UK-EU dual nationality (by birth) EEA route eligibility

[sadmanonatrain]

Thank you to both Simon and Richard for those posts in the other thread. I'll go into a bit more detail to see if you have any extra opinions.

Can I as a dual UK/EU national at birth, bring my wife (non-EU) to the UK? I've only lived said countries (EU-wise).

Were treaty rights exercised by you at any point?

A dual British/Irish citizen (or a dual British/EEA citizen) by birth, who has never left the UK/exercised treaty rights in another EEA member-state, is not covered by Lounes, but by the earlier McCarthy judgment and therefore cannot sponsor their spouse under the EEA Regulations.

What Lounes states is that if an EEA citizen exercises treaty rights, moves to the UK and subsequently acquires British citizenship, such a dual British/EEA citizen (who acquired British citizenship after exercising treaty rights in the UK) can continue to sponsor family members through the EEA route.

In other words, exercise of treaty rights in another EEA member-state (either in the UK by a non-UK EEA citizen OR by a UK citizen in another EEA member-state i.e. Surinder Singh) is a requirement for sponsoring family members through the EEA route.

The logic of Surinder Singh says that when a worker with nationalities of A and B moves from A to B, he should be able to take his family with him. I think the CJEU would take that view. However, if the other country is Germany and Sadmanonatrain is living there with his wife, I think the UK will have left the EU before he can get a favourable judgement from the courts. So I fear the practical answer is 'no', but it may be worth applying for a family permit on the off-chance that the HO will say 'yes'.

I think Sadmanonatrain's hijacking of this thread should be spun off to a separate thread.

I was born in Germany to a British and German parent. So I have dual citizenship at birth to both countries. When they divorced, my British parent moved 'back' to the UK with us as children. I would have been around 9 I think. Of course I had no choice here, so I doubt that is exercising treaty rights? Or is it? I don't know. I have never lived in worked in any other EU country.

Since then I've lived and worked in the UK. Though currently I'm abroad trying to return to the UK with my wife who is a non-EU national. The great irony here is my German parent has also been living in the UK for years, with a Latvian spouse, with no problems obviously. So from what I can gather, though I coud be wrong, having dual nationiality isn't any sort of benefit at all in moving back to the UK under some EU law?

Richard your comment interests me a lot, though I don't quite follow. A->B meaning Germany to the UK? That happened once when I was a kid, technically. I currently live outside the EU. So it would be C->B while excersing A's free movement rights? Excuse my naivety there.

Of course, the reason for asking is because doing the actual SS route for me would be silly if I don't need actually need to; due to having dual EU citizenship. Do you or anyone else happen to know if applying for a family permit, and getting denied, affects any future applications? Be it through UK national routes or EU?

Thanks for the time taken to have responded anyway. A very sadmanonatrain.

[Richard W]

The posts in 'the other thread' start here.

Richard your comment interests me a lot, though I don't quite follow. A->B meaning Germany to the UK? That happened once when I was a kid, technically. I currently live outside the EU. So it would be C->B while excersing A's free movement rights? Excuse my naivety there.

I got the impression you were working in Germany and your wife was with you. I think that if you moved straight to the UK from outside the EEA, McCarthy no. 1 would apply, which would leave you with no usable EEA rights. Basically, to benefit from EEA free movement to enter the UK, you have to do a Surinder Singh. The novelty was that you ought to be able to use Germany for it, despite being a German.

[secret.simon]

Can I as a dual UK/EU national at birth, bring my wife (non-EU) to the UK? I've only lived said countries (EU-wise).

Were treaty rights exercised by you at any point?

A dual British/Irish citizen (or a dual British/EEA citizen) by birth, who has never left the UK/exercised treaty rights in another EEA member-state, is not covered by Lounes, but by the earlier McCarthy judgment and therefore cannot sponsor their spouse under the EEA Regulations.

What Lounes states is that if an EEA citizen exercises treaty rights, moves to the UK and subsequently acquires British citizenship, such a dual British/EEA citizen (who acquired British citizenship after exercising treaty rights in the UK) can continue to sponsor family members through the EEA route.

In other words, exercise of treaty rights in another EEA member-state (either in the UK by a non-UK EEA citizen OR by a UK citizen in another EEA member-state i.e. Surinder Singh) is a requirement for sponsoring family members through the EEA route.

I will clarify my earlier comments. As I mentioned above, exercise of treaty rights in another EEA Member State is a requirement for bringing family members in through the EEA route. But, at least when it comes to the Surinder Singh route, that is not the only requirement.

For the Surinder Singh route to be invoked, family creation/strengthening needs to have occurred concurrently with the exercise of treaty rights in the other EEA member state. So, for instance, if a British citizen exercised treaty rights in Germany, then returned to the UK and then married a non-EEA citizen, the SS route cannot be invoked. However, if the British citizen were to exercise treaty rights in Germany AND while exercising such treaty rights, were to strengthen or create family life (by being joined in Germany by his non-EEA spouse), then such a British citizen can return to the UK with his non-EEA spouse under the EEA route (the Surinder Singh route).

