returning to nationality country

[rachel29]

Hi,

Hoping for some advice here or maybe some one who has gone through the same thing. I am living in Ireland as self sufficent with my husband on 5 years resident as eu family membesing . I have been advices by your europe advice that I should be able to apply to return to the uk under directive 2004/38/EC even though I am self sufficent this should be seen as excercising my rights.

Has any one applied under the same conditions or heard of some one who has?

What documents will I need to supply to show this?

What do you think are the chance of this being granted or you think will hve to put up a fight?

[rachel29]

Thank you for your enquiry to the Your Europe Advice service.
If you decide to take up residence in the UK, your husband should be entitled to work based first on his relationship with you. Since you have lived and been self sufficient in Ireland for the past five years, you are regarded as exercising EU Treaty rights on your return to the UK. Therefore, you are entitled to have your husband live with you and work in the UK pursuant to Directive 2004/38/EC. Your husband’s right of residence and right to work are based on you.
Rather than rely on your daughter, your husband should rely on you to assert his rights. This is the most straightforward approach to take in applying for an EEA Family Permit from the British authorities. Based on this, the EEA Family permit should be granted to your husband without charge or formality or delay.
In relation to the law concerning your child’s dual nationality, this issue was decided upon by the Court of Justice of the EU in the McCarthy case, C-434/09. Here the Court of Justice decided that dual nationals living in a country of their nationality who have never exercised free movement rights cannot rely on the Citizens’ Directive (2004/38) or on Article 21 TFEU. However, since your daughter has lived in Ireland for the seven months of her life and now seeks to go to the UK, the McCarthy case would not apply to her as she also is exercising EU Treaty rights unlike in the McCarthy case where the complainant had not exercised any Treaty rights.
If you encounter any problems in obtaining the EEA Family permit, you can refer the matter to SOLVIT which is an EU network established to resolve problems caused by misapplication of EU law by public administrations. The website address for SOLVIT upon which you will find details for the Irish SOLVIT representatives is www.ec.europa.eu/solvit/
I trust that this information is of assistance to you.
Yours sincerely,
Your Europe Advice

[rachel29]

ok I have only been resident in ireland for a year so re sent this back to your europe advice to clarify if the lenght of time had affect and recieved the following repply:
Thank you for reverting to the Your Europe Advice service.
Even though you have only been resident in Ireland for one year, your husband is still entitled to apply for an EEA Family Permit from the British authorities based on the fact that you are exercising EU Treaty rights by returning to the UK from Ireland.
In relation to rulings of the Courts where a self-sufficient citizen can demonstrate that they have a right to be treated as exercising EU Treaty rights even though they were not working in the country of residence, this point has not, to the best of my knowledge been examined by the Court of Justice of the EU. The reason for this is that the legislation is very clear that residence in another Member State is relevant and it is not relevant for the purpose of relying on Directive 2004/38 whether you were working or not in that other Member State. This is set out in Article 3 of Directive 2004/38/EC which states as follows:
This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

From this, you can see that residence is important rather than work. If the UK Border Agency insists that you should be able to demonstrate that you have been working in Ireland rather than accepting the fact of your residence as demonstrated by a lease agreement and utility bills, then you should refer the matter to SOLVIT in Ireland as the refusal to accept your residence in Ireland for one year to support your husband’s application for an EEA Family Permit in the UK when you plan to return there as a family, would be in breach of EU law.

I trust that this clarifies the matter for you.