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

[silverman123]

Hi @kim999
Good to hear from you mate!
I have seen the HO response about people who covered by TA. 2012
But still the home office gives people the easiest answer they have.
Let me give you an example.
Few days ago someone in this forum already received his Residence Card under dual nationality.
And maybe lounes him self who knows!
Those people when they will apply for their permanent residence card they should face the same problem of The TA ONCE AGAIN IN FUTURE.
Which it doesn't make any sense because the judgement has ended this.
People who already exercised their treaty rights in UK they can naturalised without fair on their family member.
They should change all these restrictions once again.
Macarthy will still apply but only for those who never exercised their treaty rights.
And thanks for your updates guys.
Happy to see all of us gathering once again.

[silverman123]

Sorry i posted twice as i wrote something wrong.
Instead of without fair on their family member i wrote with fair.
So i mean people who exercised their treaty rights they can naturalised without fair on their non eu family member.

[kam999]

Hi Silverman,

I get your point that ECJ shut the chapter with clarification that if the spouse has exercised treaty rights the TCN can apply and we can infer from it that we can apply by analogy as well, the thing is HO delay is very suspicious. Anyway, they said expect the implementation by the mid of this year so let's just wait by the end of June prior to start writing HO once again. In the meanwhile, everyone keep posted.

[ariskar]

@ariskar
It happens once in this forum with someone called Ron121.
They refused his application for permanent residence then Ron121 appeal against home office descition.
Then Home Office withdrawal their decision once again and reconsider his application and they issued him his permanent residence.
Home office does not want to court any more for similar cases like lounes as they will lose it and they will lose their man power Coast as well.
Therefore i thinks they put us all on hold until they implement in uk law.

I understand. Thank you for the precedent reference. Anyhow ,HO should still respect the 6 month service standard time-frame, or provide a reasonable answer in writing on why they would extend that service framework, which should be specific to the case facing significant difficulties to make a decision due to lack of evidence, conflicting information, etc.

[ariskar]

... After Lounes ruling, if one claims only their non-UK EEA nationality, it should not account into concealment of material fact, as it becomes irrelevant to treaty law entitlements and bestowing a status to be certified. If the applicant doesn't mention that the "qualifying EEA family member" is also British in the application, I wonder about the competence of the HO consistently "finding out" if that EEA national is also British citizen, especially when a junior caseworker is involved... For sure after Lounes ruling this cannot count anymore as deception or concealment of material facts, as BC becomes non-material fact for the assessment of the application... Thoughts?

To be clear, I am not endorsing or encouraging fraudulent/deceptive or misleading applications by any means.

[silverman123]

@malik_01
This was for you man.
Quick update from
EUROPEAN COURT OF JUSTICE


Dear Mr......

Thank you for your email which was recently received by the Press and Information Unit at the Court of Justice of the European Union.

I am not clear from your email which documents you are requesting access to, but we do not contain any documents from the UK Home Office. You would need to contact the Home Office in order to access documents held by that department.

The Court of Justice cannot request any update from the Home Office regarding UK action taken following the judgment in case C-165/16 Lounes. The Court of Justice's judgment in that case, as with all judgments following a request by a national court for a preliminary ruling on the interpretation of EU law, is binding on the national courts of the EU. The High Court of Justice of England and Wales referred the questions to the Court of Justice and it is that court which will now provide a final judgment in the substantive case. The Court of Justice has no information regarding the outcome of the substantive case before the High Court.

The European Commission is the institution responsible for monitoring compliance with EU law in the Member States. If you consider that a Member State has failed to fulfil its obligations under EU law, or its law or practices are not in compliance with EU law, you could complain to the Commission. The Commission will examine the complaint and, if it considers that it is well-founded, could bring proceedings against the Member State.

More information about how to complain to the Commission, can be found athttp://ec.europa.eu/atwork/applying-eu-l...and a complaints form, can be found at:https://ec.europa.eu/assets/sg/report-a-... . I would stress however, that the Commission has complete discretion as to whether it decides to take action in the matter.

I would suggest that you seek legal advice in the UK if you have concerns regarding your immigration status.

I trust this information is of use.

[kam999]

... After Lounes ruling, if one claims only their non-UK EEA nationality, it should not account into concealment of material fact, as it becomes irrelevant to treaty law entitlements and bestowing a status to be certified. If the applicant doesn't mention that the "qualifying EEA family member" is also British in the application, I wonder about the competence of the HO consistently "finding out" if that EEA national is also British citizen, especially when a junior caseworker is involved... For sure after Lounes ruling this cannot count anymore as deception or concealment of material facts, as BC becomes non-material fact for the assessment of the application... Thoughts?