Basically, to benefit from EEA free movement to enter the UK, you have to do a Surinder Singh. The novelty was that you ought to be able to use Germany for it, despite being a German.

I disagree. I believe that in order for the Surinder Singh route to be invoked, the treaty rights must be exercised in an EEA member-state of which the EEA citizen is not a citizen. So, the OP cannot exercise treaty rights in either the UK itself or Germany.

He would need to move with his non-EEA spouse to an EEA member-state other than Germany or the UK, exercise treaty rights and then move to the UK with his non-EEA spouse.

I base my opinion on judgments of the CJEU.

2. Article 21 TFEU 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,...

That would logically mean that rights derived from Article 21 (Surinder Singh, Zambrano, etc) would not apply to family members of EEA citizens who reside only in Member-States of which they were nationals, even if they move between such states.

O & S is much more complete in clarifying this.

43. In those circumstances and having regard to what is said in paragraph 36 above, Directive 2004/38 is therefore also not intended to confer a derived right of residence on third‑country nationals who are family members of a Union citizen residing in the Member State of which the latter is a national.
...
Judgment - Article 21(1) TFEU must be interpreted as meaning that where a Union citizen has created or strengthened a family life with a third‑country national during genuine residence, pursuant to and in conformity with the conditions set out in Article 7(1) and (2) and Article 16(1) and (2) of Directive 2004/38/EC in a Member State other than that of which he is a national, the provisions of that directive apply by analogy where that Union citizen returns, with the family member in question, to his Member State of origin.

Not only does O&S distinctly state that family life is created or strengthened "in a Member State other than that of which he (the EEA citizen) is a national", it also states a requirement that the genuine residence of the EEA citizen must have been in conformity with the conditions laid out in the Directive. As the Directive cannot apply to EEA citizens in an EEA Member-State of which they are nationals, it therefore follows that derivative rights would not arise if the family member and EEA citizen are residing in an EEA member-state of which the latter is a national and then move to another EEA member-state of which he is also a national.

Therefore the OP cannot invoke the SS route by moving with his non-EEA spouse to Germany and then to the UK. The exercise of treaty rights will need to be in am EEA Member-State of which he is not a national, such as the Netherlands or Ireland.

Returning to the OP's specific question about next steps, you have a few options (arranged in order of my recommendations).
a) Return to the UK as a British citizen and meet the requirements of the UK Immigration Rules (such as earning atleast £18,600 per annum) for your non-EEA souse to join you in the UK. This route is unaffected by Brexit, but is quite expensive.

b) Renounce your British citizenship, apply for a Family Permit for your non-EEA spouse as the family member of an EEA citizen and reside in the UK as an EEA citizen exercising treaty rights (you will not have PR as you had not exercised treaty rights in the UK in the past). Much cheaper, but obviously subject to Brexit negotiations.

c) Do a Surinder Singh. Exercise treaty rights in another EEA member-state (of which you are not a national) with your Chinese wife and then move to the UK. Lot of moving involved and least amount of clarity as regards continuity after Brexit.

[vinny]

See also Home Office's response regarding dual nationals?

[mgb]

I disagree. I believe that in order for the Surinder Singh route to be invoked, the treaty rights must be exercised in an EEA member-state of which the EEA citizen is not a citizen. So, the OP cannot exercise treaty rights in either the UK itself or Germany.

This is not so clear. Due to the implementation of the directive into national german law the wife of the OP could get a residence card for a family member of a eu citizen in Germany.
The germans have the opinion that the McCarthy judgement is only applicable if no borders were crossed for taking residence.

[sadmanonatrain]

Thanks for the replies. I'm familar with the SS route and already knew I couldn't rely on my German nationality for that specifically. I'm also prudent to the anecdotal evidence of people being rejected with SS (especially from Ireland) because of circumvention of UK routes. But I've heard, so long as you've met the best/most convinncing requirements (worked, rented and were married before hand) there shouldn't be a problem technically. It can even be right on the limit of 3 months as the UK's interpreatation is wrong and appeals can and should win. According to this anyway https://www.freemovement.org.uk/surinde ... ion-route/

So to finally confirm, I cannot rely on my dual nationality to get a EEA family permit. My dual nationality holds no benefits in relation to using any EU route. Only if I was GER/USA for example. To get an EEA family permit personally, I need to excercise treaty rights and the only way to do that is SS. It'll most likely be Ireland for us but there's dispute whether or not Germany can be used is there? Continuity after Brexit shouldn't be a fundemental worry so long as we (apply?) arrive in the UK via EEA FP before the supposed March 2019 date right?

https://www.gov.uk/government/publicati ... ingh-cases

Points 15 and 16 in the link above confirm what everyone here has said right?

Secret.Simon thank you for your qouted judgements and 3 point options. Renouncing British citizenship is too extreme, nonsensical and a shot in the foot imo. And the UK's immigration rules are too difficult for us, unfortunately. While I'm currently earning over the absurd limit, just, the currency fluctuations mean I wont be meeting it by the time I apply. In addition, it's impossible for me to get a job in the UK while abroad. Going back alone to secure work is something we can't do as we rely on each other.

Thanks to anyone who takes the time to reply.