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

[salu]

@silverman123: Your arguments make complete sense to me. I join kam999 in thanking you for sharing your positive interpretation of the ruling, and giving us hope.
Unfortunately, the HO are not exactly famous for being rational or having a consistently sensible interpretation of the law. The fact that the barrister said PR is a separate matter is another concern. If anyone can provide further informed clarification, that would be great.
Still, until we hear back from our current applications, we need to remain calm.
Each route has its requirements and caveats is what I get from CR001 latest contribution.
No need to freak out just yet.
Patience, and good luck to us all!

[silverman123]

You right doubts is still there.
But do you think lounes waited all these years from 2014 up to now 2018 and money and stress and at the end no right of permanent residence???
Does not sound right at all............
In the judgment says they carry on normal life.
Is this a normal life???

Another example.
People in lounes situations can bring non eu family members in uk under EU routes in uk
Other derivative CANNOT DO THIS.
Guys we are all here to help and support and think with each other and we are all in the same boat.
And honestly many many thanks for all the moderators who is responsible for this FORUM.

[reynaldogr]

I agree with Salud. There is nothing else we could do other than simply wait. Anything else will be speculations.
Positive vibes for everyone!

[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

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.

thanks for the clarification CR001. I only hope that Lounes Case at least will confirm that we (EA spouse) never broke our treaty rights by becoming BC. If this is the truth, our Non EA spose 5 years would have never been broken, then the worse case scenario for them will be having to get another 5 years RC and then, that will be enough for them to apply for PR under the ILR long residence settlement. This is what i meant in my original statement above.
Br

[kam999]

@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?

Please correct me if I am wrong, UK amended EEA regulations following McCarthy decision, to my understanding what she was trying to do was simply using her dual nationality to accommodate her Partner to avail that opportunity, it did not work out in her favor and we are now paying for it too. Now, back then HO amended the law not just for residence card application but for every other application following McCarthy (including PRC) that Dual national family members have to go through Uk immigration rules. Based on that I am assuming that they have to implement Lounes decision on a bigger scale and we should be covered just like we were suffering because of McCarthy. And that tweet which says Success, the guy mentioned that UK agreed to amend EEA regulation, I am not a law expert but you just cannot implement a portion of something for a small group, (for like Lounes) and if they do, someone like us will fight again for it and HO has to amend it again and I don't think so they want to go through this again. We are handful of people who made a genuine mistake, but we won't let them treat us like third nationals, most of us are paying taxes and have already made this country our home. The bottom line is (may be its too early to say but) we don't have to go through UK immigration rules or go back and reapply, in worse case another 5 years residence card will be issued or we have to reapply for it on a different application form. And i think it is already a big success because under uk immigration rules you were not just looking at another 6 years but also around £7000 in fees, which kinda worked out for us here just in £65.

Given the stress HO is suffering from Windrush, they cannot take another backlash from EU by treating people like us, after all we are The family members of EEA nationals.

[reynaldogr]

Just spoke with the Lounes Case barrister chamber's assistance and for any consultation he will charge 350 pound an hour. Not willing to waste this money not knowing for sure that i will get a direct/plain answer really. I would have thought all this information would have been available to the general public, but apparently it isn't for the time being.

quick update on my wife PR app. time line:

Application sent : 23/04/2018
HO received the Application: 24/04/2018
Payment taken: 25/04/2018
Email confirmation:
Biometric letter:
Biometric enrolled:
C.O.A received:
PR Card:

Keep everyone in the loop.

