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

[chaoscontrol]

Firstly many thanks to knowleadgeable and good people on this forum .I really appreciate your help. Good bless you all.

Now I know that I should just wait a year till my wife gets a PR card and then naturalise and get British citizenship , but I only found out that I am lost my EU rights when I became British (aswell as EU) couple of months ago , when we realised that her 5 year Resident card is coming to the end ..
I was so stupid not to read the laws (this forum) before applying for B.C. in 2015.. now I have to risk with our lives and family and Child ..

do anybody knows please :

say , my wife will have her PR application refused on the basis that I am Dual British/EU citizen (in case HO will not follow CJEU decision in Lounes from 14.11.17 and will apply unchanged 2016 regulations or wherever they have to apply from following to their unchanged guidance) .
Do we will have the right to appeal in this case ?

If we will have that right , do my wife will have to leave the Country for the time Court will decide ?
We have a small 1 year old baby who is British citizen ,so as much as I understand this will be against the law cause I think they should not separate the family ? Am I right ? or they don`t care about these things ?

2. What are our options if we have no enough money to pay to Solicitor thousands of pounds (so he could stand for us in the Court + prepare all the documents for us in the right way) ?

Is it obligatory /advisable to hire a Solicitor to appeal Home Office`s decision ?

So stressfull times , my Family are in a big mess because of my Dual citizenship ..so any advice on `if the worse will happen and we have to appeal` will be very helpful ! Thanks again .

[Obie]

You really should stay under the EU path. Not sure why you are stressing over this matter.

[chaoscontrol]

You really should stay under the EU path. Not sure why you are stressing over this matter.

Thanks Obie`. Well , because there is no official confirmation of imlementation of ECJ decision in`Lounes` into UK law , I am really worried that the HO will not bother to follow EU rules in light of quickly approaching Brexit and will refuse my wifes application just because I am Dual citizen ..

[Richard W]

You really should stay under the EU path. Not sure why you are stressing over this matter.

Thanks Obie`. Well , because there is no official confirmation of imlementation of ECJ decision in`Lounes` into UK law , I am really worried that the HO will not bother to follow EU rules in light of quickly approaching Brexit and will refuse my wifes application just because I am Dual citizen ..

Then the sooner your wife applies for her PRC the sooner the courts will order the HO to issue it and your wife can then apply for naturalisation.

[vinny]

You really should stay under the EU path. Not sure why you are stressing over this matter.

Then the sooner your wife applies for her PRC the sooner the courts will order the HO to issue it and your wife can then apply for naturalisation.

Excellent points.

[chaoscontrol]

You really should stay under the EU path. Not sure why you are stressing over this matter.

Thanks Obie`. Well , because there is no official confirmation of imlementation of ECJ decision in`Lounes` into UK law , I am really worried that the HO will not bother to follow EU rules in light of quickly approaching Brexit and will refuse my wifes application just because I am Dual citizen ..

Then the sooner your wife applies for her PRC the sooner the courts will order the HO to issue it and your wife can then apply for naturalisation.

Thank you for your support guys . Unfortunately (in the best outcome) this is going to be derived / derivative right to reside and not Permanent Residence for her as CJEU stated in Lounes`..

so that`s probably means she will need to apply for something else in March 2019 (or before 31 dec 2020 when transitional period ends) ?
Who knows what for she will need to apply after brexit or worse - do she will have any right to stay in the Country with her derivative/derived card ?
.. so looks like the story will repeat again after just 1 year ..

[Richard W]

Thank you for your support guys . Unfortunately (in the best outcome) this is going to be derived / derivative right to reside and not Permanent Residence for her as CJEU stated in Lounes`..

so that`s probably means she will need to apply for something else in March 2019 (or before 31 dec 2020 when transitional period ends) ?

No. If you look at Clause 62 in the judgement, you will see that the rights under the directive would also have been "derived rights" in CJEU legal jargon. You wife will be in at least as strong a position as a beneficiary of the Surinder Singh judgement.

Who knows what for she will need to apply after brexit or worse - do she will have any right to stay in the Country with her derivative/derived card ?
.. so looks like the story will repeat again after just 1 year ..

Watch the position on Surinder Singh. She may have time to naturalise by March 2019 and certainly before the end of the transitional period. And when the new category of settled status comes out, check the wording on dual nationals. From what was written by HMG, you may be in for a pleasant surprise.

