UK/Irish spouse Living UK. Please Help

[M999]

Hi there,

I really need make something clear and really need the help of the members.

I'm married to a UK Citizien and we were planning to go to Ireland and settle there to avoid UK laws, then come back and apply under EU law. However it was not a choice, it was a lack of choice as we like to be in UK.

But the point is, my wife granparents were Irish and we're thinking to get her Irish passport through descendant.

That would be perfect for us as she's pregnant and we both want to stay in UK.

Does anyone here know once she gets Irish passport we could apply for EEA family permit using her Irish passport even though she hasn't lived in Ireland or any other EU country?


Any help will be very appreciate. Thanks.

[Obie]

Also see EUN2.16 Can family members of dual British / Irish n]ationals qualify for an EEA family permit? and McCarthy

[M999]

Nice one Obie. Good links. Thanks.

What is not clear is how UKBA interprets it...

My wife is currently working in UK. So, Is she automatically exercising her treaty rights? Because she will only get an Irish passport later on.

Does she have to quit the job and get new one using Irish passaport???:?

She is pregnant and will be on maternity leave soon then comes back to work after our baby born (What I think qualify her as Worker).

We are going to my country then come back with our baby and I intend to make an Outside application. So If we can apply for EEA family using her current employment while she "was only" British it would be great.

Many thanks.

[ca.funke]

But the point is, my wife granparents were Irish and we're thinking to get her Irish passport through descendant...

Does she have to quit the job and get new one using Irish passaport???:?

I recommend reading >>this post<< about the difference between Nationality and Passport.

I guess (but do not know) that your wife is already Irish, but just can´t prove it so far.

You can never "get a job through a passport", you can only have a right to work based on your nationality (which most people prove by showing their passports).

So your wife won´t have to take a new job. Once she can prove that she´s Irish you can just apply under EEA-rules, end of story.

I read somewhere in this forum, that the UK-route might be faster on your way to citizenship. Investigate about this, it may be better to go the national route, even if you don´t have to.

Rgds, Christian

[M999]

Thanks Christian. I'll have a look now.

read somewhere in this forum, that the UK-route might be faster on your way to citizenship. Investigate about this, it may be better to go the national route, even if you don´t have to.

It's harder for me now as I've overstayed my tourist visa and worked illegaly.

That's why I want to make it under EU laws. But the link Obie has given to me shows that is not really clear how UKBA will treat British with dual nationality applying for spouse visa under the EU law.

Thanks.

[M999]

http://www.ukba.homeoffice.gov.uk/polic ... /#header16

EUN2.16 Can family members of dual British / Irish nationals qualify for an EEA family permit?

The intention is to amend the Regulations to reflect the terms of the McCarthy judgment, however until such time as Regulation 2 is amended, entry clearance officers/caseworkers will need to continue to treat dual British/EEA nationals as though they are EEA nationals when considering an application for documentation under the Regulations. Evidence of the EEA nationality must be provided.

I am not sure If I understood it very well as I'm not good with Legal Writings.

It says that British/EEA nationals will be treat as EEA national, is that above clear for you all?

[ca.funke]

It says that British/EEA nationals will be treat as EEA national, is that above clear for you all?

Dual citizens (EEA/British) will be treated as EEA citizens.

This means you´ll be treated acccording to 2004/38/EC.

As the spouse of an EEA citizens, the EEA citizen is required to work or be self-sufficient. This being the only requirement allows any spouse to join the EEA citizen in the UK!

Very short summary: If your wife is Irish and works in the UK, you can move to the UK!

Rgds, Christian

[EUsmileWEallsmile]

Hi there, :wink:

I really need make something clear and really need the help of the members.

I'm married to a UK Citizien and we were planning to go to Ireland and settle there to avoid UK laws, then come back and apply under EU law. However it was not a choice, it was a lack of choice as we like to be in UK.

But the point is, my wife granparents were Irish and we're thinking to get her Irish passport through descendant.

That would be perfect for us as she's pregnant and we both want to stay in UK.

