Dual national, document proving permanent residence

[BigT1]

Hi everyone,

I am applying for EEAPR for my wife (Thai national) as a dual national of uk/Ireland carrying both passports.

My wife has lived with me in NI for 5.5 years, her uk residence card eea law expired in dec 2016 but as she was here before the McCarthy case she can apply.

My question is, in the application it asks do you have a document certifying permanent residence, my intention is to answer yes, as in my British passport or my birth cert as I was born in NI.

Will this be acceptable as it in turn allows me to avoid all the messy p60 for 5 years evidence which I don't have.
Thanks in advance!

[Richard W]

My question is, in the application it asks do you have a document certifying permanent residence, my intention is to answer yes, as in my British passport or my birth cert as I was born in NI.

Will this be acceptable as it in turn allows me to avoid all the messy p60 for 5 years evidence which I don't have.

You may have acquired permanent residence in 2006 as the result of an Irish parent having been a worker in the UK for 5 consecutive years. Just living in the UK for 5 years as an Irish citizen does not earn you permanent residence.

[BigT1]

I was born in northern Ireland and hold a British passport from birth so surely I already am a permanent resident

[Richard W]

I was born in northern Ireland and hold a British passport from birth so surely I already am a permanent resident

I don't think so. Certainly an EEA citizen who is settled here is not necessarily a permanent resident. Obvious examples would be a non-British Irishman recently arrived, and a Maltese citizen born in the UK who has never worked or been self-sufficient.

You were only ever able to use the Irish route because the UK government did not understand EU law. Your wife's rights derive not from EU law but from the EEA Regulations, and in particular

.., P will, notwithstanding the effect of the definition of an EEA national in regulation 2, be regarded as an EEA national for the purpose of these Regulations...

Now, as an EEA national is,

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

In other words, you are relying on being regarded as someone who is not British. Therefore you can't claim to be a permanent resident for the purpose of the EEA Regulations 2016 just because you are British.

Possibly you were thinking of the case of Eind, where it was declared that there was no requirement for a Surinder Singher to be a "qualified person" in his home country. The UK government has unilaterally declared that ruling invalid by the 2016 version of the EEA Regulations.

[Noetic]

Doesn't document certifying permanent residence refer to the official DCPR document you apply for after 5 years of exercising your treaty rights in an EU country?

[Richard W]

And expanding on Noetic's point, if BigT1 didn't apply for a DCPR before 2013, he isn't going to receive one now - he "will only continue to be regarded as an EEA national for the purpose of considering the position of F [= his wife] under these Regulations" - Schedule 6 Paragraph 9(8).

A possible consolation is that under the UK proposals, it looks as though dual nationals will receive the privileges of EU nationals - but that might just be sloppy wording:

EU citizen: Refers to any person who holds EU citizenship as established under Article 20
(1) of the Treaty on the Functioning of the European Union, save that for current purposes,
persons who are EU citizens solely by way of their British nationality are excluded from the
scope of this term. That Article provides “Citizenship of the Union is hereby established. Every
person holding the nationality of a member state shall be a citizen of the Union. Citizenship
of the Union shall be additional to and not replace national citizenship.” However, member
states may withhold EU citizenship from certain groups of citizens, most commonly those in
overseas territories of member states outside the EU.

It's the word 'solely' that makes the big difference. The OP is not solely an EU citizen because he is British, but also because he is an Irish citizen. The big change in the proposals is that residence will suffice; it will no longer be necessary for EEA nationals to be 'qualified persons' or 'permanent residents'.

[gillacious_505]

And expanding on Noetic's point, if BigT1 didn't apply for a DCPR before 2013, he isn't going to receive one now - he "will only continue to be regarded as an EEA national for the purpose of considering the position of F [= his wife] under these Regulations" - Schedule 6 Paragraph 9(8).

