Wife holding EU and British Passport

[noajthan]

Hi Noajthan,

Many thanks for your reply.

I had a same doubt earlier aswell that I can loose my rights on the basis of my wife having EU and British Citizenship. After I read the link that you sent me, I was bit confused and I have called Home Office, they assured me that I can stay on same route, her nationality wouldn't effect me and I can apply British Citizenship straight after getting my Permanent residency. I don't have to wait another year to get BC.

I only have one question which I forgot to ask, Is that 5 years counted from the time you got married or time your visa valid from?

Please guys you all done your best to resolve my query, I will be really appreciate if you help me with my last question.

Many thanks in advance.

If applying as a family member (spouse) of EEA national exercising treaty rights in UK the time must be counted from date of marriage.

Here are cases that introduced my doubt around the change of your wife's citizenship:
See british-citizenship/british-citizenship ... n#p1064816

- note EEA national with non-EEA spouse deliberately timing their applications under EU rules & UK law.
&
http://www.immigrationboards.com/eea-ro ... 71605.html

- note complication due to EEA national giving up original citizenship.

The answer in your case may depend if you wife retained her EEA citizenship and is now a dual national or was it renounced so she is only British now.

[noajthan]

I'm still doubtful about the position of family members when their EEA sponsor naturalises as a BC - it really needs some Euro-heads to comment or advise.

You may wish to follow up your phone advice from HO and try to get something in writing from them.

What I have so far ...
from 2012: https://descartessolicitor.wordpress.com/category/eea

The new changes makes it clear that a dual UK/EEA national cannot be treated as an EEA national for the purposes of the EEA Regulations. This will have implications on EEA nationals who naturalise as British. Once they do, they will not be able to sponsor family members

from 2014: http://www.passportia.org/blog/uk-immig ... ence-cards

What should you do if your situation has changed?

If you are in the UK on a 5-year EEA residence card and the basis on which it was originally granted has changed, you should ensure that you are still entitled to be here.

from 2015: http://www.immigrationbarrister.co.uk/B ... ights.html

There may need to be references to the CJEU in order to clarify the rights of dual nationals and the rights of family members following the naturalisation of their Union citizen family member, as currently the law is unclear,

And the Gov UK guidance, ref:
https://www.gov.uk/government/uploads/s ... s_v2_0.pdf

from as recently as April 2015 still states it this way (pg 47):

A family member of a dual EEA national and British citizen does not have a right of residence under the regulations on the basis of their relationship to the dual national. If they do not have a right of residence on any other basis under the regulations, they will need leave to enter or remain in the UK under the Immigration Rules

[mgb]

The wife of the TE reached PR status as a EEA citizen and this PR right cannot be revoked via british citizenship.
The reasons for revoking PR are clear defined in the eu directive.
A person who hold PR rights from the eu directive can sponsor family members.

[secret.simon]

Are you suggesting that any EEA citizens who have acquired PR in the UK can sponsor their family members via the EEA route indefinitely, even if they become British citizens in the meanwhile? That would be a very interesting, although certainly plausible interpretation. After all, if a British citizen can acquire EEA rights by working in the EEA temporarily, an EEA citizen should be able to keep his EEA rights even after acquiring British citizenship.

[mgb]

Right, I suggesting that already reached EEA rights cannot be lost with aquiring the citizenship of the host country and therefore the eu directive is still applicable.
I got this idea from a german high court ruling. A german court ruling doesn't help much in the UK but the germans have to follow the same eu law than the brits.

[jazzsingh1985]

I'm still doubtful about the position of family members when their EEA sponsor naturalises as a BC - it really needs some Euro-heads to comment or advise.

You may wish to follow up your phone advice from HO and try to get something in writing from them.