[silverman123]

Hi @kim999
Yes you are right and that is my viewpoint.
So let's say it that way in good example.
2016 Someone who is eu citizen naturalised (British citizen) he wasn't aware that holding dual nationality will effect his wife residence card.
After few days/weeks/months/years whatever the time was.
He applied for his wife permanent residence.
So home office simply will refuse his application according to regulation 2 which says EEA NATIONALS EXPECT BRITISH . So home office built that decision(2 regulation) according to macarthy did you get me now.
And as it mentioned at home office Web site that Macarthy didn't exercise her treaty rights because according to the directive no one can exercise treaty rights at home and she never exercised her treaty rights at any MEMBER OF STATE so she can't also be treated as surinder singh.
So the European Court of justice couldn't find anything to help that girl at all.
So she has to go under the immigration rules.
Then lounes fighting against his right because his wife exercised her treaty rights.
So MACARTHY WILL ONLY APPLY FOR PEOPLE IN HER SITUATION NOTHING MORE.
HOME OFFICE TRIED THE BEST TO PUT EVERY DUAL NATIONALITY IN THE SAME BASKET BUT ECJ STOPPED THIS.
SIMPLY BY SAYING CAN'T BE TREATED THE SAME WAY LIKE BRITISH WHO NEVER LEFT THE COUNTRY. SO NOT ALL DUAL NATIONALITY IN THE SAME BASKET.
YES WE DON'T HAVE THE RIGHT UNDER THE DIRECTIVE BUT WHAT BEEN TAKEN FROM ONE HAD HAS GIVEN BY THE OTHER HAND WHICH IS ARTICLE 21 TFEU AND ON CONDITIONS SO NON EU FAMILY MEMBER WILL BE PROTECTED.
NOW WHAT ABOUT US?!!! WE ARE NOT LOOKING FOR RC BUT PR.
I ASKED MANY SOLICITORS AND SEARCHING ONLINE THEY ASSURED ME YES WE CAN MAKE APPLICATIONS FOR PR.
I WILL BE VERY HONEST YES I'M NOT 100%SURE.
BUT WHAT WILL HAPPEN TO US? MACARTHY WILL NEVER GOING TO APPLY ON US NO MATTER WHAT WILL HAPPEN SIMPLY WE DIDN'T BORN BRITISH.
MAYBE THEY WILL GIVE US ANOTHER 5 YEARS UNDER EU ROUTE ARTICLE 21 !!!!????
But the judgment does say that at all.
So this is thr question we need to look for an answer for it.....
@Reynaldogr thanks for your updates man.

[CR001]

Can members kindly refrain from positing in CAPITAL letters. It is very difficult to read and in the same as SHOUTING.

announcements/read-before-you-post-neti ... 75081.html

[kam999]

Guys,

Probably many of you are surfing on internet for answers like myself. Below is (to a point) satisfying answer and an Expert's insight in relation to our situation:

(The original question was same, Dual nationals and their non eea family members PR after HO amends EEA regulations)

Answer:

"I can't answer individual questions but in principle once the EEA Regs are amended to give effect to the latest development any non-EU citizens married to a dual EU27/UK national should be able to claim permanent residence by analogy with the rules set out in the free movement Directive"

Seems like we are close to acquire our PRC.

[silverman123]

"I can't answer individual questions but in principle once the EEA Regs are amended to give effect to the latest development any non-EU citizens married to a dual EU27/UK national should be able to claim permanent residence by analogy with the rules set out in the free movement Directive"

That answer was for me this morning i was about to post it but thanks anyway kim
Yes i asked the. Man because he is a prof in EU LAW" and he answer my question straight away.
That's why i always feel like there is a hope.
Also i asked lounes solicitor and she confirmed me yes we can make applications. For PR
Another solicitor and she is very very famous in London.
She assured me yes we can make applications FOR PR.
THX guys keep update please.
Good job Kim999 for searching for solutions.

