I have Dual Citizenship -Wife non EU . 5 years Visa finishes ...

[chaoscontrol]

FULL JUDGEMENT PROMULGATED

wow , thanks for that Vinny ! already seen this Obie`s post somewhere in here but probably still was unsure if I can include it with my wifes PR application to Home Office . At least this will be sorted now ..

[chaoscontrol]

December 2012 to december 2017 give 5 years.
Who should hinder her to apply for permanent residence?

European Court of Justice`s decision is still not implemented in to the UK law , it is 2 months now after the Toufik Lounes case been decided ,

so there is a big risk of my Wife`s application being not successfull just because of law is still not corrected !

as:
EU citizens who become British citizens cannot rely anymore on EU law, including the right to bring family members to the UK. That is how the law stands currently in the Immigration (European Economic Area) Regulations 2016.

However, the ECJ decision on Lounes C-165/16 from November 2017 changes that. Now family members of an EU citizen who becomes British keep their rights under EU law.`

So, any update on WHEN the ECJ decision will be implemented in to the UK law ?

just a note :
It will require a relatively minor amendment of the Immigration (European Economic Area) 2016 Regulations to include dual national citizens, in order to ensure that family members of UK-EU dual nationals are treated the same as family members of EU nationals without British citizenship.

So , the question stays the same :

any update on WHEN the ECJ decision will be implemented in to the UK law ?

[mgb]

Brexit is on the horizon.
Why should someone bother to change anything before.

[chaoscontrol]

Brexit is on the horizon.
Why should someone bother to change anything before.

This is right .. only hope is that if we include print out of the `Lounes C-165/16` case , the Home Office worker will bother/care to read it and use his/her brain and not just reject an Application because 2016 regulations still not been changed (months after ECJ decision)...
if they will be not familiar with ECJ decision in `Lounes`and not give PR to my wife then we will need to appeal ,
which going to take crazy amount of time ( maybe a year or longer..) to get to the Court Listing , by this time it will be 2019 and UK will be exiting EU so the Home Office will reject my wifes Application on different basis (we are not in EU anymore so you can`t use EU route anymore to get PR)

[mgb]

I wrote it already that I think it makes no difference if she apply now or in 3 or 4 month.
There are tons of more important problems than to change the 2016 regulations.
If she has to appeal a refusal the date of the application is important and not the status at the time of the appeal decision.

[chaoscontrol]

I wrote it already that I think it makes no difference if she apply now or in 3 or 4 month.
There are tons of more important problems than to change the 2016 regulations.
If she has to appeal a refusal the date of the application is important and not the status at the time of the appeal decision.

Thank you for your answer and time , could you please explain why the date of the application is important in case she will have to appeal ? what you mean with that ? (sorry for stupid questions , I am not law educated , but every small thing is important). thanks.

[mgb]

The valid law at the day of the application is that what is counting.

[chaoscontrol]

... update ...It looks like there is no any `update` of the Home Office guidance, also can`t find any info about the EEA 2016 regulations change regarding ECJ decision in Lounes C-165/16 from November 2017 ... this is really sad ..
As `mgb` said answering to me : `nobody will bother cause brexit is on horizon`

But I still must ask :
Maybe anybody is aware here , how this ECJ decision should be normally implemented into UK law (or in this case into HO Guidance) ? Do there should be another UK High Court listing to confirm when `Lounes C-165/16` decision will take effect in the UK ?
Or maybe HO has to follow EU Court of Justice decision and act accordingly ?

Sure I will include a cover Letter with my Wifes PR application as people here advised me (Thank you all for that and for Your time too , you all been really helpful !) , but I am still hoping that there will be some kind of amendments of 2016 regulations and the Home Office worker will not just blindly follow the `book` , apply 2016 regulations and refuse her Application (on the grounds that I am Dual Citizen) ..

[Richard W]

It will require a relatively minor amendment of the Immigration (European Economic Area) 2016 Regulations to include dual national citizens, in order to ensure that family members of UK-EU dual nationals are treated the same as family members of EU nationals without British citizenship.

The Home Office may struggle for as narrow and petty a concession as possible. For example, they will probably try to exclude family members whose sponsoring dual national never required the personal exercise of treaty rights to live in the UK. An extreme example would be a Frenchman who has never been outside the UK. They might come up with the simple requirement that the sponsor have held a UK residence certificate or DCPR. I also expect that they will require that the sponsor continue to hold a non-UK EEA nationality - that would exclude any who lost their non-UK EEA nationality by becoming British.