Does anyone here know once she gets Irish passport we could apply for EEA family permit using her Irish passport even though she hasn't lived in Ireland or any other EU country?


Any help will be very appreciate. Thanks.

The grandparent passport might take a little longer than you might hope. Parent born in Ireland might have been easier.

[Obie]

I recommend reading >>this post<< about the difference between Nationality and Passport.

I guess (but do not know) that your wife is already Irish, but just can´t prove it so far.

You can never "get a job through a passport", you can only have a right to work based on your nationality (which most people prove by showing their passports).

So your wife won´t have to take a new job. Once she can prove that she´s Irish you can just apply under EEA-rules, end of story.

I read somewhere in this forum, that the UK-route might be faster on your way to citizenship. Investigate about this, it may be better to go the national route, even if you don´t have to.

Rgds, Christian

Christian i believe it may help if you spend some time and have a read through the McCarthy Judgement i cited above.

What the OP's wife is seeking to do fall within the scope of McCarthy Judgement.

The judgement establish that if a Union citizen born in State A and has the nationality of A, also has the nationality of State B. Then she will be unable to make use of the nationality of State B in state A, in circumstance where the union citizen has spent the whole of her life in State A and has never exercised treaty rights or lived in any other member state including state B.

The good thing is the UK has not ammended its national legislation to give effect to this restrictive judgement. You could bet that when they get round to doing this, there is a very remote possibility that OP will be able to secure residency under community law.

[EUsmileWEallsmile]

Obie, it would not take much at all for the UK to amend their regulations; it could be done very quickly if they put their mind to it. There would be no guarantee that they would not apply the new regulations to residence card or permanent residence card applications in the future. If I were the OP, I would be mindful of the judgement you gave the link to.

[M999]

Good point Obie.

If I were the OP, I would be mindful of the judgement you gave the link to.

EUsmileWEallsmile, this is what worries me as I will have to wait my wife application for passport be done, what would take almost a year.

So by the time she gets it Home Office could have ammended its national legislation. Then it could be very bad for me because my other options will be going to live in Ireland, but if I'm doing so would be better if my wife has no Irish passport as she will be excersing her treaty rights as British then we come back to UK under the EU law.

Please guys, any thoughts about it?
Many thanks.

[lolo82]

M999, I hope that if you chose to get the Irish passport it works out for your family. You may have to weigh the options (costs/time) of moving to the republic for 6 months vs waiting for a passport for a year that, unfortunately, may not secure a residency card. As I'm sure you've read in McCarthy, the UKBA may look unfavourably to a recent aquisition of an Irish passport where no previous declaration of Irish citizenship/heritage was claimed. I'm probably repeating other people and I don't mean to bring a downer to your plans. I would just be gutted if you waited to the year, only to be refused under McCarthy. (keeping in mind, that dual citizenship under the directive was still in force when McCarthy applied).

I apologise in advance if anyone feels what I wrote was out of line. As I said, I would be gutted if M999 applied and was refused under McCarthy

[M999]

lolo82, I don't think that what you wrote was out of line. Cheers for the comments, all welcome.

This is exactly what I'm doing right now, weighting the options.

I don't really want to go to Ireland as we already settled here, we have a baby on the way, jobs and etc.
However I think I will have to go for this options.

I just want to know if worth going forward with the Irish passaport application.
We are going to Brazil in few months and my baby will born there in October and we're staying in Brazil til January/February.

So, probably time won't be a problem for us. I'm planning to go ahead with the passaport applicantion then by the time we are coming back I will analise(if ukba hasn't ammended the law by there) whether I will come to UK straight or will have to go to Ireland.

Any thoughts?
Thanks people.

[lolo82]

Would any of the senior members know if, by going to brazil for a few months, m999 and his wife could apply under Singh? Then an Irish passport isn't needed, correct?

[Greenie]

Would any of the senior members know if, by going to brazil for a few months, m999 and his wife could apply under Singh? Then an Irish passport isn't needed, correct?

Since when has Brazil been in the Eea?

