I have Dual Citizenship -Wife non EU . 5 years Visa finishes ...

[chaoscontrol]

Hello, anybody please help ! We are in very strange situation :
1. My Wife had `EEA Family permit` in December 2012 , she come here in that december straight away to live here with me .
2. she applied for 5 years `residence card` (its called EEA2 I think) and she received that in 15 April 2013
3. I became British Citizen on 14 Oct 2016
4. In April next year her 5 year visa will expire (need to be renewed ?) ..

What do she need to do now please ? Apply for PERMANENT Resident Card ? Do she will be refused that one on the grounds that I am British Citizen/Dual Citizen ? If this is the case , then can she renew/apply for the same 5 years residence card again ? or she will be deported out of the UK ? (The Wife cant sleep properly and very worrying because of that ...)
We also have a 1 year old baby , who is British citizen , so the Family will be broken if she will be not allowed to stay in UK ...

Any explanations will be very much appreciated ! sorry if I am missing something as unfortunately I had not much time to keep an eye on UK Law changes for the last couple of years ... Thanks in advance for any answers !

[Obie]

She may qualify for Permanent Residence in Dec 2017. Still awaiting changes to the regulation, as they do not cover her in its present state.

[chaoscontrol]

She may qualify for Permanent Residence in Dec 2017. Still awaiting changes to the regulation, as they do not cover her in its present state.

Hi , thanks for answer ,is this because of Mr. Lounes case ? or anything else ? when you said `still awaiting changes to the regulation` did you mean that the Law need to be changed in her favour ?
if they will not modify it -then what we need to do please ? still apply to PR (EEA4) ? Thanks

[AdInfernos]

In my opinion, and I should say I'm not an expert, she should submit her application in December and include a cover letter explaining how the decision in Lounes would apparently cover her situation.

Otherwise, if she gets a refusal, the case should have to be taken to the courts for them to decide is the law in the Lounes case is applicable to your wife.

[mia777]

I'm in a similar situation and was actually just going to post something similar.

My wife is an EEA national but hasn't yet applied for citizenship.

I am a citizen of a non EEA country and have an EEA2 residence card as an extended family member (this was before we got married).

Is it worth it for her to apply for citizenship and potentially end up in a situation like that described in this thread? Or should she wait until the immigration picture is a bit more settled and I can apply for confirmation of permanent residence in the normal way.

[chaoscontrol]

In my opinion, and I should say I'm not an expert, she should submit her application in December and include a cover letter explaining how the decision in Lounes would apparently cover her situation.

Otherwise, if she gets a refusal, the case should have to be taken to the courts for them to decide is the law in the Lounes case is applicable to your wife.

hi thank you for answer. His case is just about direvative right to stay in Country (Am I right?) but what about Permanent Residence Card ? Do my wife are eligible or not ? I always been working in UK , so exercising treaty rights and she lived with me for 5 consecutive years (since 26 December 2012) , so she must apply for a Permanent residence card or there is something I don`t know which could stop her from doing that ?

[AdInfernos]

Paragraph 60 of the decision states:

In view of all the foregoing, the answer to the question is that Directive 2004/38 must be interpreted as meaning that, in a situation in which a Union citizen (i) has exercised his freedom of movement by moving to and residing in a Member State other than that of which he is a national, under Article 7(1) or Article 16(1) of that directive, (ii) has then acquired the nationality of that Member State, while also retaining his nationality of origin, and (iii) several years later, has married a third-country national with whom he continues to reside in that Member State, that third-country national does not have a derived right of residence in the Member State in question on the basis of Directive 2004/38. The third-country national is however eligible for a derived right of residence under Article 21(1) TFEU, on conditions which must not be stricter than those provided for by Directive 2004/38 for the grant of such a right to a third-country national who is a family member of a Union citizen who has exercised his right of freedom of movement by settling in a Member State other than the Member State of which he is a national.

The key points are:

• The third-country national has no derivative right of residence under Directive 2004/38, but does under Article 21(1) TFEU

• This right must be "on conditions which must not be stricter than those provided for by Directive 2004/38 for the grant of such a right to a third-country national who is a family member of a Union citizen who has exercised his right of freedom of movement by settling in a Member State other than the Member State of which he is a national".

Because the conditions must not be stricter than those provided by the Directive for an EU national exercising Treaty Rights, I understand that this should include all the benefits that the later is entitled to, including that of acquiring permanence residence after 5 years of acquiring the derivative right of residence as a family member of an EU national.

My construction of the decision is obviously open to a different interpretation from anyone who has a more in depth knowledge of how in practice the Home Office deals with cases of family members of an EU national.

