Dual nationality NI(uk)/Irish and non-eea (usa): Success!

[jbminger]

Hello,

Do you think I qualify for the EEA route?

I am an American citizen.
My wife is British/Irish (currently she holds only an Irish passport).
We have been living in the US for the past 6 years.
We were married 7.5 years ago in Northern Ireland, I was granted a UK marriage visit visa.

After the wedding, we lived/worked in Dublin, Ireland for 1.5yrs before moving to the US.

below is regulation 9, taken from http://www.legislation.gov.uk/uksi/2006 ... ion/9/made

It would appear as per regulation 9, that as we were living/working together in Ireland, before returning to the UK, that I would qualify.

Please share your thoughts. Thanks!

Family members of United Kingdom nationals

9.—(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a United Kingdom national as if the United Kingdom national were an EEA national.

(2) The conditions are that—

(a)the United Kingdom national is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom; and
(b)if the family member of the United Kingdom national is his spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in that State before the United Kingdom national returned to the United Kingdom.

(3) Where these Regulations apply to the family member of a United Kingdom national the United Kingdom national shall be treated as holding a valid passport issued by an EEA State for the purpose of the application of regulation 13 to that family member.

[chaoclive]

Hi

I really not sure about the timings and if it counts or not. But it seems that what you are looking at is the Surinder Singh route?

Something that complicates your situation is that she has an Irish passport and lived in Ireland (therefore, not exercising treaty right as she resided in a state of which she is a national).

However, because she only has an Irish passport at present, she would be able to apply under EU Treaty Rights to bring you into the UK. This is not affected by the fact that she was living in Ireland, but by virtue of the fact that she ONLY holds an Irish passport (irrespective, I think) of the fact that she was born in N. Ireland and is eligible for British Citizenship.

I am also a dual Irish/British citizen from N. Ireland (with both passports) and I am suffering due to this at the moment. I'm really considering giving up Irish citizenship and taking my civil partner to Ireland. As you probably know, under the Good Friday Agreement the people of N. Ireland can choose to identify as Irish/British or both.

Please remind your wife not to activate her British citizenship, otherwise you will not be eligible to apply under the EU rules (unless under Surinder Singh which you may be look at)! The UK has an "if British; only British" policy. If she is only Irish, they can't enforce this rule. You're situation looks perfect for moving to the UK. However, it wouldn't work so easily for Ireland (of course there is the spouse visa).

Hope this helps in some way
C

[Jambo]

Did she ever held a British passport?

[jbminger]

Yes, she has had a UK passport. The Irish passport was issued to her when she was 18, but she had lived/worked in Ireland for a short time before getting the passport.

And, is it not true that having a passport or not having a passport has no bearing on your citizenship.

[Jambo]

North Ireland is unique as people born there could claim to be Irish only / British only or both. It seem that your wife is both and it that case, using the EEA route as Irish would prove to be problematic.

With regards to Regulation 9, it is not clear how the HO would see such a long break since she exercised treaty rights and moved home. See OB although there it was only a 13 months gap.

[chaoclive]

Actually, Jbminger, I have asked the question about having or not having a passport to both the UKBA and INIS and both of them have confirmed that, in the case of Northern Ireland, having or not having a passport DOES make a difference to whether or not you have citizenship. This was around June 2012. The only issue about Northern Ireland is that it is typically part of teh UK so the UK national regulations apply (i.e. an Irish spouse visa doesn't give the right to live in the UK).

You might want to check with them by yourself. Your wife can legally renounce either passport (but the process for getting the UK one back is difficult).

[vinny]

In the case of British passports:

Passports are issued under the Royal Prerogative in the discretion of the Secretary of State. They are the property of the Crown, not of the passport holder and may be withdrawn by the Crown at any time. A British passport does not confer citizenship but is merely evidence of it. The Immigration Appeal Tribunal correctly held in Christodoulidou v. Secretary of State [1985] Immigration AR 179 that the conditions of entitlement to British citizenship are a matter of law...

See also Irish nationality laws and Northern ireland.

[chaoclive]

I understand this, but I would urge the OP to go to the UKBA or INIS and clarify the situation. In 2012, I was told that, as I fall under the conditions of the Good Friday Agreement I can choose to be either British or Irish, or both.

Please note, that this evidence in the COANI link was used as a way to withdraw British citizenship from a lady who was, in fact, not entitled to it. It does not clarify the situation in Northern Ireland re: choice of nationality.

You've presented evidence about the UK. If you could find the same about Ireland, I'd love to see that!

[vinny]

With British citizenship:

“the United Kingdom” means Great Britain, Northern Ireland and the Islands, taken together;

Moreover, an Irish national is deemed as settled in the UK on arrival.

So, 1(1) may be applicable.

