New EEA Regulations 2012 - implications for dual British/EU

[Szmek]

This is a new thread I'm starting from a different one. Starting with a few quotes from the last few posts:

Directive/2004/38/EC -> I just read the link at the bottom of your post - I am in this position - I am a dual national - British and Polish... Am I right in saying that they just implemented this new law that the family members of dual national EU/British cannot benefit from the EU-free movement?

My wife exercised her right as the family member for a Polish national to come to the UK. She disclosed that I am also a British citizen, but this had no effect on our EEA Family Permit (it has already been granted)

But does this change our situation as far as applying for a Residence Card?

Directive/2004/38/EC

Lets not hijack this thread. But...

I actually think what they are doing is pretty dubious. So can be challenged!

Do not worry about it. Were you working in Poland?

Szmek

No - I was studying so I don't fall into the Surrinder-Singh case (British citizen working in a EU country then relocating back to the UK).

I'm just reading the UKBA now and they haven't made any guidance yet nor have they amended the EEA2 Residence Card application form.

Whole thing has me sweating a little...

Directive/2004/38/EC

Do not worry my friend. But do two things: use only your Polish passport for travel/work/bank accounts and get a job (even part time).

Szmek

Haha... Thanks for trying to calm me down, but I expect a lot of head scratching in the forseable future...

Regarding what you said: I've got a job lined up already, 2-year contract, start next Monday actually - but as far as using the Polish passport - its too late - I've had a bank account here for years, National Insurance etc. all under my British passport!!!

Her EEA Family Permit is valid until sometime in December (I know from law that these decisions can't be applied backwards - I think - so they cant revoke it) but we were planning on applying for the Residence Card soon (within the next month).

I wonder how the UKBA/HomeOffice will deal with these applications - you have any ideas? I mean she is in the country already

Directive/2004/38/EC

I suggest you prove your right to work using your Polish passport! Head scratching is encouraged: worry is not.

Jambo

I don't see a problem using the UK passport as the old rules apply to you.

See schedule 3 for the transitional arrangements. See point (4). As the FP was applied before 16th July and she entered within the 6 months, you are under the old rules.

Szmek

"Prove my right of work' - to who? Employer or UKBA? (Employer already knows I'm British)

I just flicked through the EEA2 application and it asks 'Does the EEA National also have British citizenship?' - but thats the 'old' EEA2 (the new hasnt been issued)

I'm just reading [http://www.legislation.gov.uk/uksi/2012/1547/made] and in Schedule 3 - Transitional Provisions it kind of outlines the rules for those who have been 'trapped' in between the 'old' and 'new' rules. E.g. If someone received/applied for/been refused and appealed the Residence Card before 16th July 2012 then they are protected by the EEA Regulations 2006.

It later describes those with an EEA Family Permit but to me it doesnt make sense - maybe you can help:

Quote:
Where met, the criteria in subparagraph (2), (3) and (4) remain satisfied until the occurrence of the earliest of the following events—

(a)the date six months after an EEA family permit has been issued if F(family member) has not within that period been admitted to the United Kingdom;


Surely it should say if the family member has within that period been admitted to the UK.

Szmek

Sorry - actually I just read that the commencement of the exclusion of British nationals will be enforced from 16th October 2012.

Quote:
Commencement

2.—(1) Subject to paragraph (2) these Regulations will come into force on 16th July 2012.

(2) Paragraph 1(d) of Schedule 1 to these Regulations will come into force on 16th October 2012.

---------------
ref:
(1) (d) in the definition of “EEA national” after “a national of an EEA State” insert “who is not also a United Kingdom national”


So basically any dual British/EU nationals have until then to use the EEA freedom of movement EEA regulations to bring their non-EU families back to UK (???)

[Directive/2004/38/EC]

"Prove my right of work' - to who? Employer or UKBA? (Employer already knows I'm British)

You normally have to give your employer either your UK birth certificate or a British or EU passport to prove that you have a right to work in the UK. If you have not already done that, then choose the Polish passport to present to your employer.

