UK/Irish spouse Living UK. Please Help

[EUsmileWEallsmile]

Chen was entitled to Irish citizenship (at that time), but NOT British. This was a different case.

Rottmann was at risk of losing EU citizenship. This is not at issue here.

[Obie]

I was not seeking to draw parallels between the cases i cited.

I was merely stating the point that it is not strictly speaking a requirement that one has to move in order to benefit from treaty rights or provisions under the directive.

Article 20 was applied to Rottamann even though he was residing in Germany, a country he is a national of. Albeit fraudulently.

Chen was entitled to Irish Citizenship and not British. However, she never moved but was born, and has always resided since her birth in the UK.

[EUsmileWEallsmile]

Ok, but the judgement of the court in McCarthy was very clear in this regard. She hadn't exercised her right of freedom of movement. Nor was she to be deprived of the enjoyment of EU citizenship.

Some of the other cases cited touched on one of other of these points.

[Obie]

The court took that stand because they viewed Mrs McCarthy as purely British, and conclude that the acquisition of Irish passport, was an act aimed at creating an artificial situation.

In light of that, they viewed her as a British National who is immobile, has never sought to exercise treaty right which will bring her within the scope of Surinder Singh. Lastly, they conclude there is no threat to the substance of her rights as a Union Citizen, as she can move to another memberstate and capable of doing so.

So to conclude.

1. Carpenter was providing cross border service. Did not need to move to acquire rights under the treaty. There was a link between two memberstate. The treaty provision applied.

2.Zambrano children are young and need their parent. They cannot move. To remove their parents mean they too will be required to leave, and the substance of their right as union citizen will be infringed. (Exceptional Case).

3. Chen was an Irish Citizen whose mother was self sufficient. She was born in UK but was Irish at birth. Her Irish citizen was recognised. She did not need to move, as her genuine Irish citizenship, created the Link between 2 countries. Eire and UK.

4. Mrs McCarthy has always been a British, and only sort Irish citizenship to sponsor her husband. She never worked. Her British nationality was recognised as genuine and her Irish nationality was not. She can only benefit from the treaty if she fell within the scope of Singh. The substance or genuine enjoyment of her rights as union citizen was not obstructed.

[MelC]

As you say, in carpenter there was cross border (service) MOVEMENT

Zambrano would not apply to the children in this case

Chen's Irish citienship was established PRIOR to "movement" ie Irish citizen in the UK

whereas OP is looking for Brit Cit to be Irish and claim life in UK as Brit cit was as Irish Cit?

that is what it comes down to?

which puts the OP very much in the McCarthy seat.

there is no reason why the OP wife cannot move, it may be preferred not to, a choice not to, it may be disruptive to their lifestyle to move but tat isn't a reason for the UKBA to accept that she is irish if she qualifies and gets a passport ~

I would think that maybe the difference could be that once the passport is obtained that from that day onwards the OP wife resides as an Irish citizen

applying for registration certificate etc thus the irish citizenship becomes Primary? thus treaty rights would be established?

[EUsmileWEallsmile]

The court took that stand because they viewed Mrs McCarthy as purely British, and conclude that the acquisition of Irish passport, was an act aimed at creating an artificial situation.

In light of that, they viewed her as a British National who is immobile, has never sought to exercise treaty right which will bring her within the scope of Surinder Singh. Lastly, they conclude there is no threat to the substance of her rights as a Union Citizen, as she can move to another memberstate and capable of doing so.

So to conclude.

1. Carpenter was providing cross border service. Did not need to move to acquire rights under the treaty. There was a link between two memberstate. The treaty provision applied.

2.Zambrano children are young and need their parent. They cannot move. To remove their parents mean they too will be required to leave, and the substance of their right as union citizen will be infringed. (Exceptional Case).

3. Chen was an Irish Citizen whose mother was self sufficient. She was born in UK but was Irish at birth. Her Irish citizen was recognised. She did not need to move, as her genuine Irish citizenship, created the Link between 2 countries. Eire and UK.

4. Mrs McCarthy has always been a British, and only sort Irish citizenship to sponsor her husband. She never worked. Her British nationality was recognised as genuine and her Irish nationality was not. She can only benefit from the treaty if she fell within the scope of Singh. The substance or genuine enjoyment of her rights as union citizen was not obstructed.