What I have so far ...
from 2012: https://descartessolicitor.wordpress.com/category/eea

The new changes makes it clear that a dual UK/EEA national cannot be treated as an EEA national for the purposes of the EEA Regulations. This will have implications on EEA nationals who naturalise as British. Once they do, they will not be able to sponsor family members

from 2014: http://www.passportia.org/blog/uk-immig ... ence-cards

What should you do if your situation has changed?

If you are in the UK on a 5-year EEA residence card and the basis on which it was originally granted has changed, you should ensure that you are still entitled to be here.

from 2015: http://www.immigrationbarrister.co.uk/B ... ights.html

There may need to be references to the CJEU in order to clarify the rights of dual nationals and the rights of family members following the naturalisation of their Union citizen family member, as currently the law is unclear,

And the Gov UK guidance, ref:
https://www.gov.uk/government/uploads/s ... s_v2_0.pdf

from as recently as April 2015 still states it this way (pg 47):

A family member of a dual EEA national and British citizen does not have a right of residence under the regulations on the basis of their relationship to the dual national. If they do not have a right of residence on any other basis under the regulations, they will need leave to enter or remain in the UK under the Immigration Rules

Good afternoon to all senior members who are doing best to help me out from this big trouble.


As far I have researched on google and spoke to couple of solicitors, I found its only effect to the EU state which doesn't allow them having dual nationality as per ''Latvian Case'' I have spoke to HM Passport Office, they said my wife can have dual nationality because Poland allow to have dual nationality.


Pardon me if am wrong but what will happen now, we need to find out the best solution.

Looking forward to hear from you soon

[noajthan]

Good afternoon to all senior members who are doing best to help me out from this big trouble.

As far I have researched on google and spoke to couple of solicitors, I found its only effect to the EU state which doesn't allow them having dual nationality as per ''Latvian Case'' I have spoke to HM Passport Office, they said my wife can have dual nationality because Poland allow to have dual nationality.

Pardon me if am wrong but what will happen now, we need to find out the best solution.

Looking forward to hear from you soon

The case of EU states that don't permit dual nationality seems clear. This includes Lithuania (from example I posted above) & you mention Latvia.
On becoming naturalised in UK such a citizen can no longer sponsor family members as they only hold British citizenship.

It is interesting a French national made sure of 5 years of marriage plus 5 years of exercising treaty rights in UK before naturalising (another example I posted above);
afaik France does permit dual nationality.
See british-citizenship/british-citizenship ... n#p1064816

I suggest you write to HO and ask them directly about the following section of the guidance on Gov UK website that is dated from April this year.

A family member of a dual EEA national and British citizen does not have a right of residence under the regulations on the basis of their relationship to the dual national.

If they do not have a right of residence on any other basis under the regulations, they will need leave to enter or remain in the UK under the Immigration Rules

Ref page 47 of: https://www.gov.uk/government/uploads/s ... s_v2_0.pdf

If it is the current guidance on interpretation of UK policy about EU matters then you probably need to know asap so your immigration status can be straightened out.

If it somehow does not apply or has been superseded then clearly you (& others) would need to find out what the guidance actually is for the scenario: EEA national becoming British & hence a dual citizen with dependent family member who relies on sponsor's treaty rights.

[jazzsingh1985]

Good afternoon to all senior members who are doing best to help me out from this big trouble.

As far I have researched on google and spoke to couple of solicitors, I found its only effect to the EU state which doesn't allow them having dual nationality as per ''Latvian Case'' I have spoke to HM Passport Office, they said my wife can have dual nationality because Poland allow to have dual nationality.

Pardon me if am wrong but what will happen now, we need to find out the best solution.

Looking forward to hear from you soon

The case of EU states that don't permit dual nationality seems clear. This includes Lithuania (from example I posted above) & you mention Latvia.
On becoming naturalised in UK such a citizen can no longer sponsor family members as they only hold British citizenship.

It is interesting a French national made sure of 5 years of marriage plus 5 years of exercising treaty rights in UK before naturalising (another example I posted above);
afaik France does permit dual nationality.
See british-citizenship/british-citizenship ... n#p1064816

I suggest you write to HO and ask them directly about the following section of the guidance on Gov UK website that is dated from April this year.