[chaoscontrol]

Thanks `AdInfernos` ! This is exactly what I want to know ! if it is as you saying and my non EU wife will receive PR on the basis of that case then it would be great , but apart from that : do somebody know if she is ok to apply for PR in the normal way ? (I mean she`s lived 5 years in here with me start from 26 of December 2012 until 26.12.2017) .
I read somewhere on here that Home Office modified the Law for Dual Citizens in 2012 so do this mean she is not eligible for Permanent residence anymore now ? If somebody able to answer me exactly please ? Do this mean she can`t stay in Uk anymore after her Visa finishes in April ? Somebody could give any advice us please ? We dont know what to do now ...

[AdInfernos]

Thanks `AdInfernos` ! This is exactly what I want to know ! if it is as you saying and my non EU wife will receive PR on the basis of that case then it would be great , but apart from that : do somebody know if she is ok to apply for PR in the normal way ? (I mean she`s lived 5 years in here with me start from 26 of December 2012 until 26.12.2017) .
I read somewhere on here that Home Office modified the Law for Dual Citizens in 2012 so do this mean she is not eligible for Permanent residence anymore now ? If somebody able to answer me exactly please ? Do this mean she can`t stay in Uk anymore after her Visa finishes in April ? Somebody could give any advice us please ? We dont know what to do now ...

Your're welcome. Yes, I think the law was changed so that EU nationals who become British citizens cannot acquire rights under EU law. But the decision of the ECJ says that whereas the EU national cannot in fact rely in EU law for their own benefit, family members can. That seems to be your case.

There is a practical problem here, until the UK changes the relevant secondary legislation, the Home Office may decide to apply the law as they have been doing so far.

Your options are waiting until the UK legislation is changed to reflect the decision of the ECJ, something that may not even happen if we take into account that the UK is exiting the EU, OR, apply now and include a cover letter explaining the decision (and possibly a copy of it that you can print from http://eur-lex.europa.eu/legal-content/ ... 65&from=EN ). If refused, then appeal on the grounds set by the Court decision on 14 November 2017.

I am just a law graduate, not a solicitor, but my opinion is that you have a case here. If you apply and are refused, you should discuss the appeal with a solicitor or at least seek assistance in the appeal from a charity specialised in immigration. A couple of them come to my mind, but I don't think I'm authorised to give details here.

[Obie]

Please you are not permitted to name any firm of solicitors on this forum.

[AdInfernos]

Please you are not permitted to name any firm of solicitors on this forum.

That is something I have not done so far and have no plans to do.

[Wise]

Obei, I don't think this person has mentioned any firm though!

Adlnfernos God will bless you for your time and with full details of advice you gave.

Good luck to the OP.

[Obie]

I did not accuse the contributor of anything.

It appears this individual was debating on whether or not the names of the firms she has in mind can be mentioned.

I am merely stating that she is not permitted. I am not making any accusations of wrong doing.

[chaoscontrol]

Thanks `AdInfernos` ! This is exactly what I want to know ! if it is as you saying and my non EU wife will receive PR on the basis of that case then it would be great , but apart from that : do somebody know if she is ok to apply for PR in the normal way ? (I mean she`s lived 5 years in here with me start from 26 of December 2012 until 26.12.2017) .
I read somewhere on here that Home Office modified the Law for Dual Citizens in 2012 so do this mean she is not eligible for Permanent residence anymore now ? If somebody able to answer me exactly please ? Do this mean she can`t stay in Uk anymore after her Visa finishes in April ? Somebody could give any advice us please ? We dont know what to do now ...

Your're welcome. Yes, I think the law was changed so that EU nationals who become British citizens cannot acquire rights under EU law. But the decision of the ECJ says that whereas the EU national cannot in fact rely in EU law for their own benefit, family members can. That seems to be your case.

There is a practical problem here, until the UK changes the relevant secondary legislation, the Home Office may decide to apply the law as they have been doing so far.

Your options are waiting until the UK legislation is changed to reflect the decision of the ECJ, something that may not even happen if we take into account that the UK is exiting the EU, OR, apply now and include a cover letter explaining the decision (and possibly a copy of it that you can print from http://eur-lex.europa.eu/legal-content/ ... 65&from=EN ). If refused, then appeal on the grounds set by the Court decision on 14 November 2017.

I am just a law graduate, not a solicitor, but my opinion is that you have a case here. If you apply and are refused, you should discuss the appeal with a solicitor or at least seek assistance in the appeal from a charity specialised in immigration. A couple of them come to my mind, but I don't think I'm authorised to give details here.

