Hi there
I'm just putting a reply from Your Europe Advice on here for others to see and consider.
Their answer is listed first below and you can find my original query below. It was about an Irish/British national renouncing British citizenship to rely on the Irish citizenship to apply for an EEA FP outside Europe
CC
_________
"Thank you for your enquiry to the Your Europe Advice service.
At the outset, I should advise that the issue of whether a person who has renounced his British citizenship can rely on Directive 2004/38/EC to have his civil partner take up residence with him in the UK on the basis that the EU citizen retains his Irish citizenship has not been decided upon by the Court of Justice of the EU to date.
In the McCarthy case, C-434/09, the Court of Justice decided that EU citizens who have never exercised their right of free movement cannot invoke Union citizenship to regularise the residence of their non-EU spouse. Where such persons are not deprived of their right to move and reside within the territory of the Member States, their situation has no connection with European Union law.
While Ms. McCarthy had not renounced her British citizenship in this case, like you, she held dual Irish/British citizenship and sought to rely on her Irish citizenship to have her non-EEA spouse take up residence with her in the UK. This was firmly rejected by the Court of Justice on the basis that she had not exercised a right of free movement in the EU. Your case could be similarly decided on the basis that although you are now residing in China, you have not exercised a right of free movement in the EU as you are not living or working in another Member State of the EU and seeking to return to the UK.
In response to your specific questions:
a) Your concern is well founded. You should be prepared that your partner s application for an EEA Family Permit may be rejected on the basis that despite your renunciation of your British citizenship, you cannot be regarded as having exercised EU Treaty rights analogous to the McCarthy case. You would have a right of appeal against the refusal but this may be of little value since there is no time limit on dealing with such appeals so your partner s application for an EEA Family Permit could remain in limbo for some time and ultimately be refused again.
b) If you are to have any chance of suceeding with your partner s application for an EEA Family Permit on the basis that you have renounced your British citizenship, this should be done before making the application and you should be able to confirm this at the time of making the application. However, even if you do this, success in being granted an EEA Family Permit is not guaranteed.
c) It is possible to re-apply for British citizenship having previously renounced same. The following webpage of the UK Border Agency explains the conditions:
http://www.ukba.homeoffice.gov.uk/briti ... tizenship/
d) It should not be relevant that you were a British citizen when the civil partnership was registered and now seek to rely on your Irish citizenship to have your partner enter the UK. However, the McCarthy case is again relevant here. The question to be addressed will be whether there is any exercise of EU Treaty rights.
I note that if renunciation of your British citizenship is not successful in obtaining an EEA Family Permit for your partner, you plan to resort to the Surinder Singh route. From 1st January, it will now be a new requirement for those using the Surinder Singh route that the centre of [the British citizen] s life has transferred to the EEA State where [the British citizen] resided as a worker or self-employed person.
However, it is important for you to be aware that if you have renounced your British citizenship, and you have resided in Ireland for a period longer than three months, your partner can then make an application for an EEA Family Permit to enter the UK with you on the basis that you are an Irish national seeking to enter the UK. If you no longer hold British citizenship, you do not need to rely on Surinder Singh at all.
I trust that the above information is of assistance to you. Should you have any further queries concerning your rights in the EU, please do not hesitate to revert to the Your Europe Advice service -
http://europa.eu/youreurope/advice/index_en.htm
I take this opportunity to wish you a Happy New Year.
Yours sincerely,
Your Europe Advice
Thank you for consulting Your Europe Advice. Your opinion is important to us. Please click
http://www.ghkint.com/surveys/yea/ to participate in a short users satisfaction survey in order to help us evaluate this service.
To submit another enquiry, please visit Your Europe Advice, but do not reply to this e-mail."
My original query is noted below:
"I am a dual Irish/British citizen from Northern Ireland. My civil partner (UK Civil Partnership) is from China and we currently live in China at present. In the near future, I will be renouncing my British Citizenship and sponsoring my Chinese civil partner in an application for an EEA Family Permit (the entry visa provided to EEA national family members).
I plan to return to Northern Ireland (part of the UK) to work as an Irish citizen exercising my EU Treaty Rights in a country of which I am not a citizen (I will have already renounced British citizenship by the time I enter the UK with my partner, provided the UK Embassy in China provides him with a visa).
I have 4 questions regarding my future situation:
1) Is there any provision which protects people who have decided to renounce British citizenship (which was achieved by the location of my birth, even though I now personally identify as being Irish) in successfully achieving an EEA Family Permit from the UK authorities (i.e. UK Embassy in China)? I am worried that our application will be rejected because I used to be a British citizen. In essence, I am worried that the Common Travel Area between the UK and Ireland, the Good Friday Agreement and the fact that Irish people are viewed as automatically 'settled' in the UK will prove to be a hindrance in my application. If I was rejected, would I have recourse to appeal? Would it be legal to be rejected?
2) As I will have renounced British citizenship by the time of our application, is it required that I produce a confirmation that I no longer possess British citizenship when my partner applies? I have noted that people who were born in England have had their spouse's EEA family permits rejected simply because the Embassy assumed that, by virtue of being born in England, that they had British citizenship. The same would apply to me. However, I am worried that having renounced British citizenship before the application may have a detrimental effect.
3) Is there provision, under the EEA Regulations (Free Movement) for a person who has originally renounced British citizenship (or other 'host country' citizenship) to get 'host country' citizenship again via the 5 year process of working and living in such a country? This would be the same as a French person working in the UK for 5 years and receiving British citizenship, or at least Permanent Residence.
4) Our civil partnership was undertaken at the British Consulate in Ho Chi Minh City (Vietnam) and I was regarded as a British citizen. Does it matter at all that I will no longer be a British citizen when we apply for the EEA family permit for my partner. I will, instead, be an Irish citizen only.
I have emailed all of these questions to the UK Home Office but, as always, have not received any response (as always seems to be the case nowadays).
I will be renouncing British citizenship in the very near future and would hope to have all the information available before I undertake this decision. if this is not the best way, i will consider the Surinder Singh route into the UK."