A family member of a dual EEA national and British citizen does not have a right of residence under the regulations on the basis of their relationship to the dual national.

If they do not have a right of residence on any other basis under the regulations, they will need leave to enter or remain in the UK under the Immigration Rules

Ref page 47 of: https://www.gov.uk/government/uploads/s ... s_v2_0.pdf

If it is the current guidance on interpretation of UK policy about EU matters then you probably need to know asap so your immigration status can be straightened out.

If it somehow does not apply or has been superseded then clearly you (& others) would need to find out what the guidance actually is for the scenario: EEA national becoming British & hence a dual citizen with dependent family member who relies on sponsor's treaty rights.

Good afternoon Noajthan,

Thanks for your kind response which helps me a lot.

I have called Home Office just now and I have asked the same question they have confirmed that It won't effect on my status as I am already on EU Route. I have asked them if they can email me in writing but I have been advised to send a letter to Liverpool office and they will get back to me.

[noajthan]

Good afternoon Noajthan,

Thanks for your kind response which helps me a lot.

I have called Home Office just now and I have asked the same question they have confirmed that It won't effect on my status as I am already on EU Route. I have asked them if they can email me in writing but I have been advised to send a letter to Liverpool office and they will get back to me.

Try to encourage them to quote chapter & verse of the law or regulations they depend on.
Good luck.

[Obie]

OP appears to fall under the Transitional provision, as he was issued a Residence Card before July 2012 when the changes to the rules came about, so he should be fine.

[noajthan]

OP appears to fall under the Transitional provision, as he was issued a Residence Card before July 2012 when the changes to the rules came about, so he should be fine.

Noted, but the TP appears to require that the sponsor was a dual national at the time (i.e. in 2012) and not a single-nation citizen who subsequently became a dual national sometime later (after 2012) as in this case.

The provision specifically mentions dual national in 2012 it doesn't simply say 'an EEA national'.
It must specify 'dual national' for a reason.
Or is there another way to read that provision

Persons residing in the UK on 16 July 2012

Persons already residing in the UK on 16 July 2012 as family members of dual EEA and British citizens, and who held a valid registration certificate or residence card confirming this right on 16 October 2012 will continue to be treated as the family member of an EEA national for as long as they continue to be the family member of that dual national.

[Obie]

I hold the view that it is the fact that the person held a Residence Card before October 2012 that matters.

[noajthan]

I hold the view that it is the fact that the person held a Residence Card before October 2012 that matters.

McCarthy was a ruling that centred on the dual nationality (including an EU nationality - Irish) of a citizen with a non-EEA spouse.

The transitional arrangements are presumably to mitigate the current endpoint regulations whereby dual nationals (British + EEA) cannot sponsor family members such that a non-EEA national cannot invoke sponsorship if their sponsor becomes British.

The arrangement is not mitigating anything for sole-nationals.
A Briton (single nationality) cannot sponsor anyone under EU regulations so no mitigation there.
An EEA national (single nationality) can always sponsor a family member (by definition) so no need for mitigation at all.

So I can see an interpretation where the dual nationality of the sponsor is a significant factor at the date specified (alongside possession of a valid RC). The wording reinforces this view otherwise why does it not just say "sponsor"

It's probably 'one for the pub' until OP applies for citizenship on this basis & can then report back on the outcome.

[Obie]

I don't concur with those views.

I believe if a person was issued with a Residence Card before these changes came into effect, then they will be fine.

It cannot be the case, that a family member will lose their right of residence under EU law, because their family member naturalises. That will just be absurd , as every EEA national will be deterred from doing this, and one will get into the bizarre situation of their family member having to move to a third country, as they will be unable to apply from within the UK.

I don't one can give such a reading to the transitional agreement.

Mr McCarthy was a British from Birth, she never naturalised as British, she only took and artifical advantage of Irish citizenship.