Did the court actually suggest that her Irish citizenship was not genuine. I can't find that reference.

[EUsmileWEallsmile]

I understand that Zambrano had nothing to do with freedom of movement (there was none), but that to deny rights to non-EU parents such that they could not support their family would effectively force EU nationals to leave the union. It was the children's EU citizenship that was important.

[EUsmileWEallsmile]

Hi there, :wink:

I really need make something clear and really need the help of the members.

I'm married to a UK Citizien and we were planning to go to Ireland and settle there to avoid UK laws, then come back and apply under EU law. However it was not a choice, it was a lack of choice as we like to be in UK.

But the point is, my wife granparents were Irish and we're thinking to get her Irish passport through descendant.

That would be perfect for us as she's pregnant and we both want to stay in UK.

Does anyone here know once she gets Irish passport we could apply for EEA family permit using her Irish passport even though she hasn't lived in Ireland or any other EU country?


Any help will be very appreciate. Thanks.

I am with Greenie, what is your reason for wanting to avoid UK immigration? i am assuimg that you do not qualify for some reason?

I thnk the Irish passport application saga is something of a none starter as the UKBA tend to view with great suspicion recent acquisition by British Citizens, and your wife would not qualify as her time in the UK is as a Brit Cit, NOT an Irish Cit, as per McCarthy.

there are always choices.

yours it would seem to be is that your wife exercises her treaty rights in an EEA state other than that of her nationality (UK) for you both to then return to the UK under Singh.

OP's wife's case is similar to McCarthy in terms of citizenship. However, OP has stated that she is working.

[Obie]

Paragraph 33 of the advocate general's opinion in McCarthy seems to suggest that her Irish nationality was not real or effective.

I am sorry if i used the word genuine. I hope you dont interprete that as me suggesting Mrs McCarthy was not entitled to Irish nationality, but fraudulently obtained it.

It has been concluded, and it is not a matter in contention, that in all the circumstances OP's wife will not qualify for any entry or residence documents under EU law once UK makes ammendment to EEA regulations. Therefore i believe this debate is purely academic to his situation.

[EUsmileWEallsmile]

Paragraph 33 of the advocate general's opinion in McCarthy seems to suggest that her Irish nationality was not real or effective.

I am sorry if i used the word genuine. I hope you dont interprete that as me suggesting Mrs McCarthy was not entitled to Irish nationality, but fraudulently obtained it.

It has been concluded, and it is not a matter in contention, that in all the circumstances OP's wife will not qualify for any entry or residence documents under EU law once UK makes ammendment to EEA regulations. Therefore i believe this debate is purely academic to his situation.

I hadn't read the advocate general's opinion before. As you point out her dual-citizenship was real.

If I were the OP, I would not consider this route. It is quite likely to fail now or at some point in the future.

[M999]

Thanks to EUsmileWEallsmile, Obie and MelC.
Made things much clear to me

I made my mind up, we are going to Ireland then.
So there's no reason to carry on the application for Irish passaport right now as we will be ok using her British passaport in Ireland then coming back in 6 months and applying under EU laws.

Thanks guys.

[EUsmileWEallsmile]

I hope it works out for you and you find work in Ireland.

[asiainuk]

Hi,
I am new to this forum. I can see that there is lots of member and who are very helpful. I would like to have some advise regarding EEA family permit.

Here is my case details. I have been living in UK as a EEA family member of France national. My wife now also taken british citizenship. She is 33years old and have been exercising EU rights in UK for last 10years. I got also PR after exercising EU rights in UK for last 6years. I have also applied for British citizenship and awaiting for approval.

Now We would like to apply for EEA family permit for my parents who lives in Pakistan. I have noticed that law has changed in July 2012. Dual citizen( my wife - British and France) can not apply for EEA FP. But McCarthy law applied only for those who has never exercised EU rights. Clearly we have exercised EU rights. So I am just wondering whether we still can use EEA route for EEA FP.

Please advise me if anyone on this forum know more about it. Your reply will be highly appreciated.

Thank you

[asiainuk]

Hi,
I am new to this forum. I can see that there is lots of member and who are very helpful. I would like to have some advise regarding EEA family permit.

