EEA FP refusal - Irish/UK ctizen

[sum1]

Hi all,

an EEA FP has recently been refused to be issued to a third country national married to an Irish/UK dual national. Both currently live in ROI and the dual national is exercising treaty rights as a worker though it is not clear to me if work does actually take place in NI. The refusal was worded as follows

"You have applied for an EEA permit as the family member of an EEA national. In view of your failure to provide satisfactory evidence that you are married as claimed, nor any sufficient evidence to satisfy me that your spouse is an EEA national as indicated, I am not satisfied that you are the family member of an EEA national in accordance with Regulation 7 of the Immigration (European Economic Area) Regulations 2006"

I take the first point as the usual 'sham' marriage allegation because the marriage was probably considered 'recent' (and there are obviously no children). The second point is not totally clear to me but my first guess would be that this is may be because of the UK citizenship.

A properly apostilled marriage certificate (by Irish authorities), copies(!) of UK and Irish passports and employment letter as proof of work and residence have been included. I can see that a second application or an appeal should be polstered with stronger evidence.

Questions:
1) Shouldn't the application be possible based on the Irish citizenship?
2a) If not, shouldn't the Surinder Singh case apply? Does the 'six month rule' still apply?
2b) If the Irish/UK national is indeed a cross-border worker shouldn't that work for 2a) as well.

Opinions?

Thanks a lot for any comments in advance.

[fysicus]

The general rule is that an EU national cannot exercise treaty rights in his own country; only in other EU countries. How exactly that is to be interpreted for people with more than one EU nationality, is still somewhat unclear, but in the case at hand UKBA apparently is of the opinion that your EEA spouse is to be treated as an Irish national while in Ireland, and as a British national while in UK, and therefore in both cases not benefiting from directive 2004/38.
Apart from that they also consider your marriage as a marriage of convenience. By submitting more evidence you may succeed in getting your marriage recognised as genuine, but it will not solve the dual nationality issue. I think it is useless to reapply, an appeal (at an higher authority) could help but success is certainly not guaranteed.

[sum1]

Right, so is this based on the recent amendments to the EEA regulations (June, I think)? Somebody else has mentioned this in another thread.

[Obie]

It appears that OP has resided in another EU country other than the UK. In those circumstance McCarthy is not applicable, irrespective of the UK's legislative provision or interpretation.

You seem to have provided enough evidence of treaty rights. I will advice to appeal and reapply. They have not really made allegation of the relationship,however it may help to provide evidence of its subsisting nature.

[sum1]

Thanks Obie and also to you fysicus. Good to see that you guys are still around here.

Obie, you are right that 'allegation' is not the right word but it still appears strange to me that the marriage certificate in itself is not sufficient and I understand the instructions for ECOs on the EUN webpage regarding marriages/partnerships of convenience that the proof of burden is on the side of the ECO. But whatever, that is not really important as a workaround should be possible.

So I understand you correctly that the application must be based on the UK citizenship? Is reapplying really wise in this case as it would be just another ECO seeing the case whereas in an appeal it would be an ECM first if I understand the appeal procedure correctly? What information should the cover letter contain (references to existing law, etc.) to be convincing?

[el patron]

Appeals cost money. You could of course simply move to the UK without obtaining the family permit (relying on your treaty rights and possession of a valid passport along with your EEA national spouse) then make an application for a Residence Document from within the UK. At least at that point if you are refused the Residence Document your appeal will be 'in-country' so you will then be able to attend the appeal hearing that you will have paid for!

[sum1]

Thanks but do EEA appeals cost money too?

I have made the same suggestion to the applicant but the complication in this case is, I think, that the EEA spouse is also British which may carry additional risks. A possible variant of that approach is that the couple present themselves to UK immigration at the border in hope that UKBA border staff there hold a different view (and obtain a Code 1A stamp which would be benefical to that case).

[el patron]

Thanks but do EEA appeals cost money too?


I have made the same suggestion to the applicant but the complication in this case is, I think, that the EEA spouse is also British which may carry additional risks. A possible variant of that approach is that the couple present themselves to UK immigration at the border in hope that UKBA border staff there hold a different view (and obtain a Code 1A stamp which would be benefical to that case).

