Northern Irish...EEA2

[Debgb]

Hello all,

This is my situation. I am a non eea national living in London currently under Tier 1 that expires in April.

I got married in June 2012 to a man who was born in Northern Ireland in 1983 to parents who both hold Irish passports. My husband holds and always held Irish passport himself, travels on it and has never had a British passport. He has lived in NI most of his life but has been working in London for past six years.

My questions are..
1. Can we go through Eea2 route?

2. Is my husband regarded to be a dual citizen although he doesn't have a British passport?

3. What are the implications should he choose to apply for eea1 as well?

The whole McCarthy thing is confusing me. Although admittedly, as I said, my husband doesn't actually hold a British passport despite being born in NI. Is he still a British citizen though 'automatically' just by dint of the place of his birth and therefore dual citizen?

Lady on UKBA phones wasn't overly helpful. She said, " if you don't have British passport, you don't have it; even if you can apply for one". Hmm. Anybody with slightly clearer answers? Much appreciated.

[fysicus]

I wouldn't bother now and just submit the EEA2 application.

If UKBA thinks your husband has British nationality as well, they will tell you at some point and then it is early enough to deal with the problem.

[el patron]

'If you were born in the UK on or after 1 January 1983, you are a British citizen if at the time of your birth one of your parents was:

a British citizen; or
legally settled in the UK.'

From - http://www.ukba.homeoffice.gov.uk/briti ... territory/

Option to renounce at cost of £229 fee to UKBA may create a solution!

[catsintrees]

'If you were born in the UK on or after 1 January 1983, you are a British citizen if at the time of your birth one of your parents was:

a British citizen; or
legally settled in the UK.'

From - http://www.ukba.homeoffice.gov.uk/briti ... territory/

Option to renounce at cost of £229 fee to UKBA may create a solution!

It's not quite as simple as that in NI, because the Good Friday agreement enshrined the right to a nationality that could be 'British, or Irish, or both'. I'm in a similar boat debgd, my partner is a non-EEA national, and I am N.Irish. I have only ever held an Irish passport and now I am working in England. We're going to apply and see what happens.

[el patron]

'If you were born in the UK on or after 1 January 1983, you are a British citizen if at the time of your birth one of your parents was:

a British citizen; or
legally settled in the UK.'

From - http://www.ukba.homeoffice.gov.uk/briti ... territory/

Option to renounce at cost of £229 fee to UKBA may create a solution!

It's not quite as simple as that in NI, because the Good Friday agreement enshrined the right to a nationality that could be 'British, or Irish, or both'. I'm in a similar boat debgd, my partner is a non-EEA national, and I am N.Irish. I have only ever held an Irish passport and now I am working in England. We're going to apply and see what happens.

I beg to differ with that interpretation of the Agreement it says -

"recognise the birthright of all the people of Northern Ireland to
identify themselves and be accepted as Irish or British, or both, as they
may so choose, and accordingly confirm that their right to hold both
British and Irish citizenship is accepted by both Governments and would
not be affected by any future change in the status of Northern Ireland."

http://www.dfa.ie/uploads/documents/Ang ... eement.pdf

Clearly a distinction was made between identity and citizenship, no doubt though this is a topic that will feature in many upcoming tribunal appeals!

[catsintrees]

'If you were born in the UK on or after 1 January 1983, you are a British citizen if at the time of your birth one of your parents was:

a British citizen; or
legally settled in the UK.'

From - http://www.ukba.homeoffice.gov.uk/briti ... territory/

Option to renounce at cost of £229 fee to UKBA may create a solution!

It's not quite as simple as that in NI, because the Good Friday agreement enshrined the right to a nationality that could be 'British, or Irish, or both'. I'm in a similar boat debgd, my partner is a non-EEA national, and I am N.Irish. I have only ever held an Irish passport and now I am working in England. We're going to apply and see what happens.

I beg to differ with that interpretation of the Agreement it says -

"recognise the birthright of all the people of Northern Ireland to
identify themselves and be accepted as Irish or British, or both, as they
may so choose, and accordingly confirm that their right to hold both
British and Irish citizenship is accepted by both Governments and would
not be affected by any future change in the status of Northern Ireland."

http://www.dfa.ie/uploads/documents/Ang ... eement.pdf

Clearly a distinction was made between identity and citizenship, no doubt though this is a topic that will feature in many upcoming tribunal appeals!

Interesting, thank you.

I wonder about the being 'accepted as Irish or British' part. Would that include being accepted as one or the other by the relevant governments? I guess we'll find out.

[Debgb]

Yes NI is a huge anomaly.

Catsintrees, what a pickle!

