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Australians can always enter UK without a visa as non-visa national. (Can't they?).Mark AJ wrote:Hi,
I am new to this forum so please bear with me.
I am Northern Irish and hold dual Irish British nationality and my Australian wife has been living in Northern Ireland with me for 12 years with all the required permits and visa's. However, she was refused our latest renewal through the treaty rights route due to the McCarthy case and again upon appeal. We have travel arrangements for Australia in March 2016 and have recently submitted a fresh application via eea RC in early December but we don't expect to receive approval or refusal before travel.
...
My question is can my wife travel with us as a family without a current visa or permit and be allowed to return following our planned holiday in March.
...
We are really worried as the HO are continually sending threatening e mails and letters whereby we respond with details of our fresh application.
Can anyone advise us of what our rights are in the long term and again we would really appreciate advice on our pending travels.
Thanks
Mark
Did your wife live in Northern Ireland for 12 years and had Residence Permit through out this period? when did the recent Residence Card came to an end?Mark AJ wrote:Hi,
I am new to this forum so please bear with me.
I am Northern Irish and hold dual Irish British nationality and my Australian wife has been living in Northern Ireland with me for 12 years with all the required permits and visa's. However, she was refused our latest renewal through the treaty rights route due to the McCarthy case and again upon appeal. We have travel arrangements for Australia in March 2016 and have recently submitted a fresh application via eea RC in early December but we don't expect to receive approval or refusal before travel.
Note, we have two children aged two and eleven one of whom is British/Irish born and the other is Australian born.
My question is can my wife travel with us as a family without a current visa or permit and be allowed to return following our planned holiday in March. We both are and always have been in full time employment in Northern Ireland and we have been living together for in excess of twelve years. I have read that my wife is entitled to remain because we meet all criteria.
We are really worried as the HO are continually sending threatening e mails and letters whereby we respond with details of our fresh application.
Can anyone advise us of what our rights are in the long term and again we would really appreciate advice on our pending travels.
Thanks
Mark
Mark AJ wrote:Hi,
I am new to this forum so please bear with me.
I am Northern Irish and hold dual Irish British nationality and my Australian wife has been living in Northern Ireland with me for 12 years with all the required permits and visa's. However, she was refused our latest renewal through the treaty rights route due to the McCarthy case and again upon appeal. We have travel arrangements for Australia in March 2016 and have recently submitted a fresh application via eea RC in early December but we don't expect to receive approval or refusal before travel.
Note, we have two children aged two and eleven one of whom is British/Irish born and the other is Australian born.
My question is can my wife travel with us as a family without a current visa or permit and be allowed to return following our planned holiday in March. We both are and always have been in full time employment in Northern Ireland and we have been living together for in excess of twelve years. I have read that my wife is entitled to remain because we meet all criteria.
We are really worried as the HO are continually sending threatening e mails and letters whereby we respond with details of our fresh application.
Can anyone advise us of what our rights are in the long term and again we would really appreciate advice on our pending travels.
Thanks
Mark
If you were solely a British citizen, EEA law does not apply. Your relationship to the UK via your citizenship is more proximate than your relationship to the UK via EEA treaty rights as an EEA citizen (that is the broad summary of the McCarthy judgment).Mark AJ wrote:if I was a UK citizen only and we always resided in Northern Ireland has she a right under eea law, irrespective of approved visas or permits, to travel to and work in the UK.
Did you get round to checking whether a RC was ever issued to your wife, circa 2012 (or before)noajthan wrote:...
Did your wife ever have a RC back in 2012?
If so there was a transitional arrangement related to McCarthy that could help your situation.
Chaochaoclive wrote:Mark AJ wrote:Hi,
I am new to this forum so please bear with me.
I am Northern Irish and hold dual Irish British nationality and my Australian wife has been living in Northern Ireland with me for 12 years with all the required permits and visa's. However, she was refused our latest renewal through the treaty rights route due to the McCarthy case and again upon appeal. We have travel arrangements for Australia in March 2016 and have recently submitted a fresh application via eea RC in early December but we don't expect to receive approval or refusal before travel.
Note, we have two children aged two and eleven one of whom is British/Irish born and the other is Australian born.
My question is can my wife travel with us as a family without a current visa or permit and be allowed to return following our planned holiday in March. We both are and always have been in full time employment in Northern Ireland and we have been living together for in excess of twelve years. I have read that my wife is entitled to remain because we meet all criteria.
We are really worried as the HO are continually sending threatening e mails and letters whereby we respond with details of our fresh application.
Can anyone advise us of what our rights are in the long term and again we would really appreciate advice on our pending travels.
Thanks
Mark
Wouldn't your wife already be eligible to apply for Irish citizenship (as long as she meets the requirements in this link: http://www.inis.gov.ie/en/INIS/Pages/WP11000014)? It takes quite a while for the application to be approved but it's probably a good thing to get an application in.
It's not very expensive to apply ('An application fee of €175 is required for every application for a certificate of naturalization') but then you pay €950.00 if the application is accepted.