To be clear, I am not endorsing or encouraging fraudulent/deceptive or misleading applications by any means.

Provided HO implement the ruling, futher please be advised TCN are classified in different categories and the case in question ruling serves derivative right holders. The question remains, to what extend HO will be binding on the ECJ judgement.

[Navaro2]

We sent application for my wife's PR on 28 th of May. However we did mention about Lounes in supporting letter added to application and Lounes judgement copy attached as well.
How long guys did you wait for first letter confirming they received and started processing it.????
We sent by special delivery guaranteed and it was delivered with signing already. I am asking out of curiosity about when someone received the first one from the date you sent.


Regards

Wal

[kam999]

We sent application for my wife's PR on 28 th of May. However we did mention about Lounes in supporting letter added to application and Lounes judgement copy attached as well.
How long guys did you wait for first letter confirming they received and started processing it.????
We sent by special delivery guaranteed and it was delivered with signing already. I am asking out of curiosity about when someone received the first one from the date you sent.


Regards

Wal

After 2 weeks (payment, biometric all done) I received an email saying: Your application has been received and is being considered. That is all I had and now waiting for the decision.

[silverman123]

I sent my application almost 3 weeks ago my solicitor haven't heard anything yet not even the biometric.

[Malik_01]

@malik_01
This was for you man.
Quick update from
EUROPEAN COURT OF JUSTICE


Dear Mr......

Thank you for your email which was recently received by the Press and Information Unit at the Court of Justice of the European Union.

I am not clear from your email which documents you are requesting access to, but we do not contain any documents from the UK Home Office. You would need to contact the Home Office in order to access documents held by that department.

The Court of Justice cannot request any update from the Home Office regarding UK action taken following the judgment in case C-165/16 Lounes. The Court of Justice's judgment in that case, as with all judgments following a request by a national court for a preliminary ruling on the interpretation of EU law, is binding on the national courts of the EU. The High Court of Justice of England and Wales referred the questions to the Court of Justice and it is that court which will now provide a final judgment in the substantive case. The Court of Justice has no information regarding the outcome of the substantive case before the High Court.

The European Commission is the institution responsible for monitoring compliance with EU law in the Member States. If you consider that a Member State has failed to fulfil its obligations under EU law, or its law or practices are not in compliance with EU law, you could complain to the Commission. The Commission will examine the complaint and, if it considers that it is well-founded, could bring proceedings against the Member State.

More information about how to complain to the Commission, can be found athttp://ec.europa.eu/atwork/applying-eu-l...and a complaints form, can be found at:https://ec.europa.eu/assets/sg/report-a-... . I would stress however, that the Commission has complete discretion as to whether it decides to take action in the matter.

I would suggest that you seek legal advice in the UK if you have concerns regarding your immigration status.

I trust this information is of use.

How is this related to me? @silverman123

[silverman123]

@malik01
Sorry i though you asked the European Court of justice. i got confused that's all.

[Navaro2]

I see. Well this morning my wife found email confirmation from Home office on her mail box that they received it and then They also sent her the letter to do biometric enrolment this morning.
However it took 7 days.

[naturallyoccurring]

Just to let everyone know, I'm a non-EEA partner of a dual UK/EEA citizen and I had my EEA(PR) application approved last week and just received my Permanent Residence card in the mail. I submitted the application late-February 2018 and submitted biometrics in mid-March 2018.

The following is an edited extract from the cover letter I attached to my application regrading the Lounes decision, though your mileage may vary and this should not to be relied upon or considered legal advice . Please bear in mind this is only an extract, and that on top of providing all the evidence required under the Home Office EEA(PR) guidelines, I also made a number of annotations on the application itself, setting out the basis of my rights in accordance with Lounes. For obvious reasons I am not including any of that information, or the full unedited letter. You should seek independent legal advice for your own application(s) where necessary.

I am writing this cover letter as the current EEA(PR) form does not reflect the recent Toufik Lounes v Secretary of State for the Home Department decision handed down by the Court of Justice of the European Union (hereafter ‘CJEU’) on 14 November 2017.