Firstly I must Thank you again for spending your time to explain these things about the Court decision from the Mr Looney`s case to me (and many Dual UK Citizens who are in the same situation), that is a Great Help from your side and may help many many people when they read this !
However I am still not in full understanding about `the change of laws` in 2012 which could affect Home Offices decision to grant PR card to my Wife or not .. Can you explain this please ?
As much as I understood from reading on this forum is : from October 2012 family members of Dual UK/EU citizens (my wife for example) CAN`T rely on the EU directive anymore and any family member who started to live in the UK after that October date will be not eligible for Permanent Resident Card anymore ? Am I right ? Can you correct me please if I am wrong in there , because my Wife joined me in UK on 26 December 2012 (as per her Family Permit Visa which started 12 of December 2012) , so if this is the case - that may mean she is 2 months TOO LATE to came here and join me and may be refused a PR on that basis ? sounds ridiculous ...

[chaoscontrol]

anybody able to answer my last question please ? thanks in advance

[AdInfernos]

I think that your question has already been answered, but here we go in a different way:

I 2012 the UK implemented into its domestic legislation the ECJ decision in McCarthy C-434/09. This was basically that EU citizens who become British citizens cannot rely anymore on EU law, including the right to bring family members to the UK. That is how the law stands currently in the Immigration (European Economic Area) Regulations 2016.

However, the ECJ decision on Lounes C-165/16 changes that. Now family members of an EU citizen who becomes British keep their rights under EU law. The decision is clear in that aspect and is binding for UK courts and tribunals. Even before the government changes the Immigration (European Economic Area) Regulations 2016, you can rely on it because decisions of the ECJ are binding law for the UK.

The problem here is that the caseworker of the Home Office is not a lawyer, and unless some guidance has been made to the effect that this latest ECJ decision is implemented, normally a caseworker will apply UK law, that is, the Immigration (European Economic Area) Regulations 2016, and then refuse the application.

Will a cover letter explaining the law change the above? I don't know. Probably not as it is likely that unless specific guidance is issued, the caseworker will apply the existing UK secondary legislation.

So, what can you do? Well, if you apply and the application is refused, you have a right of appeal. And here is where the tribunal will be bound to apply Lounes C-165/16 and overturn the Home Office decision.

Why have the ECJ decided differently in Lounes C-165/16? Because in Lounes, the British citizen is also an EU citizen who has already exercised treaty rights by moving to another EU country (the UK) and keeps her original EU citizenship as well as the new British. In McCarthy, a UK citizen applied for an Irish passport and also become a dual citizen. However, he had never exercised treaty rights in another EU country as a British citizen, hence the court thought that he could not rely on EU law as he had never exercised rights under EU law.

Hopefully you will understand it this way .

[Richard W]

I 2012 the UK implemented into its domestic legislation the ECJ decision in McCarthy C-434/09. This was basically that EU citizens who become British citizens cannot rely anymore on EU law, including the right to bring family members to the UK. That is how the law stands currently in the Immigration (European Economic Area) Regulations 2016.

The McCarthy case was not about an EU citizen who became a British citizen. It was about British citizens who happened to have another EU citizenship, from birth in this case. It could very reasonably be extended to people who had been living in the UK as British citizens and then acquired another EU citizenship, as is possible with Irish citizenship for many people in the UK. A common trick at the time was for British citizens who were entitled to Irish citizenship to take up Irish citizenship, and then bring a foreign spouse in under the EEA rules.

At the time, it was widely believed that the Home Office had interpreted the judgement too restrictively; the Lounes case shows that the critics' belief was correct.

[chaoscontrol]

I think that your question has already been answered, but here we go in a different way:

I 2012 the UK implemented into its domestic legislation the ECJ decision in McCarthy C-434/09. This was basically that EU citizens who become British citizens cannot rely anymore on EU law, including the right to bring family members to the UK. That is how the law stands currently in the Immigration (European Economic Area) Regulations 2016.

However, the ECJ decision on Lounes C-165/16 changes that. Now family members of an EU citizen who becomes British keep their rights under EU law. The decision is clear in that aspect and is binding for UK courts and tribunals. Even before the government changes the Immigration (European Economic Area) Regulations 2016, you can rely on it because decisions of the ECJ are binding law for the UK.

The problem here is that the caseworker of the Home Office is not a lawyer, and unless some guidance has been made to the effect that this latest ECJ decision is implemented, normally a caseworker will apply UK law, that is, the Immigration (European Economic Area) Regulations 2016, and then refuse the application.

Will a cover letter explaining the law change the above? I don't know. Probably not as it is likely that unless specific guidance is issued, the caseworker will apply the existing UK secondary legislation.

So, what can you do? Well, if you apply and the application is refused, you have a right of appeal. And here is where the tribunal will be bound to apply Lounes C-165/16 and overturn the Home Office decision.