[kam999]

Thank you for taking the initiative Silverman and sorry about nicking ur msg as it was an anonymous questioner and i never thought it would be you.
The thing is u r due to apply for PRC whereas i am in the middle of process, already recieved my CoA and now waiting for answer so m a bit conscious.
Thanks to this form and to all others who share and don't let me feel that i am alone.
When i was visiting solicitors they advised me otherwise and said that switch my status to spouse visa as i had a littile over six month time on my residence card and could have done it legally without leaving the country. However, i didn't listen, right or wrong decision, too early to say but i had to take my chances and here i am sharing and learning from people who are in very situation like myself.
The thing hurts/hunts me most is my negligence in regards to preparation for my application as i am usually pretty organised and was sure that i did not left anything bebind while i was applying. Matter of fact, i only realize that dual natinals non eea family members lost their privilege of residing in uk by hodling a residence card, on the day when i wanted to send my application as i was searching for supporting document. Anyway, my firm believe is everything happens for a reason, i cannot say for myself yet why it happened to me or to all of you but once we all will settle down in future, it will be revealed to us the wisdom behind it.
Good luck guys.

[silverman123]

Hi @kim999
No need for sorry you were doing a great job by searching for solutions for all of us.
Next week i will send my application and i will mention lounes and anyway very soon and i geuss during May they will amend the EEA regulations.
And hopefully we will hear a good news.

[silverman123]

Quick update from YOUR EUROPE ADVISE.
they have sent it to me before i joined this forum.


You wonder what is the legal situation. 

The Lounes decision referred to in you post was handed down by the Court of Justice in November 2017. 

Whilst the Court held that Directive 2004/38 was inapplicable, nevertheless, a family member in your circumstances was held by the Court to be vested with rights under the Treaty, which were equivalent to those provided under Directive 2004/38. Accordingly, you must be treated no worse than the family member of an EU citizen in similar circumstances. 

The Home Office has not implemented this decision yet. The result is that if someone seeks to rely on the Lounes Judgment, his application is likely to suffer delay until the Home Office resolves to implement the Lounes caselaw. 

Given the indications provided in your post, it appears that you may be eligible for the right of permanent residence, in May of 2018

[silverman123]

Here we goooooo.
I just saw and confirmation from home office on one of queries. It says
Dear..........
Thank you for the email,

You will be able to stay and still be able to apply for Permanent Residence after your spouse becomes a British Citizen.

Regards

Xxxxx
UK Visas and Immigration

[silverman123]

By the way the guy who wrote the request is not covered by TA he will apply for his permanent residence under lounes next year in March.
The more we read more we search more we find our selves near to what we want
Just be positive

[kam999]

Silverman123 you are the star and saviour and the struggle and hard work you did, we can see its results now. I saw the HO response as well the one you quoted above, its just matter of time now when we will see updated guidance for case workers who are handling PRC applications.
I am wondering where are the other active members, we are nearly there, so far this is the relaxing weekend for me of this year.

[reynaldogr]

This is excellent news! Many thanks for keeping all this forum up to speed siverman/kam999... may i know the link where you get to see this reply?
Br

[eubritish]

I think it is very obvious that Home Office will have to abide by the Lounes judgement and treat dual citizens (who have exercised treaty rights in the UK and eventually naturalized) as EEA citizens for the purpose of their family members's visa/RC applications.

The question of 'who will bell the cat?' is *when* will they update their regulations? it has been nearly six months since the decision was handed down by ECJ and all Home Office has done so far is send out 'hopeful' emails.

[kam999]

Reynaldogr, u can go to what do they know website and Silverman left a hint in his post, since we cannot mention names here i am afraid u have to google it, but yaa its true.

Eubritish, so far this is the first response where home office eventually confirmed that dual nationals non eea family members can go ahead for PRC. In regards to ur question read our previous posts on the same thread where Lounes barrister went for last argument on 25/04/18 and in his tweet he confirmed success and stated that HO agreed to amend its Eea 2016 regulations. So yes it has been 6 month since Lounes decision but just few days back HO acknowledges it and now the question should be will that judgment cover us and Silverman just wrote their answer above which could be verified on whatdotheyknow website that yes we can go ahead and apply. I hope it helps, please all of you be positive, there was nothing really in our hand and it kinda worked out for us.