I called UKBA again. After five minutes of explaining what I was asking about..this is what they had to say...'If your husband has Republic of Ireland passport, then you can go through EEA. Doesn't matter if he was born in South Africa!'

I am thinking of having my husband not tick the 'are you also a British citizen' box on the EEA2 form.

[catsintrees]

Yes NI is a huge anomaly.

Catsintrees, what a pickle!

I called UKBA again. After five minutes of explaining what I was asking about..this is what they had to say...'If your husband has Republic of Ireland passport, then you can go through EEA. Doesn't matter if he was born in South Africa!'

I am thinking of having my husband not tick the 'are you also a British citizen' box on the EEA2 form.

Isn't it just?

If we are refused we intend to go elsewhere in the EU and possibly return in 6/7 months. But first I think we'll have to see how this all applies to NI citizens who don't claim their Britishness.

[Directive/2004/38/EC]

a man who was born in Northern Ireland in 1983 to parents who both hold Irish passports. My husband holds and always held Irish passport himself, travels on it and has never had a British passport.

McCarthy clearly does not apply to him. Your husband has always identified as an Irish citizen. And he has worked, so he has exercised his treaty rights.

You may have to be refused and then appeal.

[Obie]

This is not a simple question. Someone does not need a passport to be a citizen of a nation. However it could be argued under McCarthy, Good Friday argument and lots of other area. It is not a simple one, as by all account your spouse is a British Citizen, which he acquires automatically at birth, notwithstanding the fact that he has not secured a British passport.

As others have suggested, apply and if rejected, matter will bevtaken from there.

[Debgb]

a man who was born in Northern Ireland in 1983 to parents who both hold Irish passports. My husband holds and always held Irish passport himself, travels on it and has never had a British passport.

McCarthy clearly does not apply to him. Your husband has always identified as an Irish citizen. And he has worked, so he has exercised his treaty rights.

You may have to be refused and then appeal.

That is true. But I read the new amendment and it says that the definition of an EEA national is someone who is a citizen of an EEA state while not being British national at the same time.

I guess my confusion is..can someone born in Northern Ireland be regarded as just Irish and not British or at least only incidentally British?

Looks like our options are...

A. Renounce any claims to British citizenship and go via EEA route

Or

B. Husband gets his British passport and we go via UK marriage visa route.

Is that anywhere close to making sense? I honestly don't know.

[catsintrees]

a man who was born in Northern Ireland in 1983 to parents who both hold Irish passports. My husband holds and always held Irish passport himself, travels on it and has never had a British passport.

McCarthy clearly does not apply to him. Your husband has always identified as an Irish citizen. And he has worked, so he has exercised his treaty rights.

You may have to be refused and then appeal.

That is true. But I read the new amendment and it says that the definition of an EEA national is someone who is a citizen of an EEA state while not being British national at the same time.

I guess my confusion is..can someone born in Northern Ireland be regarded as just Irish and not British or at least only incidentally British?

Looks like our options are...

A. Renounce any claims to British citizenship and go via EEA route

Or

B. Husband gets his British passport and we go via UK marriage visa route.

Is that anywhere close to making sense? I honestly don't know.

We're going to apply first and see what they say regarding my nationality. After that we will probably consider living in another EU state for 6 months and returning under the Singh rules because we're slightly edgy about renouncing British citizenship (there's no real advantage to it at present, but we're not sure what consequences there might be.)

[Debgb]

[quote/]We're going to apply first and see what they say regarding my nationality. After that we will probably consider living in another EU state for 6 months and returning under the Singh rules because we're slightly edgy about renouncing British citizenship (there's no real advantage to it at present, but we're not sure what consequences there might be.)[/quote]


Very best of luck to you Catsintrees. Moving to another EU country is not really an option for us as we are quite settled here in London.

Does anyone know if securing British passport/ Renouncement of claim to British citizenship shortly before applying for UK Marriage visa / EEA2 would have any adverse effect on the decision process?

[Directive/2004/38/EC]

In my opinion, it would be a really stupid idea to renounce your British citizenship, or to even consider it. There are far better/faster/cheaper options. Do not cut off your nose to spite your face!

Also, the changes in the law are way beyond the ECJ ruling in McCarthy and can be challenged!

[Obie]

If your reject British Citizenship, the UK may still reject, on the basis of abuse, and the fact that the renounciation was an artifical act aimed at securing Residency.

It may still bring you within the scope of McCarthy.

[Directive/2004/38/EC]

If your reject British Citizenship, the UK may still reject, on the basis of abuse, and the fact that the renounciation was an artifical act aimed at securing Residency.

It may still bring you within the scope of McCarthy.

Hard to see how this would work.

If the person was not British and was a citizen of another EU member state, and was working in the UK, then McCarthy clearly would not apply.