Why have the ECJ decided differently in Lounes C-165/16? Because in Lounes, the British citizen is also an EU citizen who has already exercised treaty rights by moving to another EU country (the UK) and keeps her original EU citizenship as well as the new British. In McCarthy, a UK citizen applied for an Irish passport and also become a dual citizen. However, he had never exercised treaty rights in another EU country as a British citizen, hence the court thought that he could not rely on EU law as he had never exercised rights under EU law.

Hopefully you will understand it this way .

Firstly THANK YOU VERY MUCH for your explanation and your time you spend to write all that ! I greatly appreciate and respect your attainment and know that your answer will be useful for many many Dual citizens who are EU citizens as well as British and browsing through internet to find any info regarding their non EU Spouses (like in my case) .
It is truly great that ECJ decided to allow Dual citizens non EU Spouses to go by EEA route to stay with their Families , but there is left just one important question : what is happening right now ? It is nearly middle of January 2018 and the case been decided in the middle of November 2017, so 2 months gone and I can not find any info of : when this ECJ decision will be implemented into the UK Law ?
Do anybody have any idea ? my wife probably needs to apply for Permanent residence card before April (as her 5 years resident document/Visa will end on 15 th of April 2018) that means if nothing will happen in nearest time her application will be refused just because the Law is not been corrected ontime ? Anybody heard about any changes in Law regarding Lounes case on the moment ?

[chaoscontrol]

really don`t know what to think and the wife is stressing out about this all the time ..
Do we need to wait or send all the documents for PR right now ? she wants to fill PR application in March to win some time in hope Home Office will guide their workers regarding ECJ decision in `Lounes C-165/16` case .. but it may be too late , because at her work HR department is already asking for any confirmation from Home office regarding her right to work in UK ?

[mgb]

December 2012 to december 2017 give 5 years.
Who should hinder her to apply for permanent residence?

[chaoscontrol]

December 2012 to december 2017 give 5 years.
Who should hinder her to apply for permanent residence?

my Dual citizenship . my questions are not about timings but about ECJ decision, which gave right to Dual citizens non EU Spouses to use EU route for applying for Permanent residence documentation.
But as European Court of Justice`s decision is still not implemented in to the UK law , 2 months after the Toufik Lounes case been decided -

there is a risk of my Wife`s application will not be successfull

as:
`In 2012 the UK implemented into its domestic legislation the ECJ decision in McCarthy C-434/09. This was basically that EU citizens who become British citizens cannot rely anymore on EU law, including the right to bring family members to the UK. That is how the law stands currently in the Immigration (European Economic Area) Regulations 2016.

However, the ECJ decision on Lounes C-165/16 from November 2017 changes that. Now family members of an EU citizen who becomes British keep their rights under EU law.`

So, any update on WHEN the ECJ decision will be implemented in to the UK law ?

[eeaprneu2]

You don't need to wait for the UK law to be updated, EU law is superior to UK law and if they refuse her PR application because of your dual nationality, it will be unlawful and you can appeal against it.

[mgb]

December 2012 to december 2017 give 5 years.
Who should hinder her to apply for permanent residence?

my Dual citizenship . my questions are not about timings but about ECJ decision, which gave right to Dual citizens non EU Spouses to use EU route for applying for Permanent residence documentation.

I think it makes no difference if she apply now or in 3 or 4 month.
If a caseworker want to refuse the application he simply will do it.
Enclose a printout of the Lounes judgement and refer to it in the cover letter.

[chaoscontrol]

December 2012 to december 2017 give 5 years.
Who should hinder her to apply for permanent residence?

my Dual citizenship . my questions are not about timings but about ECJ decision, which gave right to Dual citizens non EU Spouses to use EU route for applying for Permanent residence documentation.

I think it makes no difference if she apply now or in 3 or 4 month.
If a caseworker want to refuse the application he simply will do it.
Enclose a printout of the Lounes judgement and refer to it in the cover letter.

Thanks for Advice , any advice are useful now , She wanted to wait and apply as late as possible in a hope that `Lounes case will be implemented in the UK law so the Home office worker will be aware about all that changes and not just reject my wifes PR application simply because she/he will open the wrong page in the Law book and see the old/current interpretation of 2012 `restrictions policy` for Dual citizens .
Also to avoid all the hassle with Appealing to the High Court . Which going to take extra/a lot of time (and we have no time for that cause she will lose her work if her App will be rejected )...
but thanks for advice anyway ,
any Links to `printout of the Lounes judgement` ? sorry I know there is lots in internet if I google it but I don`t know which of them is the Right one to include for the Home Office ?
Thanks in advance.

[vinny]

FULL JUDGEMENT PROMULGATED