I married my partner (who was and still is an EEA citizen) on 20## following which I resided and worked in the UK via their exercise of treaty rights. I applied for a Residence Card under the EEA2 form which was issued on 20##. In 20## my partner naturalised as a British citizen while also retaining their EEA citizenship. The CJEU recently ruled on the question of dual-EU/UK citizens and held that a non-EU national is able to benefit from a right of residence in the member state where his EU citizen family member resided before acquiring its nationality in addition to her original nationality. The conditions governing the grant of the said right of residence must not be stricter than those set out in the Citizens’ Directive (2004/38/EC). Accordingly I am applying for permanent residence on the basis of the exercise of treaty rights in relation to my residence in the UK since 20##.

As the Home Office have not updated their EEA(PR) application forms to account for the CJEU’s recent Lounes decision, I have prepared this cover letter and made notations on the application in order to emphasise my right to apply on that basis. The CJEU’s Lounes decision was well-publicised and I have included the CJEU official Press Release as well as an article from the newspaper summarising the decision.

Obie, or other mods, please let me know if this should be edited or removed - I'm just putting this up as it worked for me, though as I said there is no guarantee it will work for anyone else.

Best of luck to you all - I hope my situation provides you with some comfort as I know how awful and stressful it is having such uncertainty hanging over you. I spent more time than I care to admit lurking and hitting refresh on this forum thread.

[kam999]

Just to let everyone know, I'm a non-EEA partner of a dual UK/EEA citizen and I had my EEA(PR) application approved last week and just received my Permanent Residence card in the mail. I submitted the application late-February 2018 and submitted biometrics in mid-March 2018.

The following is an edited extract from the cover letter I attached to my application regrading the Lounes decision, though your mileage may vary and this should not to be relied upon or considered legal advice . Please bear in mind this is only an extract, and that on top of providing all the evidence required under the Home Office EEA(PR) guidelines, I also made a number of annotations on the application itself, setting out the basis of my rights in accordance with Lounes. For obvious reasons I am not including any of that information, or the full unedited letter. You should seek independent legal advice for your own application(s) where necessary.

I am writing this cover letter as the current EEA(PR) form does not reflect the recent Toufik Lounes v Secretary of State for the Home Department decision handed down by the Court of Justice of the European Union (hereafter ‘CJEU’) on 14 November 2017.

I married my partner (who was and still is an EEA citizen) on 20## following which I resided and worked in the UK via their exercise of treaty rights. I applied for a Residence Card under the EEA2 form which was issued on 20##. In 20## my partner naturalised as a British citizen while also retaining their EEA citizenship. The CJEU recently ruled on the question of dual-EU/UK citizens and held that a non-EU national is able to benefit from a right of residence in the member state where his EU citizen family member resided before acquiring its nationality in addition to her original nationality. The conditions governing the grant of the said right of residence must not be stricter than those set out in the Citizens’ Directive (2004/38/EC). Accordingly I am applying for permanent residence on the basis of the exercise of treaty rights in relation to my residence in the UK since 20##.

As the Home Office have not updated their EEA(PR) application forms to account for the CJEU’s recent Lounes decision, I have prepared this cover letter and made notations on the application in order to emphasise my right to apply on that basis. The CJEU’s Lounes decision was well-publicised and I have included the CJEU official Press Release as well as an article from the newspaper summarising the decision.

Obie, or other mods, please let me know if this should be edited or removed - I'm just putting this up as it worked for me, though as I said there is no guarantee it will work for anyone else.

Best of luck to you all - I hope my situation provides you with some comfort as I know how awful and stressful it is having such uncertainty hanging over you. I spent more time than I care to admit lurking and hitting refresh on this forum thread.

Naturallyoccuring,
This is an awesome news, thanks a lot for sharing such thing. However, i didn't submit lounes decision but i got the idea what to do if things don't work out in my favour. Thanks again mate, congratulations and well done.

[reynaldogr]

Hi Naturallyoccuring,

first of all, many thanks for sharing your story with us. This is actually excellent news.
May i ask,when did your partner acquire his/her BC? Just wanted to know if he falls or not under the Transitional Arrangements.
Also, did the HO advise if you could apply for your BC right away without having to wait 1 year having the PR status?