Yes EEA appeals cost money too.

Someone needs to start the ball rolling to get the amended regulations challenged.

Did the EEA national spouse have a right to reside in the UK on 16th July 2012 under the regulations? (I would expect that they did and there is nothing in the amendment to say the right had to be exercised at that point, and all EEA nationals have the automatic 3 month right to reside).

In which case on my reading if they come to the UK without the family permit they still have until 16th October to apply for a Residence Card. The 16th July cut-off appears to be the line-drawn for issue of entry clearance only.

EEA Amendment Regs 2012
Amendments to the definition of EEA national
2.—(1) Where the right of a family member (“F”) to be admitted to, or reside in, the United Kingdom pursuant to the 2006 Regulations depends on the fact that a person (“P”) is an EEA national, P will, notwithstanding the effect of paragraph 1(d) of Schedule 1 to these Regulations, continue to be regarded as an EEA national for the purpose of the 2006 Regulations where the criteria in subparagraphs (2), (3) or (4) are met and for as long as they remain satisfied in accordance with subparagraph (5).

(2) The criterion in this subparagraph is met where F was on 16th July 2012 a person with a permanent right to reside in the United Kingdom under the 2006 Regulations.

(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— .[/b](i)held a valid registration certificate or residence card issued under the 2006 Regulations; .
(ii)had made an application under the 2006 Regulations for a registration certificate or residence card which had not been determined; or .
(iii)had made an application under the 2006 Regulations for a registration certificate or residence card which had been refused and in respect of which an appeal under regulation 26 could be brought while the appellant is in the United Kingdom (excluding the possibility of an appeal out of time with permission) or was pending (within the meaning of section 104 of the Nationality, Immigration and Asylum Act 2002(19)). .

What do you think?

[Jambo]

I don't think you have a valid argument here. You can't enjoy from the transitional arrangements if you didn't live in the UK in July.

To me it sounds like - I have the right to win the lottery even without buying a ticket.

[el patron]

I don't think you have a valid argument here.

To me it sounds like - I have the right to win the lottery even without buying a ticket.

Perhaps, or if I'm correct you can still buy the ticket until 16th October 2012!

[sum1]

Jambo, you have made a comment in a recent thread regarding dual citizenship and made a remark about the Surinder Singh case. Would you mind clarifying your position regarding the case presented here?

[el patron]

I don't think you have a valid argument here. You can't enjoy from the transitional arrangements if you didn't live in the UK in July.

To me it sounds like - I have the right to win the lottery even without buying a ticket.

'You can't enjoy from the transitional arrangements if you didn't live in the UK in July.'

With respect, the amended regulations do not say that.


[/quote]

[Directive/2004/38/EC]

Am I correct in understanding that the EU citizen is working, but you are not sure if they are working in the UK or in ROI?

This is not a six month rule for Singh. But the EU citizen must have been doing real and effective work as described in http://eumovement.wordpress.com/2011/12 ... -a-worker/

[sum1]

The EU citizen is working in ROI (that point has been clarified by the applicant after I had made the original post) and residing there with the non-EEA national spouse. How effective and real that work is, I can't tell.

[Directive/2004/38/EC]

"You have applied for an EEA permit as the family member of an EEA national. In view of your failure to provide satisfactory evidence that you are married as claimed, nor any sufficient evidence to satisfy me that your spouse is an EEA national as indicated, I am not satisfied that you are the family member of an EEA national in accordance with Regulation 7 of the Immigration (European Economic Area) Regulations 2006"

What that really all the refusal letter said? Copies of the passports should have been fine.

Why did they submit 2 EU passports?

[el patron]

Useful to read the Explanatory Memorandum to the Ammended EEA regs,
it refers to 'already placed reasonable reliance on the pre McCarthy position'. I would have thought something as simple as putting a deposit down on a flat or handing in notice to an employer could be reasonable reliance? Nothing here to confirm that residence must already be established on 16th July 2012.