[mgb]

Thank you for your support guys . Unfortunately (in the best outcome) this is going to be derived / derivative right to reside and not Permanent Residence for her as CJEU stated in Lounes`..

How do you come to this idea?
Lounes judgement in the last sentence?
"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".
If a third-country national get a PRC after 5 years due to 2004/38 your wife has the same right.
The UK is bound to this judgement independently if the home office like it or not.

[chaoscontrol]

Thank you for your support guys . Unfortunately (in the best outcome) this is going to be derived / derivative right to reside and not Permanent Residence for her as CJEU stated in Lounes`..

so that`s probably means she will need to apply for something else in March 2019 (or before 31 dec 2020 when transitional period ends) ?

No. If you look at Clause 62 in the judgement, you will see that the rights under the directive would also have been "derived rights" in CJEU legal jargon. You wife will be in at least as strong a position as a beneficiary of the Surinder Singh judgement.

Who knows what for she will need to apply after brexit or worse - do she will have any right to stay in the Country with her derivative/derived card ?
.. so looks like the story will repeat again after just 1 year ..

Watch the position on Surinder Singh. She may have time to naturalise by March 2019 and certainly before the end of the transitional period. And when the new category of settled status comes out, check the wording on dual nationals. From what was written by HMG, you may be in for a pleasant surprise.

Thanks for your option Richard W and for an Idea that she can naturalise before `brexit (from derived right) , but I am not sure if that will be allowed for her , cause derivative or (derived ?) right to stay is not counting years she living in UK ,
logically she can`t apply for citizenship after she will receive that `derived right to stay (based on Lounes` case) .
But -the other thing is : she already done her 5 years of exercising Treaty rights up until now ! so as MGB says - she supposed to get Permanent residence now (also based on Lounes`) ? only the thing which they may use to refuse her is my Dual citizenship .. not sure really how they will decide all that ..

Do they will keep in mind my wife`s 5 years exercising Treaty rights in this Country (2013-2018) or just ignore them and say that : `when you naturalised in 2015 - you lost your EU rights , so her 5 years not counts anymore ...`

[chaoscontrol]

Thank you for your support guys . Unfortunately (in the best outcome) this is going to be derived / derivative right to reside and not Permanent Residence for her as CJEU stated in Lounes`..

How do you come to this idea?
Lounes judgement in the last sentence?
"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".
If a third-country national get a PRC after 5 years due to 2004/38 your wife has the same right.
The UK is bound to this judgement independently if the home office like it or not.

Thanks for correction MGB , but as I understood MR Lounes still only got Derived `right and not a Permanent Residence after CJEU decision ? or I am wrong ? if its not `PR (what he have now) then it looks like these words :
"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" - are not working as they should ?
sorry me please if I am wrong in understanding of CJEU decision in Lounes` case .

Of course I hope it is right as you saying and they (HO) will refer to that `wordings`from Lounes case and give her PR instead of `Derived`(or derivative ?) right to stay ..

[Richard W]

Your wife should apply for a PRC *now*. Delay gains you nothing. It may well be that a lawfully obtained PRC will entitle her to the new settled status when it is introduced; it will also assist in qualifying her to apply for naturalisation. With a hard Brexit and no PRC she may find herself with no option but to apply for leave to remain under the UK rules - and if you leave it until after Brexit she may have to apply from abroad.

She might have to appeal against a refusal on the basis that you are British - but Obie has reported in this thread an example of the Home Office giving up that argument because it is counter to Lounes.

The problem you may face is not that she has a derivative right of residence. She does not have a 'derivative right'; she has, and has always had, a derived right of residence. That final 'ive' makes a big difference. The problem you may have is that her right of residence does not derive from Directive 2004/38/EC. The only solutions to that problem are lobbying and naturalisation, which requires a PRC, though the problems may not materialise. The first step is to apply. You are extremely unlikely to gain any benefit by delaying, and by delaying your wife may lose the opportunity ot naturalise as British.

The only immediate issue is whether to mention the Lounes issue in the application. My thought is that you should, and that to conceal your British nationality would leave her open to a charge of obtaining the PRC by deception, which could cause any subsequent naturalisation to be revoked.

