More info on British/Irish dual citizenship for EEA family permit

[Robert86]

found some information from the freedom of information act:

the ECJ determined that a person who holds the nationality of the host Member State and has never exercised their right of free movement and residence do not benefit from the terms of the Free Movement Directive. This is regardless of whether or not they hold dual nationality with another EEA member state. This also means that family members are also unable to derive a right of residence under the Directive on the basis of their relationship to such a national.

3. The intention is to amend the Regulations to reflect the terms of the McCarthy judgment. However, until the Regulations are amended, people who hold British nationality and the nationality of another EEA State must continue to be allowed to rely on that other EEA nationality to benefit from the Regulations.

4. This is because regulation 2 of the Regulations does not currently prevent a British national from relying on their other EEA nationality to come within the scope of the Regulations when they are also a British national. Instead, regulation 2 simply defines EEA national as a national of an EEA and defines an EEA State as:

(a) a member State, other than the United Kingdom,
(b) Norway, Iceland or Liechtenstein, or
(c) Switzerland.

Assessing cases until the EEA Regulations are amended
5. Until such time as regulation 2 is amended, then for all purposes, the current position must be maintained. Caseworkers will need to continue to treat dual British/EEA nationals as though they are EEA nationals when considering an application for documentation under the Regulations. Evidence of the EEA nationality must be provided.

[grahamw48]

Hmm...better take advantage now then.

[Terpe]

The info already posted for you highlights that any dual British/Irish citizens thinking of using this route need to be aware that The European Court of Justice has already handed down it's ruling on this and has dismissed an appeal based on the case of McCarthy v Secretary of State for the Home Department -Case C-434/09

This means that dual nationals living in a country of their nationality who have never exercised free movement rights cannot rely on European rules.

Currently, the Home Office are still granting EEA family permits and residence cards to family members of persons in this situation.
However, as previously mentioned the status granted is not legally held, it is solely policy decision by the Home Office and this could change anytime.
With all the changes to Immigration Rules just now it's a totally unpredictable situation.
But, it really must still be worth the effort to apply, especially as there is no financial cost.

Many have already successfully applied under this route without any problem.

[Robert86]

yes fingers crossed Terpe.. if all fails i will have to cross the border and live for a short while.. if needs must!

[Iani]

Stupid question perhaps Robert, but could you not say live in Eire - must be plenty of nice villages near the border, some friends of mine live in Muff and say it's beautiful, BUT continue to commute to work in Belfast.

Then, you're living in the republic, but keep your job where it is.

Actually, just looking on Google Maps, it looks an awful long distance, same as me working in say Liverpool. Maybe it IS a stupid question.
Was just trying to throw ideas at you to see if any could be of help

[Robert86]

hi guys, today i contacted UKBA not once but twice, i told them my situation, they said even though i havent lived there i have irish citizenship its should be ok, using my irish passport.. but they said to contact the embassy in manila as it is them that makes the decisions and issues the EEA family permit, to find out for sure all the qualifying requirements, so maria will call later.. fingers crossed.

[Terpe]

hi guys, today i contacted UKBA not once but twice, i told them my situation, they said even though i havent lived there i have irish citizenship its should be ok, using my irish passport.. but they said to contact the embassy in manila as it is them that makes the decisions and issues the EEA family permit, to find out for sure all the qualifying requirements, so maria will call later.. fingers crossed.

Tread very carefully Robert.

As you now know, technically/legally and following the court ruling in the case of McCarthy v Secretary of State for the Home Department (Case C-434/09) any status you MAY be granted is solely a policy/discretional decision by the Home Office.

If it were me I would not go shaking that particular can of worms.

No offence Robert just trying to help.

[Robert86]

i contacted VFS in manila today explained the situation, was told as long as you use your irish passport your wife may apply for an EEA family permit, fingers crossed..

[Robert86]

she was also not exercising her rights, which includes working.. she was on benefits and had no savings.. my case is slightly different, i was reading from other threads and websites that guys in my same position also had their permits accepted.. only time will tell.

[Manila_Paul]

This is an interesting one. I'm an Irish citizen through my parents but was born in the UK and raised here. However, I did spend some time in Ireland for 6 months a few years back during my career break. During that time I actually applied for and got my Irish passport issued there. I even got a PPS, the Irish version of the National Insurance Number. Although actually worked there. Does this mean I could be regarded as someone who exercised their right to free movement? I realise I can apply anyway but I'm wondering if it might help?

From the research I've done so far - is it right to say that the transfer to the residence card after 6 months is fairly straightforward? And then a 5 year wait before an application for indefinite leave to remain can be made WITHOUT going through any of the new immigration rules?

I think I'm going to have to give this a bash as well! The main reasoning behind the quickness of the decision, more than the other advantages.

[Manila_Paul]

By the way, does anyone have the information on what these transitional rules/arragements are before the McCarthy 'if you're also British then you're only British' rules come into effect?

