making VERY clear in a cover letter that you fall under the McCarthy provision, and that the cancelation of your previous RC was contrary to UK law. Or you could go through the courts to seek redress, but I know nothing about that.

[pochaco]

https://www.ft.com/content/a50ef5d0-0fe ... 5af5bb7f81

ECJ advocate general issues opinion against UK on non-EU residency rights


Non-EU nationals may be given the right to reside in a member state in which an EU family member lived before the family member acquired the nationality of that country, a legal adviser to Europe’s highest court has said.

A non-binding opinion of the advocate general in the European Court of Justice argues against Britain’s application of rules in the case of an Algerian national who married a woman who had Spanish nationality before she took UK nationality.

The case, which will now go forward for a binding ruling of ECJ judges, centres on complicated EU citizenship rights that will feature heavily in the opening phase of the Brexit negotiation that begins next month.

[pochaco]

ECJ Press release:

https://curia.europa.eu/jcms/upload/doc ... 0056en.pdf

Here is the full text.

http://curia.europa.eu/juris/document/d ... cid=395324

[Khaled31000]

So it mean if you are married to british/European you have right to apply for EEA family members visa??????

[secret.simon]

So it mean if you are married to british/European you have right to apply for EEA family members visa??????

Not so fast. It was only the opinion of the Advocate-General assigned to the case. It will now be decided by the whole Court, which will give a judgment that will be passed onto the High Court in London. At that point, it becomes a part of UK law.

The opinion (which is not a judgment yet) is surprisingly nuanced for one originating from Luxembourg. It agrees with the UK government that a dual EEA/UK citizen can not rely on Directive 2004/38/EC, even by analogy, in bringing their non-EEA family members to the UK. It does find grounds for family reunion in the Treaties and therefore confers derivative right of residence on such family members. Crucially, permanent residence is a concept under the Directive, while derivative rights of residence, such as Chen and Zambrano, do not carry a right of permanent residence or to retain residence in case of divorce.

[Obie]

The opinion (which is not a judgment yet) is surprisingly nuanced for one originating from Luxembourg. It agrees with the UK government that a dual EEA/UK citizen can not rely on Directive 2004/38/EC, even by analogy, in bringing their non-EEA family members to the UK. It does find grounds for family reunion in the Treaties and therefore confers derivative right of residence on such family members. Crucially, permanent residence is a concept under the Directive, while derivative rights of residence, such as Chen and Zambrano, do not carry a right of permanent residence or to retain residence in case of divorce.

Your reading of that opinion appears at variance and antonymous to mine. It seem contrary to the opinion itself.

Yes the Advocate General imply that the directive should be read by analogy and confer right on the EU national who has naturalised to British Citizen through Article 21 of the Treaty.

It applies surinder singh in a less restrictive form to O B case 456/2012.

[pochaco]

It does find grounds for family reunion in the Treaties and therefore confers derivative right of residence on such family members. Crucially, permanent residence is a concept under the Directive, while derivative rights of residence, such as Chen and Zambrano, do not carry a right of permanent residence or to retain residence in case of divorce.

Are you saying that even if the ECJ follows the lines of the Advocate General, the non-EU spouse of a dual EU-British citizen will never acquire PR, and as a consequence never will be able to apply for British citizenship?