[chaoclive]

Thanks for this (although there's nothing there I didn't know already).

I think the key is: "The CTA entitlement does not prevent reliance on EEA free movement rights where they are more favourable." The two countries are separate sovereign states with their own nationality laws and, being different member states (despite the CTA), being a citizen of one of these states enables the member to avail of EUTR in the other, e.g. Irish citizen bringing a non-EEA partner to the UK and vice versa.

It still seems that it's important to confirm with the Home Office before a request for an EEAFP for a non-EEA national is made on the basis that he/she is married to an Irish national.

I will put in a request under FOI to see how the Home Office deal with this in practice.

Best
C

[EUsmileWEallsmile]

Thanks for this (although there's nothing there I didn't know already).

I think the key is: "The CTA entitlement does not prevent reliance on EEA free movement rights where they are more favourable." The two countries are separate sovereign states with their own nationality laws and, being different member states (despite the CTA), being a citizen of one of these states enables the member to avail of EUTR in the other, e.g. Irish citizen bringing a non-EEA partner to the UK and vice versa.

It still seems that it's important to confirm with the Home Office before a request for an EEAFP for a non-EEA national is made on the basis that he/she is married to an Irish national.

I will put in a request under FOI to see how the Home Office deal with this in practice.

Best
C

From reading this post, I suspect there may be some confusion.

Irish nationals can and do exercise freedom of movement in the UK. They can bring their spouses with them. There is no dubiety on this point.

What is an issue is those British citizens who also hold Irish nationality who wish to use directive 2004/38/ec without ever having left Britain.

[chaoclive]

There's no confusion.

Actually what I am talking about is a citizen holding a single nationality, not a dual national. I, being a dual national myself, understand fully the ins and outs of the limits of dual nationality under EUTR.

[EUsmileWEallsmile]

Actually what I am talking about is a citizen holding a single nationality, not a dual national.

There's certainly no confusion with regards to a person holding a single nationality. None whatsoever. No need to make FOI requests.

[chaoclive]

What was questioned above is if a person born in Northern Ireland who identifies solely as Irish (and by virtue has no British passport) is looked upon as being a British citizen under UK nationality law (according to the links provided above). Let's suppose this person has never moved outside NI.

I am of the opinion that no-one in Northern Ireland can be forced to be British by virtue of being born in NI and, therefore, they should be treated as solely Irish for the purposes of EEAFP applications (even though they have technically not moved outside their country of residence, which is the UK). However, there seems to be some disagreement about this. Let's not complicate matters here about Irish passport holders who live in GB - they are often unrelated to NI and have moved outside their normal country of residence. Also, let's not involve the CTA just now.

I have already submitted the FOI but please don't hold your breath for a response any time soon (even within the FOI deadline). Many people have outstanding requests in with the HO. Some of these have passed the FOI deadlines and are still awaiting internal review. I am going to compose a complaint to the ICO right this minute about a request that I lodged in mid-July.

[jbminger]

My vote would tend to be that my wife is a dual citizen, even if she does not have a valid UK passport at the moment. She was able to get Irish citizenship from the Good Friday Agreement.


From EUN2.16 Can family members of dual British / Irish nationals qualify for an EEA family permit?:

Where a person has applied on the basis that they are a dual British citizen/EEA national on or after 16 July 2012 then the application must be refused unless the person either:

1. Meets the provisions of regulation 9 (which gives effect to the ECJ case of Surinder Singh or

2. Comes within the scope of the transitional arrangements set out below.

I am still hopeful that I will be granted the EEA FP upon application, because my wife and I did live/work in Ireland. She was not simply resident in the UK (N.Ireland) with an Irish passport in hand.

[chaoclive]

If you guys want to apply for a UK EEA FP under Surinder Singh she will need to show her British passport. I'm sure you know this already, but just wanted to clarify.

Alternatively, you could benefit from using her Irish passport to apply for an Irish spouse visa. Of course, this would limit you to residence in the ROI (which may not be what you are looking for at this stage). The benefit of the Irish spouse visa is that it allows for naturalization after 3 years (instead of the 5 required under the UK/EEAFP rules), if you were interested in that.

The reason why I'm being so pedantic about this is that I'm trying to clarify my own options.

Look forward to hearing your good news soon

Best from Beijing
C

[jbminger]

At which point would she need to show her UK passport? I actually was not aware that she would need to show it.

Also, if the FP is issued to me, is there any issue with arriving into the Northern Ireland via Dublin?