[Obie]

Mccarthy concerned artifical conduct, aimed at securing Residency. Mrs McCarthy had never moved, therefore irrespective of whether or not she rejected her British nationality, she would not qualify.

I know legal experts may hold views similar or contrary to the one i expressed, but that is law. At the end of the day, it boils down to which party can convince a judge better, that their argument is correct.

The court emphasised in Mccarth, that she had been in the UK all her life as British and only secured Irish passport to aid her husband's application.

Party for the OP can argue Chen, and other.

UK may argue McCarthy, that this man, save for the artifical conduct, was a British, and the primary reason was to secure residency, and not because he intend to pick up another nationality from another country.

Article 35 of the Directive is present, and recently, i have seen the UK using it, in order to derogate from their duty to accept residence card from another country.

Directive, i am not saying i am write or your views are wrong, but this case is not clear cut, and might get to the CJEU.

[Debgb]

Yes, a bit edgy about renunciation to be honest.

Spoke to a solicitor who advised that in light of the recent amendments, EEA application through a dual citizen will likely be rejected. He suggested to go via the Marriage visa route.

So husband thinking of securing a UK passport now to assert his Britishness. We may apply for Marriage visa on the premium service..and if they reject on the basis that he is Irish...that would be strong ground for EEA application. Or so I think!

[Obie]

Irish nationals are considered present and settled from their first day in the UK. No need for them to have British passport. His Irish passport will suffice under national rules. In any event, he has been in the UK for well over 5 years.

[Debgb]

Irish nationals are considered present and settled from their first day in the UK. No need for them to have British passport. His Irish passport will suffice under national rules. In any event, he has been in the UK for well over 5 years.

Do you suggest then we go the Marriage Visa route? Is it possible without a UK passport?! Will securing one help/hinder the process?

Yes, my husband has basically lived his whole life in the UK (NI and England).

[Obie]

Marriage visa rute is certainly possible, but i don't think it is the right route.

Under the Good friday agreement, Residents of N. Ireland are free to choose whether the affiliation lies with Loyalist or Nationalist. By this, they can choose which category they wished to be recognised as.

I am sure an EEA application should succeed. The British State cannot impose loyalist views on a person, who choose to be a nationalist. It is highly controversial.

To tell a Northern Irish person, who does not choose to associate his/herself with the crown, is a serious business. It may amount to breach of their right under the Good Firday agreeent.

Imagine Gerry Adams been told he will only be considered as British Citizen.

By renouncing it, you are essentially acknowledging you once held a British nationality. It is then difficult to challenge it.

[Jambo]

I concur.

If you never exercised your British nationality, I don't think the HO would challenge that.

Apply for EEA2 as Irish only. I would tend not to tick "are you a British citizen?" in the form.

[Directive/2004/38/EC]

Spoke to a solicitor who advised that in light of the recent amendments, EEA application through a dual citizen will likely be rejected. He suggested to go via the Marriage visa route.

So husband thinking of securing a UK passport now to assert his Britishness. We may apply for Marriage visa on the premium service..and if they reject on the basis that he is Irish...that would be strong ground for EEA application. Or so I think!

I would think it would make sense to do it the other way around.

Do NOT create any false sense of being British. Instead, in accordance with McCarthy, apply for an EEA law RC. Include clear a cover letter that your husband was born Irish, has only ever exercised his rights as an Irish citizen, and has worked in the UK. Ask for the immediate return of your passport while the application is being processed. Tell them that if they refuse your application, you will appeal and win. Apply and see what they say. And if they refuse you, then appeal.

I think you might be initially refused. But I think your solicitor is wrong and you will win on appeal.

In the mean time you can continue living and working or studying in the UK.

[Obie]

I must say that this will be a good case or argument for Irish citizens born in Northern Ireland.

A child born of a Spanish Citizen, who has lived in UK for several years, who parents secured PR before he'she was born, may have a difficulty fighting this, irrespective of whether or not, he'she holds a British passport.

It is noteworthy also, that the question is " Does you EEA national hold British Citizenship" and not whether they hold British Passport or Proof of British Citizenship.

[Directive/2004/38/EC]

Apply for EEA2 as Irish only. I would tend not to tick "are you a British citizen?" in the form.

This makes me think...

The applicant can also NOT use the standard form. Instead just write a cover letter with the core information, which says that EU citizen is Irish and is working, provide the required evidence of working, and do not even mention UK citizenship.

This is less likely to get challenged I suspect, and if it is then you can provide the full explanation as to why McCarthy does not apply.

The downside is that this is a perfect test case for the UK rules not matching McCarthy and so this perfect test case might never get tested.