Her case cannot be assimilated to EEA national who moved to the UK in exercise of their right and then naturalise.

The transitional arrangement was designed to protect people in the case of McCarthy, who were working in the UK and also have dual nationality, and who had never moved from one state to another.

[mgb]

McCarthy was a ruling that centred on the dual nationality (including an EU nationality - Irish) of a citizen with a non-EEA spouse.

You cannot refer to McCarthy.
One of the main statements there was "is not applicable to a Union citizen who has never exercised his right of free movement".
A holder of a PR right obviously excercised his right of free movement.

[noajthan]

McCarthy was a ruling that centred on the dual nationality (including an EU nationality - Irish) of a citizen with a non-EEA spouse.

You cannot refer to McCarthy.
One of the main statements there was "is not applicable to a Union citizen who has never exercised his right of free movement".
A holder of a PR right obviously excercised his right of free movement.

Agreed McCarthy was a case that was very limited in scope, the judge's remarks on the case reflected that.
The claimant/appellant lost her case.

However it turned into a sad day in the annals of EU regulations.
The regulations themselves do now refer to McCarthy in the context of dual nationals.
The regulations do not limit themselves to persons who are economically-inactive (as the appellant was said to be) nor to persons who never exercised free movement/treaty rights.

HMG appear to have ignored the judge's remarks (made at time of McCarthy ruling) & incorporated the outcome of the McCarthy case into revised and restrictive EU regulations.

This is clear in versions published on Gov UK as recently as this year:
https://www.gov.uk/government/uploads/s ... s_v2_0.pdf

& as per post from Vinny, ref: british-citizenship/british-citizenship ... l#p1236091

EEA national” means a national of an EEA State who is not also a British citizen

The impact of McCarthy case is conveyed quite clearly here:
http://www.migrantsrights.org.uk/migrat ... tions-2006

The new Regulations do take an expansive approach to the Court of Justice case law to restrict the rights of people to reside in the UK. For example, family members of dual British/EEA can no longer enjoy residence rights under the Regulations (unless the British/EEA national has lived in another EEA State) and must rely instead on the increasingly restrictive Immigration Rules.

There is a transition period that will last until 16 October 2012 for family members of dual British/EEA nationals to secure their status. This is important not only for the non-EEA family members of British/EEA nationals, but also for the EEA national family members of dual British/EEA nationals.

So it's all about dual nationals. The transitional arrangements gave dual nationals in UK about 3 months to apply for a RC (if they didn't have one already). This was a window to secure the then (in 2012) receding rights to sponsor family members in the UK.

The arrangement in the regulations clearly states "dual national", it doesn't simply say something like "EEA sponsor (whether single or dual-national)".

The impact of changes brought in the 2012 regulations are explained further here;
http://www.mcgillandco.co.uk/Blog/2012/ ... egulations

So the 2012 regulations finally seek to bring the decision in McCarthy into domestic law. At least that is what is stated in the Explanatory Note to the amendments.

The amendment itself notes that an EEA national will now be defined as a national of an EEA state ‘who is not also a United Kingdom national’. Whilst the rest of the regulations come into force on 16th July 2012, this amendment only is held back until 16th October 2012.

Further issues arise in circumstances where a long term UK resident with EEA nationality seeks to acquire UK citizenship. Doing so would likely then impose the far stricter Immigration Rules regime (and in particular the dreaded Appendix FM) in relation to any applications they might make to UKBA for their non-EEA family members. This might be avoided by reliance on regulation 9, ... but its far from clear how that would work in practice

Is there now case law that has clarified the position for dual nationals (British/EEA)

I have heard of Surinder Singh but that seems to apply to single-national Britons who take advantage of the Europe route as 'proxy EEA nationals' to use free movement rights to sponsor their family members.