[Szmek]

That was done a few months ago during employment checks - unfortunately I used the British passport.

But if we were to go ahead and complete a EEA2 form, then proof of work from the Employer (a letter) would surely just state my 'Name' and 'Date of Birth' - not my nationality. (I guess it could easily be enquired about though)

[Jambo]

As I said, you should have no problem also using the British passport as you fall under the old rules.

The transitional arrangement started in July. If you have already been in the UK under the EEA regulations in July, you need to apply for RC before October if you want to stay under the old rules (see point 3). In your case, point (4) applies as your partner has applied for FP before July. She needs to use the FP i.e. enter the UK using it in order to make use of the old rules (point 5).

BTW - there are new forms of EEA2. They now include a section for Surinder Singh cases. They still ask if you have a British nationality.

[sarah82]

Hi Jambo,

Would you mind giving me a real quick summary of the changes that relate to ''applying for RC before October.'' ?

My spouse applied in March 2012 anyway,
but interestingly my friend (Irish national) recently mentioned that from October her tunisian spouse would have to apply for RC from Tunisia, and I just thought to myself WTH are you talking about woman?!
As I didn't think for a second that could be the case.

Anyway, I had a look at the 2012 ammendments to the 2006 eea immigrationn regulations and to be honest, I couldn't really identify what the changes were!

Only change I could comprehend from reading ukba website was the extension of power on the public policy/health/security thing.

Apologies for my ignorance

[EUsmileWEallsmile]

but interestingly my friend (Irish national) recently mentioned that from October her tunisian spouse would have to apply for RC from Tunisia

One cannot apply for a residence card outside the UK. I suspect that your friend is mistaken. Does she hold UK nationality in addition to Irish? If not, she is unaffected by the changes to the immigration regs.

[sarah82]

So what are the actual changes to the regulations from july, in brief?

[EUsmileWEallsmile]

So what are the actual changes to the regulations from july, in brief?

In brief, please read them. Any specific questions, post back.

http://www.ukba.homeoffice.gov.uk/sitec ... egulations

[sarah82]

Rights to reside in the UK on the basis of ECJ judgments do not stem directly from Directive 2004/38/EC, therefore they are referred to as 'derivative rights'. This means that the recognition of this right by the UK is not equal to rights under the directive.

This also means that those who acquire derivative rights are not eligible to acquire permanent residence in the UK, or to sponsor family members in to the UK once they have acquired a right to reside.


[quote]


I still fail to comprehend much of this, my apologies.

This implies that anyone relying on an ECJ ruling, will not be able to obtain PR,

So wasn't SINGH an ECJ ruling?

My spouse and I cited the ECJ EIND judgement when we applied for his RC, so does this mean he will not be eligible for PR?

Or is this only relevant to extended family members?

Confused dot com !!

[Directive/2004/38/EC]

Rights to reside in the UK on the basis of ECJ judgments do not stem directly from Directive 2004/38/EC, therefore they are referred to as 'derivative rights'. This means that the recognition of this right by the UK is not equal to rights under the directive.

This also means that those who acquire derivative rights are not eligible to acquire permanent residence in the UK, or to sponsor family members in to the UK once they have acquired a right to reside.

I still fail to comprehend much of this, my apologies.

This implies that anyone relying on an ECJ ruling, will not be able to obtain PR,

So wasn't SINGH an ECJ ruling?

My spouse and I cited the ECJ EIND judgement when we applied for his RC, so does this mean he will not be eligible for PR?

Or is this only relevant to extended family members?

Confused dot com !! :-)

Me2.com!

The quote does not make sense.

Very clearly somebody who has come to the UK on the basis of Singh can apply for a RC. In fact they are treated just like the spouse of any other EU citizen.

And then after 5 years of residence, they can apply for PR. And ironically, because of the ECJ Eind ruling, the UK citizen spouse will not have had to be a "qualified person" during those 5 years.

