Do dual EU-UK citizens have rights under EU law?

[pusched]

Actually just reading the Immigration (European Economic Area) Regulations 2016 and it says:

Family members of British citizens
9.—(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member (“F”) of a British citizen (“BC”) as though the BC were an EEA national.

(2) The conditions are that—

(a)BC—
(i)is residing in an EEA State as a worker, self-employed person, self-sufficient person or a student, or so resided immediately before returning to the United Kingdom; or
(ii)has acquired the right of permanent residence in an EEA State;
(b)F and BC resided together in the EEA State; and
(c)F and BC’s residence in the EEA State was genuine.
(3) Factors relevant to whether residence in the EEA State is or was genuine include—

(a)whether the centre of BC’s life transferred to the EEA State;
(b)the length of F and BC’s joint residence in the EEA State;
(c)the nature and quality of the F and BC’s accommodation in the EEA State, and whether it is or was BC’s principal residence;
(d)the degree of F and BC’s integration in the EEA State;
(e)whether F’s first lawful residence in the EU with BC was in the EEA State.

Reading this, it looks like Lounes has been implemented. Am I reading it right?

[silverman123]

Nup this is absolutely wrong.
First the link you have posted is published on 21 April 2017.
Secondly
EEA regulations of 2016 is still the same and not updated yet and family member of British national means SURINDER SINGH.

IN MY VIEWPOINT WHEN THEY WILL UPDATE LOUNES IT WILL BE WRITTEN AND MENTIONED AS LOUNES ROUTE BECAUSE THIS IS A CASE LAW.
SO DON'T PANIC YET EVERYTHING IS STILL THE SAME.
LOUNES HASN'T IMPLEMENTED YET.
AND WHEN THEY IMPLEMENT LOUNES IT WILL APPEAR AS THE SUN
WE WON'T HAVE TO GUESS IT.
GOOD NEWS IS COMING PEOPLE
AND FEW CASES LIKE US HAS BEEN ACCEPTED IN THIS FORUMS AND WE ARE ALL KNOW THIS.

[pusched]

Thanks @silverman123

Got my dates confused. I thought the information for EU Regulations 2016 was coming up under the latest updates.

Anyway, I am sure everything will be fine as the law is on our side

[Malik_01]

Agree, good news is coming soon.

I have a pending EEA EFM application under Lounes so very excited to see that @eubritish application is being reconsidered.

Hi Branok,

Did you apply for your PR under the Lounes case? if yes, did you get any confirmation back from the HO about how is your application going to be dealt with? as I had a letter sent under the FOI website to a person clearly mentioning that these new applications are on hold until the guidance is issued for the new EEA regulations amendment after case. Excited to hear from you

[Malik_01]

Good news guys
I am just about to apply.
Not sure SS route or as EEA/FM.
Will speak with a specialist solicitor tomorrow.
Hopefully one of the options will work.

Hi Adalba,

What did your solicitor say?

Thank you

[Branok]

Agree, good news is coming soon.

I have a pending EEA EFM application under Lounes so very excited to see that @eubritish application is being reconsidered.

Hi Branok,

Did you apply for your PR under the Lounes case? if yes, did you get any confirmation back from the HO about how is your application going to be dealt with? as I had a letter sent under the FOI website to a person clearly mentioning that these new applications are on hold until the guidance is issued for the new EEA regulations amendment after case. Excited to hear from you

No, it's a completely fresh EEA EFM application. Overstayer in a long term relationship with an EEA national who has naturalised. Not heard anything since the COA letter.

[reynaldogr]

Hi all!

Just a quick note to let you know that my wife has submitted her application for Permanent residence today. Similarly as @ebi did, i'll leave you my wife application timeline below:

Application sent : 23/04/2018
HO received the Application:
Payment taken:
Email confirmation:
Biometric letter:
Biometric enrolled:
C.O.A received:
PR Card:

Keep everyone in the loop.

N.B: we decided not to mention anything RE the Lounes Case. we did mention that i was British in the app though. Hopefully, our application will fall in a misinformed case worker desk and this will act in our advantage so to get the PR processed quicker.