There are plenty of EEA family member postings in this forum.
However the majority of those cases (that I could find) depend on the sponsor's PR; the sponsor may then naturalise as a UK citizen afterwards (once the family member's settled status is secured).

There are not many examples to be found where the sponsor of a non-EEA national naturalises mid-way through the 5 years period for acquiring PR.

It will be interesting to see how the OP's case runs its course.

[mgb]

McCarthy was maybe a sad day for the EU regulations but it deliver amunition for the case of the OP.
The court came to the conclusion the directive is not applicable to a dual national Union citizen who has never exercised his right of free movement and the next logical conclusion is than the directive is applicable if that eu citizen exercised his right of free movement.

[noajthan]

McCarthy was maybe a sad day for the EU regulations but it deliver amunition for the case of the OP.
The court came to the conclusion the directive is not applicable to a dual national Union citizen who has never exercised his right of free movement and the next logical conclusion is than the directive is applicable if that eu citizen exercised his right of free movement.

Understood.
And the common sense, the logic & natural justice of your argument makes sense - I agree with you.

But that reasoning, embodying the ideals of free movement, stands in opposition to the Immigration Regulations of 2006, (as amended 2012).

My views are not important but the EU regulation appears punitive & restrictive.
There is no spirit of free movement in it.

HMG implement the UK's EU regulations and they were amended in a restrictive way so that a dual national who is from an EEA country and is a British citizen is only recognised as being British.

EEA nationals who are also British citizens are not considered to be ‘EEA nationals’ for the purposes of the Immigration European Economic Area) Regulations 2006(‘theRegulations’).

This applies whether or not the British citizen has always resided in the UK.

A family member of a dual EEA national and British citizen does not have a right of residence under the regulations on the basis of their relationship to the dual national.

In OP's case, the spouse/sponsor has since naturalised as a UK citizen so the HO will, if they apply the regulations, now consider her as British (only).

The family member (non-EEA) had not acquired settled status by the time his spouse (sponsor) was naturalised.

OP had RC in his possession but at the time of the transitional arrangement the sponsor was not a dual citizen.

As per the wording of the transitional arrangement, the sponsor had to be a dual national ("dual EEA and British citizen") with a valid RC by a certain date - this is not their case.

If any EEA national (dual national or not) could be exempt by holding RC in October 2012 I don't understand why the wording says "dual EEA and British citizen" in the transitional arrangement.

If there is a case that has overturned that interpretation then all good but common sense alone won't be enough to counter the UK law.

I hope there has been such case law & I would like to hear about it;
(there's also little or no evidence of it in the postings I can find in this forum and wider on WWW).

[mgb]

HMG implement the UK's EU regulations and they were amended in a restrictive way so that a dual national who is from an EEA country and is a British citizen is only recognised as being British.

I don't agree.
There is a reference "For further information, see related links: EEA case law – McCarthy"
McCarthy in all its directions has to be considered.

[noajthan]

I don't agree.
There is a reference "For further information, see related links: EEA case law – McCarthy"
McCarthy in all its directions has to be considered.

Yep, the mists are clearing...

The case law document, here:
https://www.gov.uk/government/uploads/s ... _0_EXT.pdf

clearly explains the transitional arrangements for McCarthy-related cases are for dual nationals - see page 19.

Transitional arrangements for those who had already relied on a British or EEA national for a right of residence
Transitional arrangements were put in place for people who had a already relied on a dual British or EEA national for a right of residence before 16 July 2012

Here's an example tribunal case for the non-EEA spouse of a dual national, who had a RC in 2012; the transitional arrangements were deemed to apply to him:
https://tribunalsdecisions.service.gov. ... 24618-2013

There is clear evidence of growing consensus (in immigration lawyer circles) that HMG didn't encapsulate all those directions of the McCarthy case into their amended regulations.

See another example of this view:
https://eumovement.wordpress.com/2012/0 ... ly-british

If you are also British, then you are only British!