Many thanks again

Br

[silverman123]

@ Naturallyoccuring
Thanks a lot for sharing your story with us.
When did you get married?
And when did you apply for you first residence card?
And when your wife naturalised (became a British citizen)?
Many thanks in advance

[Unluckyeea2]

Hi everyone !
Thank you for updates .
@ Naturallyoccuring please coul you update about roughly dates only months and years of you married to EEA national ,applied for Family permit or Residence card and your partner natralised as B.C. We are confused that they approved you PR under TA for dual nationals or Lounes judgement ? Thank You .

[Branok]

https://www.whatdotheyknow.com/request/ ... ng-1173816

Some interesting insights in the answer

[eubritish]

Well there is nothing new really. The same nonsense they have been saying for months.

It has been 7 months since the decision and still their 'consideration' goes on.

In the meanwhile, our lives are on hold.

[salu]

Hello,
Thanks for the update on the FoI, Branok, however,
I have to agree with eubritish, or at least I am not seeing any new insight from their reply.

I have a minor, probably unrelevant update: I requested my passport back, and received it exactly 10 days after. For my sanity, I am telling myself that this is a good sign. If they were to think I dont have the right to be here, they would not have sent it back.
But I guess we already know that, since last November...

Despite that, as eubritish says, our lives are on hold.
I have my passport back with an expired vignette. Does anyone know what happens if I travel with this and the CoA letter, would I be allowed back in? Because of my nationality, I don't need a visa to visit the country, but of course I need one to stay here for more than 6 months and work. Does anyone know?

I'll keep you posted if I hear anything else.

One last thing:
@naturallyoccuring: Thank you for sharing your story. Can you please reply to the questions above by several other contributors? This would be very helpful to everyone here.

Thanks!

[silverman123]

@Branok
Many thanks for this link and hopefully they will implement lounes soon or at least release and policy to caseworker to handle our case which on hold until they implement lounes.
However eubritish is right by saying our lives on holding-hands because this is our future.
@salu if your residence card expires you rather stay in uk and don't take the risk as we have enough troubles already wait until you receive your permanent residence.
This is my opinion to you.
Still take other opinions.
Also i have questions
I have my wife on maternity leave at the moment started in January but 2018.
And she is receiving maternity leave pay for 9 months only then she will go back to work
Is that can effect on my application decision somehow?
Or should be fine
anyone knows??

[kam999]

Hi All,

Branok - Thank you for sharing the HO reply.
I don't wanna be pessimist, however, it really bugs me that what do they mean by saying that they will let us know at appropriate time? 9 months left in divorce/Brexit and a year ago Lounes decision has been taken... Does anyone know on previous Case Law affecting EEA regulations, how long it took the judgement to be implemented?

Salu - You just requested your passport back and did not withdraw your application right? reason I am asking my spouse has lost her EU id and she needs her passport back for travelling, can i request just her passport to be returned, there won't be any impact on my application by doing so?

Silverman - as long as you added her recent P60 and (or ideally) her recent payslip with your application, I think it should not be an issue as she is going back to work after 9 months. But please rely on a more experienced/law educated users reply as I an searching for answers myself.

[Unluckyeea2]

Hi everyone ,
Thanks for updates , main worrying thing is Brexit on the corner and Lounes Judgement is still not implemented . Sometime I think they are just waiting for Brexit and there is nothing mentioned about Dual nationals rights in Brexit Withrwal Agreement so what will happen to non EU family members ? Lounes Barrister mentioned in his tweeter account that EEA Regulation will be ammended through Parliament but still no news of it since April . If all of us affected Dual nationals go to own MPs and there could be hundred Mps rasing issue and then Parliament would ask Ho to implement Lounes Judgement of Ecj and High Court .We came to know that people who were denied there rights were given rights through pressusre of media , pettion and intervention from MPs , lawyers and courts . Dear members please keep posting updates .
@ Salu your case is oldest and we all wating good news from you and about your travelling plan please wait advice from senior Moderators , gurus they know more or consult EEA Law experts .
@Naturallyoccuring please if you arereading the post we are waiting some details from your experince pleae share it . Thanks to all .

[Branok]

I thought it was interesting to see why their reasoning for why they haven't released the caseworker notes yet.

I'm an optimist and think you will all receive your PR cards long before they release the notes.

I think that what they are really discussing is how to handle the fact that over several years they have denied people their rights. I bet there are a lot of people who has lost their jobs, been kicked out of the country, been forced into expensive UK routes instead (if they qualified) or had their families split who are now just waiting for justice. How will they formulate the policy in a way so they don't have to take responsibility for it or make the government look bad? I think they care more about that then trying to stop people form getting PR.