Br

[Adalba]

Good news guys
I am just about to apply.
Not sure SS route or as EEA/FM.
Will speak with a specialist solicitor tomorrow.
Hopefully one of the options will work.

Hi Adalba,

What did your solicitor say?

Thank you

She said my case works as Surinder Singh route.
My wife was born in Jersey and then she moved to Ireland.
After few years she got a Irish citizenship coz her mother is Irish.
She went back to UK and later on was back to Ireland as worker for a British company.
I got my RC through her British citizenship as she was here working and excercising treaty right of movement.
I got a family permit,and now, by the solicitor, I can apply as a British family member coming home from another EEA state, classic SS route.I haven't Applied yet, but when I do it I'll keep you guys posted.

[salu]

Hello everyone,
@reynaldogr, good luck with your application. I agree that it's probably not needed to mention Lounes, though I would expect that by declaring the UK citizenship of the EU sponsor, the case will still be in the same pile of those 'on hold'. Hopefully not on hold for long...

I don't have any updates on my application, but I just saw this tweet from the barrister who represented Lounes at the ECJ:
social media weblink removed by moderator

I am not sure I understand what's going on. What does the High Court need to hear a further argument? I thought the ruling was binding, and all the HO needed to do was to update their internal guidance documents. Could this have to do with the fact that Lounes was not after PR, so it might be unclear how the case affects PR for family members of dual citizens? I'm of course thinking of us all!
Does anyone have any thoughts or updates?

Thanks!

[ebi]

Hi Guys
Parm Saini on Twitter wrote ......

Success! @ukhomeoffice agrees to High Court quashing its decision in light of Lounes Judgment of CJEU. SSHD confirms UK Legislation (Immigration EEA Regs) will be amended to reflect new Derivative Residence Rights. I appeared for Lounes. #EUCitizensRights #FightingToBeBritish

[reynaldogr]

The question that still is open, is if by derivative rights would they be able to be able to ever get a PR and then afterward BC. Keep in mind that Lounes case is for dual nationals EU nationals naturalised British, applying for a 5 year Residence Card for their non ea national spouses.
Most of this forum situation is slightly different as we are seeking PR after being issue with a RC, before naturalised British. I’m just assuming, will be contradictory to allow the Lounes case and not ours, but what will be the outcome, in regards this so call “derivative Rights” I ain’t got a clue. They could just reject our applications and issue our spouses with another RC valid for 5 years and keep this status forever....

Anyone with a different opinion? I know what the Lounes case full judgment days about not given a less favorable outcome as if it was only a non-EA national spouse of EA national (only) sponsor, but this word derivative is still being mentioned...

Br

[silverman123]

Hi @ Renaldogr
Well first i wish you all the best on your application.
In my viewpoint that home office was always depending on Macarthy (dual nationality)
Therefore they used to refuse any application under EEA route and the reason was Macarthy didn't exercise her treaty rights.
So IT DOESN'T MATTER IF YOU WERE APPLYING FOR RC OR PR BECAUSE SIMPLY MACARTHY WOULD APPLY ON BOTH CASES (RC/PR)
ALL THIS USED TO BE IN PAST.
Let go next point.
Lounes came up
New rules which is his wife exercised her treaty rights. So court see they have rights to carry on normal life.
Must not be stricter than those who provided by the directive.
It means RC then PR
So Macarthy still apply but
NOT ON ALL DUAL NATIONALITY CASES DID YOU GET ME BECAUSE SIMPLY MACARTHY IS NOT LAST WORD FOR DUAL NATIONALITY BUT LOUNES WAS THE LAST WORD.
OK here is a link that we are already know
https://tribunalsdecisions.service.gov. ... 00105-2016
Go for points 8.9.10.
The COURT SAYS THE JUDGMENT IN LOUNES HAD PROVED THE OTHERWISE SO THE COURT DOES NOT CONSIDER REGULATIONS 2 AS LONG AS YOU EXERCISED YOUR TREATY RIGHTS BEFORE NATURALISED.
SO YOU THINK THAT WE WILL TAKE ANOTHER 5 YEARS THEN APPLY FOR PERMANENT RESIDENCE!!!????
NAAAAAA THIS IS ABSOLUTELY WRONG.
THE JUDGMENT WAS TALKING ABOUT GO HEAD NATURALISED AS LONG AS YOU EXERCISED YOUR TREATY RIGHTS WITHOUT FEAR AND PANIC AND YOUR NON EU FAMILY MEMBER WILL BE SAFE.
A LOT OF EU BLOG WEBSITES CONFIRMING MY WORDS.
PLEASE EVERYONE COULD YOU PLEASE SHARE YOUR OPINION???