I wouldn't rule out spiteful exclusion of former British-Irish dual nationals who renounced and then prematurely resumed British nationality, though that's legally very shaky - an Irishman loses his special non-voting rights by entering the UK from outside the Common Travel Area. Additionally, since late 2014 an Irishman now acquires his special residence rights solely because he is an EEA national or family member of one, except in the rare cases where he has previously been excluded or removed from the UK.

You ought to have given your source - which I suspect is http://www.airecentre.org/news.php/291/ ... department.

[chaoscontrol]

... update ...It looks like there is no any `update` of the Home Office guidance, also can`t find any info about the EEA 2016 regulations change regarding ECJ decision in Lounes C-165/16 from November 2017 ... this is really sad ..
As `mgb` said answering to me : `nobody will bother cause brexit is on horizon`

But I still must ask :
Maybe anybody is aware here , how this ECJ decision should be normally implemented into UK law (or in this case into HO Guidance) ? Do there should be another UK High Court listing to confirm when `Lounes C-165/16` decision will take effect in the UK ?
Or maybe HO has to follow EU Court of Justice decision and act accordingly ?

Sure I will include a cover Letter with my Wifes PR application as people here advised me (Thank you all for that and for Your time too , you all been really helpful !) , but I am still hoping that there will be some kind of amendments of 2016 regulations and the Home Office worker will not just blindly follow the `book` , apply 2016 regulations and refuse her Application (on the grounds that I am Dual Citizen) ..

been browsing through gov.uk website and found this :
https://www.gov.uk/derivative-right-residence
If the worst scenario (if even after appeal based on ECJ decision in `Lounes C-165/16`the Home Office will refuse to give Permanent residence card/Derivative residence to my wife - which I can`t imagine as its against the Law ) happens , then do she will be able to apply for `that one` ? based on the fact that we have 1 year old British child ? (He is born in UK and are British citizen.)

but in this case she would lose her 5 years of lawful life and work in UK (excercising Treaty rights) ? ..
another question is : do she will lose them even if the HO will decide positively based on `Lounes` case ?

many thanks .

[chaoscontrol]

Hello and Good morning (evening) to anyone who is reading about this Dual citizens issue and also them who been helping and advising me here (thank you again).
Just couple of New interesting things about my (Dual citizen`s) case :

I been to immigration adviser couple of days ago , and received a very strange option from the that Lady , basically she said , that :
1. `It is not matter when the government will implement `Lounes C-165/16 case` into the UK law and this is not my problem (or it sounded something like that) , because it is still up to Home Office to decide if they will approve my non EU wife`s Permanent Residence application or Refuse it .`

She also said that I need to see a Solicitor to ask him a question :
2. `Which right to live here my wife should receive in case of positive outcome : derived (or derivative , not sure) or Permanent Residence , because I am naturalised as a British citizen in 2016 , but she got her 5 years Resident card document in April 2013 (or Family permit visa in Dec 2012) , so basically She was living for around 3 years with just EU citizen and another 2 years with Dual EU/British citizen and it is unknown how the HO will decide based on all that mix .. also my wife are done 5 years of Exercising Treaty rights in this Country so normally she must get a PR card even taking in account that I am naturalised as a British citizen in 2016 and I am `Dual now..

Anyone have any ideas or advices based on that ? maybe just thoughts which could be helpful in my case ?

Thank you very much for your time and reading this .

[chaoscontrol]

little update from Immigration Solicitor :
she said :
ECJ decision in Lounes may not take effect on UK law at all !
simply because ECJ decision is based on rights derived not from the Directive (2004/38), but from Article 21 TFEU (the Treaty on the Functioning of the European Union) .
This is making not obligatory to changing the UK law .

but I see that the ECJ decision says :
`EU nationals with dual nationality were effectively to be treated as ‘beneficiaries’ under the Citizens Directive. To hold otherwise would undermine the effectiveness of Article 21 TFEU by discouraging free movement and integration into different Member States.`

So she is not right then ?

Do she is right ? somebody , experts here could help with advice please ? because if thats what she says is right then it will affect thousands of Dual citizens ..

Thanks.

[mgb]

TFEU is primary eu law and the directive is secundary eu law.
The UK is bound to primary eu law independently what UK law is saying.
At least till to the brexit.

[chaoscontrol]

TFEU is primary eu law and the directive is secundary eu law.
The UK is bound to primary eu law independently what UK law is saying.
At least till to the brexit.