[Manila_Paul]

Ah right, so I think I've found the detail here: http://www.legislation.gov.uk/uksi/2012/1547/made

(2) Paragraph 1(d) of Schedule 1 to these Regulations will come into force on 16th October 2012

...which is...

(d)in the definition of “EEA national” after “a national of an EEA State” insert “who is not also a United Kingdom national”

So essentially British dual citizens will be considered on the 2006 regulations until that date?

[Terpe]

Yes, the Home Office has now closed that particular route.
British citizens living in UK are not EEA nationals for the purpose of the European rules so their family members don't qualify and need to apply under the national rules.

There's always a 'risk' for dual British/Irish citizens thinking of using this route in that the ECJ has previously handed down it's ruling on this based on the McCarthy case

Up to now the Home Office took the decision to use discretion in granting EEA family permits.

Always remember that this means that the status granted is not legally held, it is solely a policy decision by the Home Office, and may or may not be granted.

Having said all that, I personally believe that this route is well worth the risk to apply, after all, there is no financial cost, just the actual decision and waiting time is an unknown factor.

The EEA family permit is principally a "right" and so in principle there is no need for the EEA national to have money, to have suitable accommodation, to have been married for more than a day or to have the spouse pass any English Language test.

If you already have a valid Irish passport I would say get the application submitted pretty quickly in order to be sure to meet that October deadline, with some spare time to re-apply in the case that the HO decides to refuse.

[Gretta]

Hello. I myself applied for Residence Card last July under EEA rules because my husband is an Irish national but living here in the UK for more than 30 Years now. I'm still awaiting for the result. Hope they'll grant my application.

[Manila_Paul]

Hello. I myself applied for Residence Card last July under EEA rules because my husband is an Irish national but living here in the UK for more than 30 Years now. I'm still awaiting for the result. Hope they'll grant my application.

Is that for the EEA2?

Just going through the form now for the initial EEA permit - I note a return date has to be submitted? I'm guessing this should be 6 months after entry, even if you're planning to apply for the residence card? That also makes me a bit nervous of the 'purpose of visit' question? What should this actually be? Settlement? Despite stating a return after 6 months?

Terpe, on this point:

Always remember that this means that the status granted is not legally held, it is solely a policy decision by the Home Office, and may or may not be granted.

Just wondering, considering the above post, could they potentially turn down the EEA2 even after granting the initial permit? After all, a change in policy would mean such applications would fall foul of the changes? Or would they have to be consistent?

[Terpe]

Terpe, on this point:-
Always remember that this means that the status granted is not legally held, it is solely a policy decision by the Home Office, and may or may not be granted.

Just wondering, considering the above post, could they potentially turn down the EEA2 even after granting the initial permit? After all, a change in policy would mean such applications would fall foul of the changes? Or would they have to be consistent?

I'm not sure I really understand what you asking....... that quote relates to the Home Office position after the ECJ McCarthy ruling but before the current ruling.

As it stands right now the law that states that a transitional period exists until 16th October after which time:-

An EEA national is therefore now defined in amended regulation 2(1) as “a national of an EEA State who is not also a United Kingdom national”.

If you're wanting to try this route you'll need to get the application submitted asap.
Do you hold have Irish Citizenship and Irish Passport?

Once you have been granted entry to UK (Family Permit) residence is legally automatic, however personally I would always suggest making application for a residence card.

That form is very badly designed. UKBA use it as a generic 'one-size-fits-all' form without any explanation of the differences in category of application.

The form can make it look as though there are more requirements than there are, also the online form may deviate from the paper from slightly.
The EEA Family Permit is applicable whether you want to visit the UK for a short trip or even for taking permanent residence.
It asks question relating to all sorts of different situations instead of just specific requirements.
Personally I feel there's a lot of questions on that form that goes so far beyond the spirit of EU Treaty right and that it may actually violate European law, but that's just an opinion of a grumpy old man.

If you have any desire to read the full UKBA 'Internal Guidance' then it's here

Enter a date that you believe will be the very earliest your wife plans to enter UK. The visa will be dated from that date when she says she wants to travel (Family Permits are supposed to issued very quickly)

Enter any date, say 4-6 months from the date she plans to enter UK.
The EEA Family Permit for the EEA-national partner will be issued for 6 months.
During that time she will be expected to apply for a Residence Permit from UKBA.

Actually the specific date does not matter. She will not be an overstayer. She can stay as long as she wants. As I previous suggested though better to apply for the residence permit though.

I'm sorry for the long answer but the reason is just that when filling out the form online by not correctly completing all the boxes you often cannot move to the next page of the form.

I can't remember if the new forms have changed significantly or not but if there's a space somewhere then your wife you can write that she intends to stay in UK with you (her husband) permanently.

Hope that helps.
If you feel you need confirmation on anything just check with UKBA.
I know others have done that too.