Treaty rightsMark AJ wrote:No a,
I really appreciate you taking the time to advise.
Excuse my ignorance but I take it McCarthy means that I am no longer able to avail of the eea route? Does that mean that my pending eea PR application is more than likely doomed. HO asked for proof of exercising treaty rights and I sent them this thinking they meant UK Northern Ireland HMRC proof. By me working in UK even as a UK citizen per say am I exercising treaty rights?
I look forward to your reply on my previous and this post as I am now learning something lol.
Thanks
(F represents family member & P represents sponsor).(3)
The criteria in this subparagraph are met where F—
(a) was on the 16th July 2012 a person with a right to reside in the United Kingdom under
the 2006 Regulations; and
(b) on the 16th October 2012—
(i) held a valid registration certificate or residence card issued under the 2006 Regulations;
I don't know about time-barring but I believe there is nothing to stop you re-applying with fresh evidence (as explained & suggested above).Mark AJ wrote:Nojthon
Regarding the transitional arrangement does the fact that our appeal was refused in October 2015 then time bar us from using this.
It is confusing.Mark AJ wrote:To be honest I am still slightly confused as both my suggestions above bring me back to an eea application and I thought that this wasn't the right track? Am I a qualified person under the respective applications?
1) Married in 2011 - so transitional arrangement still holds good - it is couched in terms of spouse.Mark AJ wrote:Noajthon
I really appreciate you taking the time to advise and clarify.
So I am thinking this is my plan.
1) Speak to HO and tell them that I understand that my wife has automatic PR rights and ask them what conduit of form to use to prove this or how do they recommend I apply. Do you have any suggestions of form I should use? I assume that I simply provide a covering letter detailing that that due to us having lived together for approx 13 years, me as the sponsor having always been employed, and my wife having had working rights and full time work from 2006, and having been married since 2011. Please advise of which eea form should be complete? Please note we only married in 2011 and I trust this is ok?
2) Complete an EEA FM pro for a and quote the following from the HO guidance notes on eligibility and make an application on this basis.
"Transitional arrangements
...
Regarding supporting evidence that you allude to I have everything with regards to living together and working etc.
Also note I didn't invoke the transitional arrangement nor, seemingly disappointingly, neither did my legal representatives mention this at the time as this may have helped.
Anymore comments and direction will be welcomed and explored
I will clarify on cover letter that wifey had a Residence Document under the non eea family member route and provide proof of this and all employment and living arrangements. I would provide proof of work right up to present time also for both?
Does this Lund correct or do you have any suggestions to sharpen up application or form to use?
I have attempted to play Devil's Advocate & find any flaw in the above.Mark AJ wrote:Noajthan
I am no confident in my preparations for preparing both arguments and assessing best way forward with whichever comes second sounding like a positive contingency.
My current application is pending so I will collate my information and ammunition whilst it is still cooking and at least I can remain positive with option outlined if/when it is refused.
I must thank you again for your help as you have provided me with angles, insight, and advice that I have been unable to glean in the past. Your posts have definitely been refreshing and enlightening.
Many thanks and, although it will take a while, I will hope to keep you and the forum updated on progress.
I have just read through the posts on this subject and am not surprised you are confused. However, I faced the same dilemma of being dual Irish/UK citizen,(born in England but Irish father!) with a non-EEA wife who had been in and out of the UK on an EEA Family permit under the old system. But first, about your wife's Australian Citizenship. She won't lose if she obtains another citizenship.Australia scrapped that law back in 2002, and now, like most advanced countries allows dual or even multiple citizenships and coud not care less. Here is the link to the Australian Government page that confirms. Of course, the UK and the Irish Republic also allow dual citizenship.Mark AJ wrote:Noajthan
I am no confident in my preparations for preparing both arguments and assessing best way forward with whichever comes second sounding like a positive contingency.
My current application is pending so I will collate my information and ammunition whilst it is still cooking and at least I can remain positive with option outlined if/when it is refused.
I must thank you again for your help as you have provided me with angles, insight, and advice that I have been unable to glean in the past. Your posts have definitely been refreshing and enlightening.
Many thanks and, although it will take a while, I will hope to keep you and the forum updated on progress.
That would be deliberate misrepresentation by concealment of your British citizenship and any visa granted on such deliberate misrepresentation is liable to be cancelled or declared null and void.Mark AJ wrote:If I landed to British consulate or wherever in Australia with Irish passport and proofs etc, even without renouncing British citizenship, I reckon there maybe a fair chance that I would get a family permit but as I say I plan to show my COA as my primary currency for the application.
Thanks Simon.secret.simon wrote:That would be deliberate misrepresentation by concealment of your British citizenship and any visa granted on such deliberate misrepresentation is liable to be cancelled or declared null and void.Mark AJ wrote:If I landed to British consulate or wherever in Australia with Irish passport and proofs etc, even without renouncing British citizenship, I reckon there maybe a fair chance that I would get a family permit but as I say I plan to show my COA as my primary currency for the application.
You can see more examples of renouncing British citizenship to exercise EEA treaty rights in this thread.