A possible consolation is that under the UK proposals, it looks as though dual nationals will receive the privileges of EU nationals - but that might just be sloppy wording:

EU citizen: Refers to any person who holds EU citizenship as established under Article 20
(1) of the Treaty on the Functioning of the European Union, save that for current purposes,
persons who are EU citizens solely by way of their British nationality are excluded from the
scope of this term . That Article provides “Citizenship of the Union is hereby established. Every
person holding the nationality of a member state shall be a citizen of the Union. Citizenship
of the Union shall be additional to and not replace national citizenship.” However, member
states may withhold EU citizenship from certain groups of citizens, most commonly those in
overseas territories of member states outside the EU.

It's the word 'solely' that makes the big difference. The OP is not solely an EU citizen because he is British, but also because he is an Irish citizen. The big change in the proposals is that residence will suffice; it will no longer be necessary for EEA nationals to be 'qualified persons' or 'permanent residents'.

As highlighted in bold. Does that means that there is no safeguard proposals for Surinder Singhers within the cut-off date?

So does that means Surinder Singh holders have no guarantee whatsoever for permanent residency even if they happen to be in the UK before the cut-off date?

[Richard W]

As highlighted in bold. Does that means that there is no safeguard proposals for Surinder Singhers within the cut-off date?

So does that means Surinder Singh holders have no guarantee whatsoever for permanent residency even if they happen to be in the UK before the cut-off date?

Only protected under the EU27 proposal.

[gillacious_505]

As highlighted in bold. Does that means that there is no safeguard proposals for Surinder Singhers within the cut-off date?

So does that means Surinder Singh holders have no guarantee whatsoever for permanent residency even if they happen to be in the UK before the cut-off date?

Only protected under the EU27 proposal.

Even the EU27 proposal is not explicit at all for protecting their rights. HO is known for their sneakiness.
They will still manage to ignore the SSinghers even if they agree to EU27 proposal.

[Richard W]

As highlighted in bold. Does that means that there is no safeguard proposals for Surinder Singhers within the cut-off date?

So does that means Surinder Singh holders have no guarantee whatsoever for permanent residency even if they happen to be in the UK before the cut-off date?

Only protected under the EU27 proposal.

Even the EU27 proposal is not explicit at all for protecting their rights. HO is known for their sneakiness.
They will still manage to ignore the SSinghers even if they agree to EU27 proposal.

There are a few non-working EU27 wives whose residence in the UK is only lawful because of Surinder Singh. Now, they will be covered under June's UK proposal, but only via Surinder Singh under the EU27 proposal. They might well depend on the protection of the ECJ.

Now, the typical Surinder Singh spouse beneficiary is a non-EEA national who depends on both Surinder Singh and Metock. If the UK had voted to remain in the EU, such spouses would have depended on the promised changes in the Citizens' Directive not being retrospective. It's entirely possible that Metock will be reversed in part in the negotiations.

[gillacious_505]

As highlighted in bold. Does that means that there is no safeguard proposals for Surinder Singhers within the cut-off date?

So does that means Surinder Singh holders have no guarantee whatsoever for permanent residency even if they happen to be in the UK before the cut-off date?

Only protected under the EU27 proposal.

Even the EU27 proposal is not explicit at all for protecting their rights. HO is known for their sneakiness.
They will still manage to ignore the SSinghers even if they agree to EU27 proposal.

There are a few non-working EU27 wives whose residence in the UK is only lawful because of Surinder Singh. Now, they will be covered under June's UK proposal, but only via Surinder Singh under the EU27 proposal. They might well depend on the protection of the ECJ.

Now, the typical Surinder Singh spouse beneficiary is a non-EEA national who depends on both Surinder Singh and Metock. If the UK had voted to remain in the EU, such spouses would have depended on the promised changes in the Citizens' Directive not being retrospective. It's entirely possible that Metock will be reversed in part in the negotiations.

God only knows what will transpire in the negotiations and ultimately what would be fate of those people. With Tories clearly making the role of ECJ role as the red line seems more like an ego problem for tories keeping everything at stake.