[chaoclive]

You need to be clear about whether you are applying for:
1) An EEAFP under Surinder Singh for the spouse of a British citizen returning to the UK after a period of work in another member state.
or
2) An EEAFP for the spouse of an Irish citizen


1) If you are applying for an entry visa for the UK at the British Embassy under Surinder Singh your wife will (at least) have to provide a copy of her British passport or another suitable proof of the fact that she is, in fact, British. If what other posters before me say is true she may well not need to (she may have 'latent' citizenship due to the fact that she was born in NI; however please remember that no everyone born is NI is actually a British citizen), but I can't see the British Embassy granting an EEA FP for the UK to the spouse of an Irish citizen claiming entry under the Surinder Singh route.

The process is the same as a German national applying for a visa to take their spouse to Spain under EUT Treaty Rights. They must have some form of identification that your partner is a British citizen, otherwise anyone could roll up to the Embassy and ask for an EEA FP.

I hope that you know about the other evidence required too, e.g. payslips or contracts of employment/proof of living together etc.

2) If your wife is viewed as solely an Irish citizen, then you would not be providing any evidence of having lived/worked in Dublin in the past. You would simply apply for an EEAFP under the normal rules.

This is why N. Ireland dual citizenship causes confusion!


I hope someone with more experience in Singh applications will confirm if/that what I have said above is true.

________
There will be no problem at all entering via ROI as you don't need a visa for either the UK or ROI.

There may be useful information of some of the documents that you will need to provide on this thread: http://www.immigrationboards.com/viewto ... +documents

and here:
http://britishexpats.com/wiki/Surinder_Singh


You should have a good read through this link:
Supporting documents for an EEA family permit
http://www.ukba.homeoffice.gov.uk/eucit ... documents/

[EUsmileWEallsmile]

What was questioned above is if a person born in Northern Ireland who identifies solely as Irish (and by virtue has no British passport) is looked upon as being a British citizen under UK nationality law (according to the links provided above). Let's suppose this person has never moved outside NI.

I am of the opinion that no-one in Northern Ireland can be forced to be British by virtue of being born in NI and, therefore, they should be treated as solely Irish for the purposes of EEAFP applications (even though they have technically not moved outside their country of residence, which is the UK). However, there seems to be some disagreement about this. Let's not complicate matters here about Irish passport holders who live in GB - they are often unrelated to NI and have moved outside their normal country of residence. Also, let's not involve the CTA just now.

I have already submitted the FOI but please don't hold your breath for a response any time soon (even within the FOI deadline). Many people have outstanding requests in with the HO. Some of these have passed the FOI deadlines and are still awaiting internal review. I am going to compose a complaint to the ICO right this minute about a request that I lodged in mid-July.

I now understand your point. Generally, people who are born in Northern Ireland are British according to British nationality law. The regulations, as drafted, would appear to preclude such a person from benefiting from the immigration (EEA) regulations (except Singh).

[jbminger]

The British Consulate General New York received my completed application yesterday and emailed me today to say that the UK Visa had been issued!

Thanks for all your help. I'm sure I'll seek more help when applying for the RC upon arrival to the UK.

[chaoclive]

Well done!

Which passport did she use？The Irish one?

It would be good to share, as the case of N. Ireland people could be quite different from single nationals.

Wish you all the best in the UK
CC

[jbminger]

Thank you!

She used the Irish passport, as she doesn't hold a valid UK passport currently. We also included her N. Irish birth cert, UK driving license, my expired GNIB Garda Immigration residence card, amongst other stuff...

[chaoclive]

Cool - that worked well and was really fast!

Just a note if you are planning to apply for a residence card on form EEA2. There is a question (re: the EEA national) which reads: "Do they also hold British citizenship?". You may want to plan in advance how you deal with this. You'd be best not to lie (of course you know that) as there are references in the declaration at the end of the form about misrepresentation.

I remember that you were adamant (above) that she does hold BC, even though she didn't have a British passport at the time of application.

Options may include renouncing British Citizenship before applying for EEA2.

I'm sure someone else will have some ideas on this.

Enjoy

[EUsmileWEallsmile]

@ jbminger, apart from the birth certificate, was any reference made to dual nationality?

[jbminger]

@chaoclive - With regards to the Form for EEA2 RC; it is my belief, that in our situation, we are allowed to apply with my wife as a dual UK/Irish citizen. I believe this becuase we have lived in the other member state, Ireland, of which is also a citizen. I will look more closely into it, but at this time I don't believe it would be a problem.

@EUsmileWEallsmile, yes:

Question 41: EEA's nationality: British Citizen
Question 90: EEA NATIONAL'S NORMAL COUNTRY OF BIRTH: United Kingdom
Question 91: EEA NATIONAL'S NATIONALITY: United Kingdom

However, as stated above, my wife does not hold a valid UK passport presently, and so we included her Irish passport along with the application.

and from the cover letter: "My wife is a dual Brtish and Irish citizen."

We also included my wife's UK driver license.