[silverman123]

Also don't forget Ron121
They refused his application then they reconsider once again.
They issued him his permanent residence after all this headache.
They were trying to play hard to get.
EUbritish he is extended family member.
They refused his application then reconsider it once again for his RC and wish him all best by the way.
AND WHO KNOWS MAYBE MANY CASES THAT WE DON'T KNOW HAS APPROVED.
ANY WAY IN FEW DAYS FROM NOW I WILL APPLY MY PERMANENT RESIDENCE.
HOPEFULLY EVERYTHING WILL BE OK AND WILL LET YOU KNOW ANY OUTCOME.
WISH ME LUCK

[kam999]

Hi guys,

Ebi & Salu, well done!

We were not aware that things were that messy. Thanks for sharing xxxxxxxxx, since in his tweet he mentioned that HO would amend EEA regulation 2016, it could be infer from it that many queries will be answered in due course (including ours), probably with in next couple of weeks. Keep an eye on eea PRC guidance notes as last update was carried out on 21/04/17, that is the only page we all should look for as anything else has nothing really to do with us. Fingers crossed guys, in the wake of Lounes decision, in my humble opinion everyone will be benefited from it.

Silverman, thank you for being positive as such attitude helps to keep up the courage, especially for those who are down and in a desperate situation.

Keep posting guys, please do share your opinions and anything you come across that could help this thread followers. Let's work like a team.

[reynaldogr]

Many thanks silverman123. Hopefully will all end up well.
I had left a tweet yesterday to @xxxxxxxxxx about the Derivative Rights and Permanent Residence rights:

Tweet: " would they ever be entitled to apply for PR after 5 years of residence? Not confortable with the "derivative rights" wording. As per HO wedsite, these cases are not entitled to..."

There also 2 or 3 people that have also asked similar question:

Ohter questions with equal reply from @xxxxxxxxxx are as follow:

- "Could a Non EEA spouse apply for his/her after 5 years biw? thank you"
- My EU spouse became a BC so not long ago so dual nationality now. Do you think that i still can apply for PR under Lounes case?

and his respond has been an standard one for all:

" Please contact my Chambers to discuss further as this is a quite separate issue. it's hard to say and may require testing..."

Don't want to sound pessimistic but I think this saga hasn't ended quite yet for us guys.

Br

[CR001]

Can members kindly refrain from posting the Barristers name and social media account name on the forum. He has not given you the authority to do so and it will come up in a Google search link to the forum if anyone searches for him.

[silverman123]

Hi @Reynaldogr
I have seen the posts on twitter.
But what i didn't understand from him why is hard to say!!!!
On other hand people got the permanent residence.
I think it will be very clear once home office will implement within few days /weeks from now.
But let's imagine somthing so what will happen to us then?
Our wife's/husband already exercised their treaty rights in UK BEFORE naturalisation.
Also i have seen an opinion somewhere online saying we have to apply for another 5 years AND STRAIGHT AWAY AFTER WE RECEIVE IT WE APPLY FOR PERMANENT RESIDENCE.
BUT IT DOES NOT MAKE ANY SENSE TO ME.

[reynaldogr]

it may be due to the fact that after 10 years of legally living in the UK on any route or a combination of them, you will be entitle to PR by law? but TBH I'm not so familiar with this topic.
If is this is true, the outcome of our PR app could be that our spouses will be issued with another 5 years RC, and afterwards then, they will entitle to apply for PR and BC soon after, as us (the sponsors) would have been BC already so they won't have to wait for 1x year having the PR status before app. for their BC.