Where did this quote come from? Certainly not this thread.

[EUsmileWEallsmile]

The quote does not make sense.

Where did this quote come from? Certainly not this thread.

The quote comes from this page
http://www.ukba.homeoffice.gov.uk/sitec ... egulations

Presumably, it was meant to be an explanation / justification for derivative rights of residence, but the writer failed to qualify it as such.

Your other points are well made (as always :).

[JulietSoul]

So based on the last part of the first post, a dual British/EEA citizen has until 16.10 to apply for an EEA family permit and still not be counted as only British?? It's not only people who have applied before 16.7?
That is great news, I did not understand the rules as such but now re-reading it, it seems to be the case!

If so, my partner (the dual citizen) and I are only planning to get married in December/January, we could theoretically apply based on having lived together for over 2 years, get married and then move to UK as a married couple with the EEA family permit?
If I indeed get it, will I have any issues applying for a residence card once inside the UK, or will that keep working as before?

I am so excited, this seems like the light at the end of the tunnel, my partner was very seriously considering giving up his British citizenship so we could live in Britain (oh, the irony...)

I would appreciate any advice!

P.S. From a recent call to the UKBA they were not aware of any new regulations and said we could apply...

[Directive/2004/38/EC]

So based on the last part of the first post, a dual British/EEA citizen has until 16.10 to apply for an EEA family permit and still not be counted as only British?? It's not only people who have applied before 16.7?
That is great news, I did not understand the rules as such but now re-reading it, it seems to be the case!

If so, my partner (the dual citizen) and I are only planning to get married in December/January, we could theoretically apply based on having lived together for over 2 years, get married and then move to UK as a married couple with the EEA family permit?
If I indeed get it, will I have any issues applying for a residence card once inside the UK, or will that keep working as before?

I am so excited, this seems like the light at the end of the tunnel, my partner was very seriously considering giving up his British citizenship so we could live in Britain (oh, the irony...)

I would appreciate any advice!

P.S. From a recent call to the UKBA they were not aware of any new regulations and said we could apply...

Where does your partner presently live? Have they ever lived in the UK? Have they ever lived in the other country of their citizenship?

[richard40]

Hi I would like some advise on was is the current rule on applying for an EEA2? There have being so many deadline date and so much changes to the EEA ruling.
I am a non eu partner live in the uk for 23 yrs I have been with my partner for 17yrs who is British/Irish. We where going to submit my application before the 9th July but we couldn't get all our paper work in order, but thankfully we do now, As we had pass the 9th July was told that because my partner holds dual national we couldn't..
Can someone please let me know if i have any chance of applying and if so what are the best way to apply.

thanks
Richard

[JulietSoul]

Where does your partner presently live? Have they ever lived in the UK? Have they ever lived in the other country of their citizenship?

My partner and I have been living in Israel for almost three years.
He has lived in Britain until the age of 11, then moved to Denmark until he was about 21, and since then has been travelling around, spent less than 2 years in the UK since then (is 31 now).

However, is this even relevant? It seems to me that the way the new laws interpret McCarthy is very generally, like they wouldn't even care if he lived in the other EEA country or not...

We have e-mailed the European operation arm of the UKBA who answered that the new regulation concerning dual nationals is valid as of 16.7, but if that is the case then I am very confused regarding the "1(d) being valid from 16/10" section. Also with the fact the UKBA on the phone knew nothing of the new rules.

Any advice?

[Jambo]

However, is this even relevant? It seems to me that the way the new laws interpret McCarthy is very generally, like they wouldn't even care if he lived in the other EEA country or not...

This is very relevant as my post in this thread states you need to be present in the UK in July or apply for FP before July to benefit from the transitional arrangement until October.

If he lived in another EEA country before moving to the UK, he could return to the UK using the British nationality (Surinder Singh) and not rely on the other EEA nationality.