[Greenie]

lolo82, I don't think that what you wrote was out of line. Cheers for the comments, all welcome.

This is exactly what I'm doing right now, weighting the options.

I don't really want to go to Ireland as we already settled here, we have a baby on the way, jobs and etc.
However I think I will have to go for this options.

I just want to know if worth going forward with the Irish passaport application.
We are going to Brazil in few months and my baby will born there in October and we're staying in Brazil til January/February.

So, probably time won't be a problem for us. I'm planning to go ahead with the passaport applicantion then by the time we are coming back I will analise(if ukba hasn't ammended the law by there) whether I will come to UK straight or will have to go to Ireland.

Any thoughts?
Thanks people.

for what reason do you want to avoid applying under the immigration rules?

[Obie]

Would any of the senior members know if, by going to brazil for a few months, m999 and his wife could apply under Singh? Then an Irish passport isn't needed, correct?

I agree with the previous contributor that Brazil will not be considered an EEA state for the purpose of Regulation 9.

However if she works for a non UK- EEA country in Brazil, the caselaw indicates she may be considered to have exercised treaty rights, even though she was never resident in another memberstate.

I believe it will be best to get the Irish nationality status sorted. If she qualifies as an Irish Citizen, then apply for Irish Passport.

After Irish passport has been secured, apply Under the EEA regulations.

After Regulation 2 is ammended, you will find it hard to secure rights under the regulations, and may have to depend on UK's, ever restrictive national Immigration law.

At the moment, the UK is reluctant to change regulations due to Zambrano, they envisage a barrage of court battle due to their interpretation on Dependancy for the purpose of Zambrano, which defers from the case laws.

There is an other potential area of contention, regarding the Good friday agreement.

How would they treat a national born in N. Ireland, entitled to Irish and British nationality, but chooses Irish Passport.

Do you tell them they don't qualify as Irish for the purpose of the EEA regulations, when the Good Friday agreement gives them the right to choose whatever nationality they identify themselves with.

Then another problem will arise, as they will try and differenciate Republican and Unionist. A Republican may be allowed to try up Irish passport, and may be regarded as such.

A Unionist may be deemed as Mccarthy type scenerio and refused residency, on the basis of abuse, and the fact they have never resided in another memberstate. How do the UK deal with all these issues.

We shall see.

[MelC]

Hi there,

I really need make something clear and really need the help of the members.

I'm married to a UK Citizien and we were planning to go to Ireland and settle there to avoid UK laws, then come back and apply under EU law. However it was not a choice, it was a lack of choice as we like to be in UK.

But the point is, my wife granparents were Irish and we're thinking to get her Irish passport through descendant.

That would be perfect for us as she's pregnant and we both want to stay in UK.

Does anyone here know once she gets Irish passport we could apply for EEA family permit using her Irish passport even though she hasn't lived in Ireland or any other EU country?


Any help will be very appreciate. Thanks.

I am with Greenie, what is your reason for wanting to avoid UK immigration? i am assuimg that you do not qualify for some reason?

I thnk the Irish passport application saga is something of a none starter as the UKBA tend to view with great suspicion recent acquisition by British Citizens, and your wife would not qualify as her time in the UK is as a Brit Cit, NOT an Irish Cit, as per McCarthy.

there are always choices.

yours it would seem to be is that your wife exercises her treaty rights in an EEA state other than that of her nationality (UK) for you both to then return to the UK under Singh.

[EUsmileWEallsmile]

Would any of the senior members know if, by going to brazil for a few months, m999 and his wife could apply under Singh? Then an Irish passport isn't needed, correct?

I agree with the previous contributor that Brazil will not be considered an EEA state for the purpose of Regulation 9.

However if she works for a non UK- EEA country in Brazil, the caselaw indicates she may be considered to have exercised treaty rights, even though she was never resident in another memberstate.

I believe it will be best to get the Irish nationality status sorted. If she qualifies as an Irish Citizen, then apply for Irish Passport.

After Irish passport has been secured, apply Under the EEA regulations.