UKBA’s new EEA regulations (The Immigration (European Economic Area) (Amendment) Regulations 2012) state that when an EEA national is also British, then the EEA free movement regulations do not apply to them:

“EEA national” means a national of an EEA State who is not also a United Kingdom national. (regulation 2, as amended)

This amendment of the definition of an EEA national reflects the ECJ’s judgment in the case of C-434/09 Shirley McCarthy v Secretary of State for the Home Department. (from the Explanatory Note at the bottom)“

Ms. McCarthy, in case C-434/09, was (1) not working or otherwise exercising any treaty rights and (2) had not previously asserted her Irish citizenship in a practical way, e.g. by holding an Irish passport.

The court held that EU free movement law did not apply to her or her family.

In their conclusion, the court limits the judgement to somebody:
“who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State”

These three careful qualifications of the ECJ judgement are entirely missing from these new UK regulations.

[Obie]

Well even though the Upper Tribunal fell into error in that case, it is clear that it assessment on the transational provision was clearly correct.

[jazzsingh1985]

Many Thanks to all who has managed to get me a right answer. I have sent written letter to liverpool office to confirming am standing on right criteria.

As I have double checked with Home office about my status, they clearly said, I don't need to switch to British Immigration category (£18,600), as I am already under EEA Law because my wife EU nationality didn't revoke. He clearly said advantage of having BP that I don't need to wait for another year to get BP, As soon as I got my PR, he said I can apply BP straight away.


Only one thing, I am unsure about, Do I still to apply for EEA 4 PR after completing my five years of marriage or I can apply BP straight. As far I read in forum, PR is just confirmation on passport, so In that case, I can apply for BP in 2017...

Correct me if am wrong

[noajthan]

Many Thanks to all who has managed to get me a right answer. I have sent written letter to liverpool office to confirming am standing on right criteria.

As I have double checked with Home office about my status, they clearly said, I don't need to switch to British Immigration category (£18,600), as I am already under EEA Law because my wife EU nationality didn't revoke. He clearly said advantage of having BP that I don't need to wait for another year to get BP, As soon as I got my PR, he said I can apply BP straight away.


Only one thing, I am unsure about, Do I still to apply for EEA 4 PR after completing my five years of marriage or I can apply BP straight. As far I read in forum, PR is just confirmation on passport, so In that case, I can apply for BP in 2017...

Correct me if am wrong

The hive mind of this forum is incredible isn't it.

A PR card is simply confirmation that the holder has acquired PR, it is not mandatory for any purpose.

Having a PR card may simplify the evidence to be submitted to support a naturalisation application.

A risk-averse applicant may choose to apply for a PR card ahead of naturalisation;
the outlay is lower than the naturalisation fee & any difficulties with PR status can be identified upfront without putting a naturalisation application at risk.

It is your call whether to go for naturalisation first as a spouse of BC doesn't need to have settled status for 12 months first.

[jazzsingh1985]

The hive mind of this forum is incredible isn't it.

A PR card is simply confirmation that the holder has acquired PR, it is not mandatory for any purpose.

Having a PR card may simplify the evidence to be submitted to support a naturalisation application.

A risk-averse applicant may choose to apply for a PR card ahead of naturalisation;
the outlay is lower than the naturalisation fee & any difficulties with PR status can be identified upfront without putting a naturalisation application at risk.

It is your call whether to go for naturalisation first as a spouse of BC doesn't need to have settled status for 12 months first.[/quote]


Hi Noajthan,


Thanks very much for your advice, I will definitely apply for my PR first, as I don't want to take a big risk.

For PR, I believe I just only need to prove my wife is exercising her treaty rights under EU Law. Is that it, I believe so.

Don't get me wrong, If any how our relationship cracks down in between, Is there any grounds So I can stay in this country.

[Obie]

I sent you a PM .

Are things not going well with your relationship, then you are better of working on getting a retained right of residence as PR is 2 years away. If she leaves then u neither get Citizenship nor PR. If she leave the UK.