mgb wrote:noajthan wrote:
McCarthy was a ruling that centred on the dual nationality (including an EU nationality - Irish) of a citizen with a non-EEA spouse.
You cannot refer to McCarthy.
One of the main statements there was "is not applicable to a Union citizen who has never exercised his right of free movement".
A holder of a PR right obviously excercised his right of free movement.
Agreed McCarthy was a case that was very limited in scope, the judge's remarks on the case reflected that.
The claimant/appellant lost her case.
However it turned into a sad day in the annals of EU regulations.
The regulations themselves do now refer to McCarthy
in the context of dual nationals.
The regulations do not limit themselves to persons who are economically-inactive (as the appellant was said to be) nor to persons who never exercised free movement/treaty rights.
HMG appear to have ignored the judge's remarks (made at time of McCarthy ruling) & incorporated the outcome of the McCarthy case into revised and restrictive EU regulations.
This is clear in versions published on Gov UK as recently as this year:
https://www.gov.uk/government/uploads/s ... s_v2_0.pdf
& as per post from Vinny, ref:
british-citizenship/british-citizenship ... l#p1236091
EEA national” means a national of an EEA State who is not also a British citizen
The impact of McCarthy case is conveyed quite clearly here:
http://www.migrantsrights.org.uk/migrat ... tions-2006
The new Regulations do take an expansive approach to the Court of Justice case law to restrict the rights of people to reside in the UK. For example, family members of dual British/EEA can no longer enjoy residence rights under the Regulations (unless the British/EEA national has lived in another EEA State) and must rely instead on the increasingly restrictive Immigration Rules.
There is a transition period that will last until 16 October 2012 for family members of dual British/EEA nationals to secure their status. This is important not only for the non-EEA family members of British/EEA nationals, but also for the EEA national family members of dual British/EEA nationals.
So it's all about dual nationals. The transitional arrangements gave dual nationals in UK about 3 months to apply for a RC (if they didn't have one already). This was a window to secure the then (in 2012) receding rights to sponsor family members in the UK.
The arrangement in the regulations clearly states "dual national", it doesn't simply say something like "EEA sponsor (whether single or dual-national)".
The impact of changes brought in the 2012 regulations are explained further here;
http://www.mcgillandco.co.uk/Blog/2012/ ... egulations
So the 2012 regulations finally seek to bring the decision in McCarthy into domestic law. At least that is what is stated in the Explanatory Note to the amendments.
The amendment itself notes that an EEA national will now be defined as a national of an EEA state ‘who is not also a United Kingdom national’. Whilst the rest of the regulations come into force on 16th July 2012, this amendment only is held back until 16th October 2012.
Further issues arise in circumstances where a long term UK resident with EEA nationality seeks to acquire UK citizenship. Doing so would likely then impose the far stricter Immigration Rules regime (and in particular the dreaded Appendix FM) in relation to any applications they might make to UKBA for their non-EEA family members. This might be avoided by reliance on regulation 9, ... but its far from clear how that would work in practice
Is there now case law that has clarified the position for dual nationals (British/EEA)
I have heard of Surinder Singh but that seems to apply to single-national Britons who take advantage of the Europe route as 'proxy EEA nationals' to use free movement rights to sponsor their family members.
There are plenty of EEA family member postings in this forum.
However the majority of those cases (that I could find) depend on the sponsor's PR; the sponsor may then naturalise as a UK citizen afterwards (once the family member's settled status is secured).
There are not many examples to be found where the sponsor of a non-EEA national naturalises mid-way through the 5 years period for acquiring PR.
It will be interesting to see how the OP's case runs its course.