[reynaldogr]

refer to this: https://www.gov.uk/long-residence

[CR001]

it may be due to the fact that after 10 years of legally living in the UK on any route or a combination of them, you will be entitle to PR by law? but TBH I'm not so familiar with this topic.

Not true. It is NOT an entitlement!

For ILR based on 10 years long residence, you must meet the strict criteria of 10 years legal stay. Any time spent as the spouse of an EU citizen, must be valid, i.e. the EU spouse must be a qualified person exercising treaty rights for the WHOLE time that you are claiming time under the EU rules and you have to submit substantial evidence of the EU spouse being qualified.

[silverman123]

But in my own opinion is lounes will take the same way of implementation of Surinder singh as in Surinder singh route people can apply for RC/PR.

Lounes will never going to take derevative right of residence like Carers.
Anyway we are very close to the truth. It's just a matter of days.

[reynaldogr]

it may be due to the fact that after 10 years of legally living in the UK on any route or a combination of them, you will be entitle to PR by law? but TBH I'm not so familiar with this topic.

Not true. It is NOT an entitlement!

For ILR based on 10 years long residence, you must meet the strict criteria of 10 years legal stay. Any time spent as the spouse of an EU citizen, must be valid, i.e. the EU spouse must be a qualified person exercising treaty rights for the WHOLE time that you are claiming time under the EU rules and you have to submit substantial evidence of the EU spouse being qualified.

what do you mean? non EU spouse is automatically a qualified person as the sponsor (EA national) derives their rights to the EA spouse (Non EA national). Not sure if i misunderstood your statement.
TBH, don't want to be rude, bu every time some of you write something in this forum i ended up more confuse that I'm now, and I'm pretty certain that i will never get a feedback on this questions. Your intervention are welcomed but please be consistence and bear in mind you are talking with a non-law-minded people so be plain and crystal clear on what you are trying to say.
Many thanks

[silverman123]

@Reynaldogr
NON EU FAMILY MEMBER IS COVERED BY ARTICLE 21 TFEU
AND MUST NOT BE STRICTER THAN THOSE WHO PROVIDED BY THE DIRECTIVE 2004/38EC.
People in lounes position will be treated Like other people who has the righ to stay on directive.
Must not be stricter means
Coast of the application.
Processing time of the application.
The same length of the residence.
The same right of applying for permanent residence.
He will be treated Like EU FAMILY MEMBER.
NOT less than who provided by Directive of any of the rights.
Lets guess something what do you think HO will do if one of us apply for his/her permanent residence??? What is in their favour to refuse our application???
Can we discuss it from this point please?
Can you guys share your opinions please?

[CR001]

it may be due to the fact that after 10 years of legally living in the UK on any route or a combination of them, you will be entitle to PR by law? but TBH I'm not so familiar with this topic.

Not true. It is NOT an entitlement!

For ILR based on 10 years long residence, you must meet the strict criteria of 10 years legal stay. Any time spent as the spouse of an EU citizen, must be valid, i.e. the EU spouse must be a qualified person exercising treaty rights for the WHOLE time that you are claiming time under the EU rules and you have to submit substantial evidence of the EU spouse being qualified.

what do you mean? non EU spouse is automatically a qualified person as the sponsor (EA national) derives their rights to the EA spouse (Non EA national). Not sure if i misunderstood your statement.
TBH, don't want to be rude, bu every time some of you write something in this forum i ended up more confuse that I'm now, and I'm pretty certain that i will never get a feedback on this questions. Your intervention are welcomed but please be consistence and bear in mind you are talking with a non-law-minded people so be plain and crystal clear on what you are trying to say.
Many thanks

10 year route ILR is an application under the UK Immigration rules and these are the rules that have to be met. To use time spent as a non-EU spouse of an EU citizen under the EU rules towards 10 years ILR, the applicant must prove that their time was 'qualified', i.e. that the EU spouse was exercising treaty rights. Simply 'residing' in the UK is not sufficient.

EU rules and UK Immigration rules are separate and completely different and independent of each other.

[reynaldogr]

not sure my friend but even though what you said may be ok, the doubt is still there. As far as i concern, even the Barrister ruining the Lounes Case doesn't have a direct answer. Or at least that what it appears...