After Regulation 2 is ammended, you will find it hard to secure rights under the regulations, and may have to depend on UK's, ever restrictive national Immigration law.

At the moment, the UK is reluctant to change regulations due to Zambrano, they envisage a barrage of court battle due to their interpretation on Dependancy for the purpose of Zambrano, which defers from the case laws.

There is an other potential area of contention, regarding the Good friday agreement.

How would they treat a national born in N. Ireland, entitled to Irish and British nationality, but chooses Irish Passport.

Do you tell them they don't qualify as Irish for the purpose of the EEA regulations, when the Good Friday agreement gives them the right to choose whatever nationality they identify themselves with.

Then another problem will arise, as they will try and differenciate Republican and Unionist. A Republican may be allowed to try up Irish passport, and may be regarded as such.

A Unionist may be deemed as Mccarthy type scenerio and refused residency, on the basis of abuse, and the fact they have never resided in another memberstate. How do the UK deal with all these issues.

We shall see.

The key to the McCarthy business is exercising freedom of movement. If one never moves to another EU state then one would be open to being denied making use of the directive.

[MelC]

Would any of the senior members know if, by going to brazil for a few months, m999 and his wife could apply under Singh? Then an Irish passport isn't needed, correct?

I agree with the previous contributor that Brazil will not be considered an EEA state for the purpose of Regulation 9.

However if she works for a non UK- EEA country in Brazil, the caselaw indicates she may be considered to have exercised treaty rights, even though she was never resident in another memberstate.

I believe it will be best to get the Irish nationality status sorted. If she qualifies as an Irish Citizen, then apply for Irish Passport.

After Irish passport has been secured, apply Under the EEA regulations.

After Regulation 2 is ammended, you will find it hard to secure rights under the regulations, and may have to depend on UK's, ever restrictive national Immigration law.

At the moment, the UK is reluctant to change regulations due to Zambrano, they envisage a barrage of court battle due to their interpretation on Dependancy for the purpose of Zambrano, which defers from the case laws.

There is an other potential area of contention, regarding the Good friday agreement.

How would they treat a national born in N. Ireland, entitled to Irish and British nationality, but chooses Irish Passport.

Do you tell them they don't qualify as Irish for the purpose of the EEA regulations, when the Good Friday agreement gives them the right to choose whatever nationality they identify themselves with.

Then another problem will arise, as they will try and differenciate Republican and Unionist. A Republican may be allowed to try up Irish passport, and may be regarded as such.

A Unionist may be deemed as Mccarthy type scenerio and refused residency, on the basis of abuse, and the fact they have never resided in another memberstate. How do the UK deal with all these issues.

We shall see.

I wonder if the wording of McCarthy will come into play? in that IF Mrs McCarthy (or any other dual national for that matter) had held both passports, had NOT resided her entire life in the UK, would have had any bearing?

I realize that it is an area of great debate, and opinion, and that mine is unpopular, but the key word is MOVEMENT and where there is none, there is no exercise of treaty rights?

[EUsmileWEallsmile]

Hi there, :wink:

I really need make something clear and really need the help of the members.

I'm married to a UK Citizien and we were planning to go to Ireland and settle there to avoid UK laws, then come back and apply under EU law. However it was not a choice, it was a lack of choice as we like to be in UK.

But the point is, my wife granparents were Irish and we're thinking to get her Irish passport through descendant.

That would be perfect for us as she's pregnant and we both want to stay in UK.

Does anyone here know once she gets Irish passport we could apply for EEA family permit using her Irish passport even though she hasn't lived in Ireland or any other EU country?


Any help will be very appreciate. Thanks.

The grandparent passport might take a little longer than you might hope. Parent born in Ireland might have been easier.

Some information on Irish citizenship by decent. Summary, possible, but not automatic.

http://www.citizensinformation.ie/en/mo ... scent.html

[Obie]

I don't believe the Key is movement, as Chen, Carpenter, Rotthaman and another case to do with name change will never had succeeded.

I believe it has to do with which nationality the person is best identified by.