[mgb]

Thanks for correction MGB , but as I understood MR Lounes still only got Derived `right and not a Permanent Residence after CJEU decision ?

PR is PR. Your wife cannot be handled less favourable than a other family member of a eu citizen with 5 year residence.

[sadmanonatrain]

To save thread retail space, bluntly/naively;

Can I as a dual UK/EU national at birth, bring my wife (non-EU) to the UK? I've only lived said countries (EU-wise).

[secret.simon]

Can I as a dual UK/EU national at birth, bring my wife (non-EU) to the UK? I've only lived said countries (EU-wise).

Were treaty rights exercised by you at any point?

A dual British/Irish citizen (or a dual British/EEA citizen) by birth, who has never left the UK/exercised treaty rights in another EEA member-state, is not covered by Lounes, but by the earlier McCarthy judgment and therefore cannot sponsor their spouse under the EEA Regulations.

What Lounes states is that if an EEA citizen exercises treaty rights, moves to the UK and subsequently acquires British citizenship, such a dual British/EEA citizen (who acquired British citizenship after exercising treaty rights in the UK) can continue to sponsor family members through the EEA route.

In other words, exercise of treaty rights in another EEA member-state (either in the UK by a non-UK EEA citizen OR by a UK citizen in another EEA member-state i.e. Surinder Singh) is a requirement for sponsoring family members through the EEA route.

[Rumplestiltskin]

Can I as a dual UK/EU national at birth, bring my wife (non-EU) to the UK? I've only lived said countries (EU-wise).

Were treaty rights exercised by you at any point?

A dual British/Irish citizen (or a dual British/EEA citizen) by birth, who has never left the UK/exercised treaty rights in another EEA member-state, is not covered by Lounes, but by the earlier McCarthy judgment and therefore cannot sponsor their spouse under the EEA Regulations.

What Lounes states is that if an EEA citizen exercises treaty rights, moves to the UK and subsequently acquires British citizenship, such a dual British/EEA citizen (who acquired British citizenship after exercising treaty rights in the UK) can continue to sponsor family members through the EEA route.

In other words, exercise of treaty rights in another EEA member-state (either in the UK by a non-UK EEA citizen OR by a UK citizen in another EEA member-state i.e. Surinder Singh) is a requirement for sponsoring family members through the EEA route.

Very well explained. Thank you !

[Richard W]

In other words, exercise of treaty rights in another EEA member-state (either in the UK by a non-UK EEA citizen OR by a UK citizen in another EEA member-state i.e. Surinder Singh) is a requirement for sponsoring family members through the EEA route.

The logic of Surinder Singh says that when a worker with nationalities of A and B moves from A to B, he should be able to take his family with him. I think the CJEU would take that view. However, if the other country is Germany and Sadmanonatrain is living there with his wife, I think the UK will have left the EU before he can get a favourable judgement from the courts. So I fear the practical answer is 'no', but it may be worth applying for a family permit on the off-chance that the HO will say 'yes'.

I think Sadmanonatrain's hijacking of this thread should be spun off to a separate thread.

[sadmanonatrain]

I think Sadmanonatrain's hijacking of this thread should be spun off to a separate thread.

Yeah I've made a separate one here for anyone interested:

eea-route-applications/uk-eu-dual-natio ... 48867.html

[pusched]

Thanks for your option Richard W and for an Idea that she can naturalise before `brexit (from derived right) , but I am not sure if that will be allowed for her , cause derivative or (derived ?) right to stay is not counting years she living in UK ,
logically she can`t apply for citizenship after she will receive that `derived right to stay (based on Lounes` case) .
But -the other thing is : she already done her 5 years of exercising Treaty rights up until now ! so as MGB says - she supposed to get Permanent residence now (also based on Lounes`) ? only the thing which they may use to refuse her is my Dual citizenship .. not sure really how they will decide all that ..

Do they will keep in mind my wife`s 5 years exercising Treaty rights in this Country (2013-2018) or just ignore them and say that : `when you naturalised in 2015 - you lost your EU rights , so her 5 years not counts anymore ...`

Hi,

Any chance to keep us posted on what happens with your wife's application? We are going to be on the same boat at the end of the year and getting quite nervous.