[silverman123]

This is excellent news! Many thanks for keeping all this forum up to speed siverman/kam999... may i know the link where you get to see this reply?

non_eea_family_member_of_dual_br#incoming-1143175

[silverman123]

You are welcome kim999
I have left a hint for you @Reynaldogr
Try to Google it .
And Thanks for all of you guys
I'm so happy we are all here to help each other other.
And let me explain what happened.
When lounes had to fight for his residence card he referred the matter to High Court.
Then they High Court got confused they couldn't find what to say his wife exercised her treaty rights.
Then the High Court referred the Whole case to European Court of justice then ECJ has ruled and finished the matter.
Then ECJ had to return the whole case back to the High Court of course that had to take time.
I knew the hearing day from along time ago
So now the case has determined by high court.
And it means a good news which is lounes residence card on his way but firstly they have to amend the EEA regulations which i expect days from now not long than this.
And let me tell that the home office know exactly what they will do from along time ago even if they didn't show up.
You want examples.....
Ron121. Refused him then withdraw the apeal then PR
Success82. Straight away accept his PR
EUBritish. Withdraw the apeal.
Hopefully will hear a good news.
And who knows maybe a lots of cases been accepted and we don't know.
So it seems like they know what will they do but keep it after the high Court determination.
It seems like we will have a good summer guys

[silverman123]

Hey guys.
Another update and different date
Another confirmation from home office for people who are looking to apply for permanent residence.

Good news keep coming
Once again he is not covered by TA


Dear..........

Thank you for the email,

Your conditions/rights to exercise your rights as an EEA national dependant will not change when your spouse becomes a British Citizen. When you apply for Permanent Residence the application will be considered on the basis that you remain the spouse/dependant of an EEA National.

Regards
Xxxxx
UK Visas and Immigration

[reynaldogr]

Hey guys.
Another update and different date
Another confirmation from home office for people who are looking to apply for permanent residence.

Good news keep coming
Once again he is not covered by TA


Dear..........

Thank you for the email,

Your conditions/rights to exercise your rights as an EEA national dependant will not change when your spouse becomes a British Citizen. When you apply for Permanent Residence the application will be considered on the basis that you remain the spouse/dependant of an EEA National.

Regards

Xxxxxxx
UK Visas and Immigration

Thanks for the tips silverman123! i have found the above-mentioned responds. The latest one as well. This is definitely excellent news. I reckon HO has some sort of preliminary guidance to our cases now. I had asked to Further Nationality Inquiries something similar than A AWAN, 3x weeks ago (after receiving the email confirmation by the HO that Lounes Case is acknowledge), so hopefully i will be having a positive respond soon as well. Keep you posted.
Br

[chaoscontrol]

Hi guys , thanks for your positive mood , and all the updates about recent High Court listing and their decision about implementation of CJEU `Lounes`ruling .

Sorry for not posting so long, been super busy .

Could anybody please explain to me :

what will mean that `derivative` right for us after this latest UK High Court ruling ?

Do that still mean we can not have Permanent Residence card but just that one strange`derivative` right to live and work without any years counting towards PR ?


or if, for example (our case) : I am naturalised 4 years AFTER we been married with my spouse and she is DONE her 5 years on RESIDENT CARD DOCUMENT now - do she will be eligible for PR now ? (as soon as HO guidances will be updated and `legislation amended of course ).


Is the words from CJEU Lounes ruling :` this derivative right should be no worse or equal to one acquired from directive 2004/EC` means anything for HO ? or they just trying to ignore that ?

our timeline :
App send : 28 March
Biometrics done at 7.th April
COA received 16.th April dated 12th
Lounes`ruling mentioned in the Cover letter and printouts from different sources also included.
now waiting ...

Thanks everyone involved for your support on this forum , it is really important to fight together in our case !

[silverman123]

@chaoscontrol
Please have a look on all our discussions and opinions and confirmation from HOME OFFICE mentioned above.
It's logically no more 5 years will be issued anymore for any of us.
What is the point of the judgment then !!!!???
If we think for another 5 years why we have been waiting for lounes judgment then!!??
We could apply under immigration rules and that's it and no more headache.
But the fact is will carry our life as normal as long as our spouse exercised his/her treaty rights.