Mrs Mccarthy was seeking, to all intence and purpose to abuse community law. Therefore the court may be right in refusing her case.

I have no doubt in my mind that OP's case will not succeed after the regulations has been ammended. The reason i say so is because his case is in most aspect similar to McCarthy.

[MelC]

I don't believe the Key is movement, as Chen, Carpenter, Rotthaman and another case to do with name change will never had succeeded.

I believe it has to do with which nationality the person is best identified by.

Mrs Mccarthy was seeking, to all intence and purpose to abuse community law. Therefore the court may be right in refusing her case.

I have no doubt in my mind that OP's case will not succeed after the regulations has been ammended. The reason i say so is because his case is in most aspect similar to McCarthy.

I just KNEW someone would say "carpenter" ~
In Carpenter the Service moved, in chen the child was born in Ireland and moved to the UK, I am not familiar with rotthaman.

and I agree that the OP is very similar to Mccarthy, which involved NO MOVEMENT, which is why i said i think it is the key.

I would agree that in the case of bona fide dual nationals the nationality of which they are best identified may well be an interesting point, open to vast interpretation by each individual, would they simply say, I have a UK passport, have lived in the UK all my life but consider myself Irish? would that suffice? I hope not!

I would agree that the McCarthy case was intent on abusing community law, and i feel that the OP is hoping for the same?

and based on the nationality that best identifies principle, would it therefore not follow that a BC who had resided in the UK all of their life not be "best identified" as a BC?

[Obie]

I think abuse might be a wrong word to use.

Mrs McCarthy, had never exercised any of the rights envisaged in the treaty or secondary law that gives effect to it.

She sought PR on the basis of lawful residence accrued as a British National, and then claiming to be Irish national, when she has never worked in the UK.

This was clearly against the letter or spirit of the treaty or the directive.

OP's case may be different, perhaps she has worked in the UK, we never know.

In Chen case, Kathrine, never lived in the Irish Republic. She was born and stayed in Northern Ireland which is a UK territory, and never physically moved from Ireland (EIRE) to UK.

In Rottmann the court stated that in certain circumstance where someone is in their country of nationality and face the prospect of loosing their citizenship, community law is applicable to ensure the substance of their right as union citizen under Article 20 is realised.

Also of relevance is Avello.

[MelC]

I think abuse might be a wrong word to use.

Mrs McCarthy, had never exercised any of the rights envisaged in the treaty or secondary law that gives effect to it.

She sought PR on the basis of lawful residence accrued as a British National, and then claiming to be Irish national, when she has never worked in the UK.

you are quite right, she wanted to use the "lawful residence" and she didn't have an irish passport either? but her mother was Irish? soshe wanted to use the "descent" angle?

This was clearly against the letter or spirit of the treaty or the directive.

OP's case may be different, perhaps she has worked in the UK, we do not know, however if the OP's wife has worked it has been as a Brit Cit, anything that she has done has been as a Brit Cit?

the OP's case may be different.

I always think that IF at some point, the person wishing to USE their Irish nationality has never used it prior to applying for EEA rights for thier spouse then it isn't valid, i doubt the ECJ will agree in all cases though.

In Chen case, Kathrine, never lived in the Irish Republic. She was born and stayed in Northern Ireland which is a UK territory, and never physically moved from Ireland (EIRE) to UK.

but had an irish passport, and EEA rights were exercised THEN? I see the complexity, NI is part of the UK, but katherine was entitled to irish nationality too, and it was THEN that the EEA rights came in, which validates my comment above?

In Rottmann the court stated that in certain circumstance where someone is in their country of nationality and face the prospect of loosing their citizenship, community law is applicable to ensure the substance of their right as union citizen under Article 20 is realised.

I really need to read the above again, I am not sure how a national loses their citizenship, or how it would apply in this case, but bigger leaps of faith have been made by the ECJ.

Also of relevance is Avello.

Avello I am familiar with but again i need to re-read it to grasp the relevance.

as always you stretch my mind, I love your posts!