From the Memorandum -

7.7 Paragraph 1(d) of Schedule 1 gives effect to the ECJ judgment in McCarthy. This
determined that a person who holds the nationality of the host Member State and has
never exercised their right of free movement and residence does not benefit from the
terms of the Free Movement Directive. Transitional provisions have also been made
by way of paragraph 2 of schedule 3 of the amending Regulations to provide
continuation of rights for those who have already placed reasonable reliance on the
pre-McCarthy position which enabled British citizens to fall within the definition of
EEA national for the purposes of the Regulations where they held another EEA
nationality.

[Directive/2004/38/EC]

Useful to read the Explanatory Memorandum to the Ammended EEA regs,
it refers to 'already placed reasonable reliance on the pre McCarthy position'. I would have thought something as simple as putting a deposit down on a flat or handing in notice to an employer could be reasonable reliance? Nothing here to confirm that residence must already be established on 16th July 2012.

From the Memorandum -

7.7 Paragraph 1(d) of Schedule 1 gives effect to the ECJ judgment in McCarthy. This
determined that a person who holds the nationality of the host Member State and has
never exercised their right of free movement and residence does not benefit from the
terms of the Free Movement Directive. Transitional provisions have also been made
by way of paragraph 2 of schedule 3 of the amending Regulations to provide
continuation of rights for those who have already placed reasonable reliance on the
pre-McCarthy position which enabled British citizens to fall within the definition of
EEA national for the purposes of the Regulations where they held another EEA
nationality.

You are confusing the matter. This is not relevant to this OP. Either they are Irish in which case they can move to the UK on that basis. Or they are British and have been working in Ireland and can move to the UK on the basis of the Singh ruling.

[sum1]

"You have applied for an EEA permit as the family member of an EEA national. In view of your failure to provide satisfactory evidence that you are married as claimed, nor any sufficient evidence to satisfy me that your spouse is an EEA national as indicated, I am not satisfied that you are the family member of an EEA national in accordance with Regulation 7 of the Immigration (European Economic Area) Regulations 2006"

What that really all the refusal letter said? Copies of the passports should have been fine.

Obviously there was not more information in the letter.

Why did they submit 2 EU passports?

I do not know.


BTW, seeing mstevens recent post http://www.immigrationboards.com/viewtopic.php?t=110607: wouldn't this case actually be an Eind case? (If the UKBA really acknowleges the Eind judgment I don't see a reason to still speak of a Singh case.)

[el patron]

...... Either they are Irish in which case they can move to the UK on that basis. Or they are British and have been working in Ireland and can move to the UK on that basis.

Yes. Now queue the UKBA setting the next hurdle to be exercising treaty rights in a state of which you are not a national.

[Directive/2004/38/EC]

Obviously there was not more information in the letter

Obviously? OK. I will take your word for it.

[sum1]

Obviously there was not more information in the letter

Obviously? OK. I will take your word for it.

Obviously a misuse of the word :-) What I meant to say was that I have not been given more information.

[sum1]

Just to clear this up:
Can the Irish citizenship be used in this case? That should make the application for the EEA FP simpler but exercising treaty rights is a requirement for the RC. The British citizenship would mean to show having/being exercising treaty rights in Ireland while the application for the RC would not need this (Eind case) with the benefit of being able to apply immediately after arrival.

[Directive/2004/38/EC]

has the EU citizen been working in Ireland?

[sum1]

Well, I believe I have answered this question already. It is still yes. But I think that's irrelevant to my question: Would the UKBA insist on treating the EEA citizen as a UK citizen for whatever reason or would they also accept the Irish citizenship?

[Directive/2004/38/EC]

Well, I believe I have answered this question already. It is still yes. But I think that's irrelevant to my question: Would the UKBA insist on treating the EEA citizen as a UK citizen for whatever reason or would they also accept the Irish citizenship?

Hard to tell what UKBA will do. The law says http://eumovement.wordpress.com/2012/07 ... y-british/

But in this case I personally think it is better, given an option, to enter as British.

Why would you want to enter as Irish?