[Directive/2004/38/EC]

Where does your partner presently live? Have they ever lived in the UK? Have they ever lived in the other country of their citizenship?

My partner and I have been living in Israel for almost three years.
He has lived in Britain until the age of 11, then moved to Denmark until he was about 21, and since then has been travelling around, spent less than 2 years in the UK since then (is 31 now).

However, is this even relevant? It seems to me that the way the new laws interpret McCarthy is very generally, like they wouldn't even care if he lived in the other EEA country or not...

We have e-mailed the European operation arm of the UKBA who answered that the new regulation concerning dual nationals is valid as of 16.7, but if that is the case then I am very confused regarding the "1(d) being valid from 16/10" section. Also with the fact the UKBA on the phone knew nothing of the new rules.

As I have pointed out previously, the new UKBA rules go far beyond the Murphy ruling. So there may be options.

E.g. Has he worked in Denmark? Has he worked in any other EU member state?

[JulietSoul]

Where does your partner presently live? Have they ever lived in the UK? Have they ever lived in the other country of their citizenship?

My partner and I have been living in Israel for almost three years.
He has lived in Britain until the age of 11, then moved to Denmark until he was about 21, and since then has been travelling around, spent less than 2 years in the UK since then (is 31 now).

However, is this even relevant? It seems to me that the way the new laws interpret McCarthy is very generally, like they wouldn't even care if he lived in the other EEA country or not...

We have e-mailed the European operation arm of the UKBA who answered that the new regulation concerning dual nationals is valid as of 16.7, but if that is the case then I am very confused regarding the "1(d) being valid from 16/10" section. Also with the fact the UKBA on the phone knew nothing of the new rules.

As I have pointed out previously, the new UKBA rules go far beyond the Murphy ruling. So there may be options.

E.g. Has he worked in Denmark? Has he worked in any other EU member state?

He has worked in Denmark from around 17 years of age until 21 I am pretty sure, but that was a while ago. Does that matter?
What does the 1(d) clause mean then?

[Directive/2004/38/EC]

I honestly do not know what matters. You are going to have to explore and see what matters!

If you want to be really conservative, you could then convince yourself that it was a long time ago, and that he has not recently working the EU (outside the UK), and that he is British so Eu free movement law applies.

On the other hand, he has worked outside the UK. I have never seen any statement that says that decays with time.

Does he have evidence that he worked in Denmark?

When do you want to move to the UK?

[JulietSoul]

I honestly do not know what matters. You are going to have to explore and see what matters!

If you want to be really conservative, you could then convince yourself that it was a long time ago, and that he has not recently working the EU (outside the UK), and that he is British so Eu free movement law applies.

On the other hand, he has worked outside the UK. I have never seen any statement that says that decays with time.

Does he have evidence that he worked in Denmark?

When do you want to move to the UK?

He might have evidence somewhere in Denmark, which he could ask his mother to look for... (his mother lives in Denmark, his father in the UK).
We wanted to move in January or so.
We are just going to try to apply for the permit and hope, it's free anyway. We are waiting for his Danish passport to be issued, and then I have to trave abroad so we may have to wait until 11.10 to apply.
I am just still really puzzled by 1(4) and not sure what it means...

[Jambo]

I am just still really puzzled by 1(4) and not sure what it means...

See similar discussion - here.

[JulietSoul]

I am just still really puzzled by 1(4) and not sure what it means...

See similar discussion - here.

Thanks Jambo. Can we all agree now that this is all utterly ridiculous? *sigh*

[Directive/2004/38/EC]

The government people who calculate pension entitlement may have records. Or the tax people. Or his old employer.

You can then send that along with a letter explaining that his family member's entry into the UK is covered by Singh when you apply for the EEA FP.

[Jambo]

See also Surinder Singh timing.

[Directive/2004/38/EC]

See also Surinder Singh timing.

Very cool. I had not noticed that before. Very important for this couple!