Thank you for the answer and the `correction`. Do that mean UK government can`t avoid implementing CJEU decision in `Lounes` into UK law ?
It looks like the HO just ignoring CJEU rules on the moment ..

[Obie]

At a hearing I attended today, home office withdrew their decision. They accepted the Lounes decision. I refused to accept the withdrawal and asked the tribunal to proceed, for other reason. But the tribunal like all of us there was aware that Lounes was binding on it.

[Richard W]

little update from Immigration Solicitor :
she said :
ECJ decision in Lounes may not take effect on UK law at all !
simply because ECJ decision is based on rights derived not from the Directive (2004/38), but from Article 21 TFEU (the Treaty on the Functioning of the European Union) .
This is making not obligatory to changing the UK law .

The solicitor may be correct if by 'law' she meant the text of statutes and statutory instrument. However, as Obie has pointed out, the Lounes decision is already part of British law in terms of determining how the courts will respond.

[chaoscontrol]

At a hearing I attended today, home office withdrew their decision. They accepted the Lounes decision. I refused to accept the withdrawal and asked the tribunal to proceed, for other reason. But the tribunal like all of us there was aware that Lounes was binding on it.

Obie! Thank you so much for your answer ! glad to hear from you!

1. Could you please confirm , which directive/law exactly the Home Office supposed to change/modify (or already changed ?) now : is it 2016 EU regulations or something else ?

2. So Home Office had to accept ECJ decision in `Lounes` , when/how soon do you think it will be part of the UK law ?

Yours faithfully

[chaoscontrol]

little update from Immigration Solicitor :
she said :
ECJ decision in Lounes may not take effect on UK law at all !
simply because ECJ decision is based on rights derived not from the Directive (2004/38), but from Article 21 TFEU (the Treaty on the Functioning of the European Union) .
This is making not obligatory to changing the UK law .

The solicitor may be correct if by 'law' she meant the text of statutes and statutory instrument. However, as Obie has pointed out, the Lounes decision is already part of British law in terms of determining how the courts will respond.

Hello, thank you for your answer .
`in terms of determining how the courts will respond.` ok, got it , do you mean if the case will go to the court then HO will have to accept ECJ decision in `lounes` ?
for example if my wife will need to appeal on the grounds of `lounes`case ?

Thanks

[Richard W]

Yes.

One hopes the Home Office will not have to wait for an appeal before applying Lounes.

[chaoscontrol]

Yes.

One hopes the Home Office will not have to wait for an appeal before applying Lounes.

Thanks Richard and Obie for giving me a hope !

So you think there is a chance my wife`s Permanent residence application may be accepted by the Home Office based on `Lounes C-165/16` case without the need to appeal ?
Or we still must wait for any official document from HO published (like new guidance or 2016 EU regulations change) stating that UK law is changed now ?

Wife`s 5 year Resident Card visa is ending in April 2018 , so what our options are if CJEU decision in Lounes` not going to be implemented into UK law before that time ?

Thank you again for your time .

[mgb]

The decision of a case worker is not foreseeable.
If I were you I would let apply the wife now.
It makes no sense to waste time.
If she has to appeal the home office will lose anyway.

[chaoscontrol]

The decision of a case worker is not foreseeable.
If I were you I would let apply the wife now.
It makes no sense to waste time.
If she has to appeal the home office will lose anyway.

Thanks for advice mgb , maybe you know the answers to these questions too :

What chances we have if her application will be refused , do we will be given a right to appeal ? or it will be easier just to switch to applying for `Family Visa` for her (which will be based on our Child who is British citizen) or something similar ?

1. If we can do apply `differently`(based on baby) straight after refusal- then what will be her Immigration status on that time , do she will be in UK illegally (because her Resident Card expired in April 2018) and have to go back to her Country ? then I don`t understand how could she apply for `family visa`as a parent of British Child if she will need to leave the Country ?

2. If we need to appeal is it costly process , I mean we will need solicitor help ?

Thank you .

[vinny]

As you and her are not separated, any family leave under the Immigration Rules will be as a partner, not as a parent. E-ECPT.2.3. and E-LTRPT.2.3. fail.

[chaoscontrol]

As you and her are not separated, any family leave under the Immigration Rules will be as a partner, not as a parent. E-ECPT.2.3. and E-LTRPT.2.3. fail.

Thanks for pointing out that she should apply as a `partner`, what did you mean by `family leave` , did you mean time after her PR refusal (if this will happen) when she will be applying for FLR ?

[vinny]

By "leave”, I meant “leave to enter” or “leave to remain”, under the Immigration Rules.