Here is my case details. I have been living in UK as a EEA family member of France national. My wife now also taken british citizenship. She is 33years old and have been exercising EU rights in UK for last 10years. I got also PR after exercising EU rights in UK for last 6years. I have also applied for British citizenship and awaiting for approval.

Now We would like to apply for EEA family permit for my parents who lives in Pakistan. I have noticed that law has changed in July 2012. Dual citizen( my wife - British and France) can not apply for EEA FP. But McCarthy law applied only for those who has never exercised EU rights. Clearly we have exercised EU rights. So I am just wondering whether we still can use EEA route for EEA FP.

Please advise me if anyone on this forum know more about it. Your reply will be highly appreciated.

Thank you

[chaoclive]

Hi,
I am new to this forum. I can see that there is lots of member and who are very helpful. I would like to have some advise regarding EEA family permit.

Here is my case details. I have been living in UK as a EEA family member of France national. My wife now also taken british citizenship. She is 33years old and have been exercising EU rights in UK for last 10years. I got also PR after exercising EU rights in UK for last 6years. I have also applied for British citizenship and awaiting for approval.

Now We would like to apply for EEA family permit for my parents who lives in Pakistan. I have noticed that law has changed in July 2012. Dual citizen( my wife - British and France) can not apply for EEA FP. But McCarthy law applied only for those who has never exercised EU rights. Clearly we have exercised EU rights. So I am just wondering whether we still can use EEA route for EEA FP.

Please advise me if anyone on this forum know more about it. Your reply will be highly appreciated.

Thank you

This forum is two years old. Why not open your own?

Also: I don't think your spouse will qualify. It would have been ok if before they took Brit Cit. Now it's complex. They will probably ask for Surinder Singh proof。

[asiainuk]

Hi chaoclive, Thank you for your reply. Why do we need Surider Singh proof? McCarthy law does not apply to us, does it? As My wife has exercised EU rights in UK before she become british national and I am still on EEA 4 (PR) visa.

Is it possible for us to apply for EEA family permit of my parents under EEA route regardless whether there is complexity or not. If we can, what are the points we need to write on our covering letter to prevent visa refusal.

I would much appreciate, if you could give your expert suggestion with quoted reference. So we can write on our covering letter with that reference.

Thank you.

[chaoclive]

Hi chaoclive, Thank you for your reply. Why do we need Surider Singh proof? McCarthy law does not apply to us, does it? As My wife has exercised EU rights in UK before she become british national and I am still on EEA 4 (PR) visa.

Is it possible for us to apply for EEA family permit of my parents under EEA route regardless whether there is complexity or not. If we can, what are the points we need to write on our covering letter to prevent visa refusal.

I would much appreciate, if you could give your expert suggestion with quoted reference. So we can write on our covering letter with that reference.

Thank you.

I am not an expert. You're welcome to wait for one to come along. Alternatively, why not try to contact the Home Office European Operational Policy section. Their email address is on this forum somewhere.

Also: my personal opinion (wait for the experts to provide the references) she has exercised treaty rights in the past. Now she is British (and other EEA), this means that the UK authorities will view her as British. I have read about cases like this which were fine for the people who had already been sponsored under the EEA rules (i.e. spouse who, like you, is either nearing PR or has already achieved PR and is awaiting British citizenship), but the EEA citizen was not able to sponsor people again as they were now British and the people seeking sponsorship (i.e. your parents) were not with the EEA citizen when they were exercising treaty rights in the UK. Therefore, they don't qualify.

I think your spouse is now in the same position as any British citizen who has dual nationality (e.g. British/Irish).

Of course it is possible to apply for the visa. I'm not sure that you can, as things stand, prevent refusal.

However, as I said, I'm not familiar with this kind of situation. I'd recommend opening your own new thread.

[el patron]

Essentially I would share Chaoclive's concerns, by all means try if you wish, the EEA VAF form certainly until recently has not asked if the EEA national also held British nationality. Even if granted the problem could rear it's head upon entry to the UK when your family members would be applying for an EEA residence document, at that point the form definately asks.

Transitional provisions indeed only apply to those who have held a EEA document prior to the amendments. As yet I do not see much sign of the Home Office expanding the criteria for inclusion of family members in regard to how they deal with singh applications, the opposite is more like the case...

[chaoclive]

It will be a problem at the EEA2 (RC) stage as the application form specifically asks...