[reynaldogr]

Your wife should apply for a PRC *now*. Delay gains you nothing. It may well be that a lawfully obtained PRC will entitle her to the new settled status when it is introduced; it will also assist in qualifying her to apply for naturalisation. With a hard Brexit and no PRC she may find herself with no option but to apply for leave to remain under the UK rules - and if you leave it until after Brexit she may have to apply from abroad.

She might have to appeal against a refusal on the basis that you are British - but Obie has reported in this thread an example of the Home Office giving up that argument because it is counter to Lounes.

The problem you may face is not that she has a derivative right of residence. She does not have a 'derivative right'; she has, and has always had, a derived right of residence. That final 'ive' makes a big difference. The problem you may have is that her right of residence does not derive from Directive 2004/38/EC. The only solutions to that problem are lobbying and naturalisation, which requires a PRC, though the problems may not materialise. The first step is to apply. You are extremely unlikely to gain any benefit by delaying, and by delaying your wife may lose the opportunity ot naturalise as British.

The only immediate issue is whether to mention the Lounes issue in the application. My thought is that you should, and that to conceal your British nationality would leave her open to a charge of obtaining the PRC by deception, which could cause any subsequent naturalisation to be revoked.

Hi Richard W,

may i know the different between DerivatIVE right or derivED rights, of residence? Br

[reynaldogr]

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.

Hi Adinfernos,

May i know the name of these charities you mentioned? if you are not allowed to say their names, please provide me with a link leading to their website. Br

[Richard W]

may i know the different between DerivatIVE right or derivED rights, of residence?

The core rights of residence are the sometimes conditional rights of EU citizens and other EEA nationals to reside in various parts of the EEA, e.g. the right of an EU citizen to live in his own EU country and, generally, to work in any EEA country. Other people obtain derived rights of residence so that the EEA national can readily exercise his rights.

Some of these rights are obtained from the free movement directive, 2004/38/EC, or by analogy with it (Surinder Singh, Lounes), or by a more generous interpretation of the directive and its analogies. Residence in accordance with such rights for 5 continuous years leads to permanent residence.

Other derived rights are termed derivative rights; they include derived rights needed so that EU citizens can live in their own country or so that children of EEA nationals can complete their education without moving country. These rights do not lead to permanent residence.

[reynaldogr]

may i know the different between DerivatIVE right or derivED rights, of residence?

Many thanks for the clarification Richard W

I can only say that, after doing loads of reading and seeing this thing from another perspective. I reckon we are over-killing our minds. I understand that Lounes case it refers to a non EU Family member of an EA national/BC, applying for a Residence Card, after the TA imposed in Oct-2012. This was an obvious rejection and easy decision for the HO, but then Lounes case ECJ judgement, came into place and we are where we are. The whole purpose of these Dual nationality changes, it was to avoid people taking advantage of the softer requirements for EA nationals family member to reside in the UK, compare to the family member of a BC. We are not in that boat. From what i can see, most of the people in this forum (just like me and my wife), non EA national family member, got their 5 years Residence card while we were only EA nationals. Taking the decision post TA, to become BC can't affect retrospectively, the status of your non EA national direct family member, who were in this route already before us becoming BC. This doesn't make sense at all. Anyhow, this is just my humble way of looking at things. Not sure if I'm being naive or too positive. But i believe that senior Case Workers looking at our applications will definitely pick up on this and will approve the PR certificates for our spouses. I reckon this is all a mess that the immigration advisers (inc. the useless robots at the EA immigration help lines), created because they could only assure what is written in the immigration laws.
Looking into the guidance for the HO work cases, and the way they decide Permanent Residences (https://www.gov.uk/government/collectio ... d-guidance), I can't see anywhere, where they are asked to evaluate if a non-EA national of a naturalized BC, have submitted their Residence Card application before the TA ended (16/12/12). If this was the case, the rights that a EA national has to become BC after 12 months of acquiring PR would have been automatically tied to non EA national in route. This doesn't make any logical sense.

Anyhow, keep on refreshing the link above, to check on if there is any updates to the HO work cases adding something related to the Lounes case.

Br

[reynaldogr]

may i know the different between DerivatIVE right or derivED rights, of residence?

Many thanks for the clarification Richard W

I can only say that, after doing loads of reading and seeing this thing from another perspective. I reckon we are over-killing our minds. I understand that Lounes case it refers to a non EU Family member of an EA national/BC, applying for a Residence Card, after the TA imposed in Oct-2012. This was an obvious rejection and easy decision for the HO, but then Lounes case ECJ judgement, came into place and we are where we are. The whole purpose of these Dual nationality changes, it was to avoid people taking advantage of the softer requirements for EA nationals family member to reside in the UK, compare to the family member of a BC. We are not in that boat. From what i can see, most of the people in this forum (just like me and my wife), non EA national family member, got their 5 years Residence card while we were only EA nationals. Taking the decision post TA, to become BC can't affect retrospectively, the status of your non EA national direct family member, who were in this route already before us becoming BC. This doesn't make sense at all. Anyhow, this is just my humble way of looking at things. Not sure if I'm being naive or too positive. But i believe that senior Case Workers looking at our applications will definitely pick up on this and will approve the PR certificates for our spouses. I reckon this is all a mess that the immigration advisers (inc. the useless robots at the EA immigration help lines), created because they could only assure what is written in the immigration laws.
Looking into the guidance for the HO work cases, and the way they decide Permanent Residences (https://www.gov.uk/government/collectio ... d-guidance), I can't see anywhere, where they are asked to evaluate if a non-EA national of a naturalized BC, have submitted their Residence Card application before the TA ended (16/12/12). If this was the case, the rights that a EA national has to become BC after 12 months of acquiring PR would have been automatically tied to non EA national in route. This doesn't make any logical sense.

Anyhow, keep on refreshing the link above, to check on if there is any updates to the HO work cases adding something related to the Lounes case.

Br

An open question for this audience.... following what is said on the following document, page 22.

https://www.gov.uk/government/uploads/s ... s_v5_0.pdf

"British citizens who are also nationals of other EEA member states are not
considered to be ‘EEA nationals’ for the purposes of the Immigration (European
Economic Area) Regulations 2016 (the 2016 regulations). This applies whether or
not the dual national has always resided in the UK."

is the same "British citizens who are also nationals of ohter EEA member states" than "EEA member states who are also nationals of UK (naturalised Brisith)"? in principal looks the same, but technical it isn't. This could be our saver!

Br

[chaoscontrol]

reynaldogr : link is not working : `page not found`...
Yess .. Senior case worker would be nice ... but how to ensure that our applications will go to Senior case worker ? and not newly employed (or many years employed) robot ? anybody could advice ?

This is kind of lottery - if we don`t get our apps to the right person , then our apps will be rejected 100% just because of case worker incompetence .. THAT is worst problem in our case .

Of course The Home Office knows about ECJ decision in Lounes`because they should be aware about all the CJEU cases , its just f..ing robots sitting on `immigration adviser robohuman live answermacine` positions who keep repeating the same every time you call them : "WE ARE NOT AWARE about this".

Last time I called and asked the Lady said : "You can`t apply using EU rights if you are British citizen". But when I said: "wait wait (which mean: stop repeating your robotic words of what is written in your guidances) there was ECJ decision in November " - she then said : "You can apply if you want" ..
And that`s what I call incompetence and "f..ing robots" (as you call them reynaldogr - I like this name ,cause it is the best descripition we can find for them ))

[reynaldogr]

reynaldogr : link is not working : `page not found`...
Yess .. Senior case worker would be nice ... but how to ensure that our applications will go to Senior case worker ? and not newly employed (or many years employed) robot ? anybody could advice ?

This is kind of lottery - if we don`t get our apps to the right person , then our apps will be rejected 100% just because of case worker incompetence .. THAT is worst problem in our case .

Of course The Home Office knows about ECJ decision in Lounes`because they should be aware about all the CJEU cases , its just f..ing robots sitting on `immigration adviser robohuman live answermacine` positions who keep repeating the same every time you call them : "WE ARE NOT AWARE about this".

Last time I called and asked the Lady said : "You can`t apply using EU rights if you are British citizen". But when I said: "wait wait (which mean: stop repeating your robotic words of what is written in your guidances) there was ECJ decision in November " - she then said : "You can apply if you want" ..
And that`s what I call incompetence and "f..ing robots" (as you call them reynaldogr - I like this name ,cause it is the best descripition we can find for them ))

That's why i would refer to the Lounes Case and put a printed copy of the full judgment when submitting my application. If my case falls into a robot's desk, at least that will lead them to revert back to a more senior case worker, before taking a decision.