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

[kam999]

Hey Guys,

I hope you all are well.

I think we should give HO a break, their boss just resigned from her post.

You see derivative here means a portion of something (which in our case means non EEA FMs can live here as long as their spouses stay). however, we should not only concentrate on this word the other part of the TL decision is:

Where an EU national has exercised Treaty rights and has become so integrated into their host Member State that they have acquired nationality of that state, the rights of their family members could not be any stricter than the rights afforded to family members of EU nationals under the Directive.

I totally understand the hesitation of this thread followers but we will not be ignored. Following Brixit, people did hasty things. HO is not our friend but they understood why our spouses or some of us acquired BC and they have to respect it (some of the above responses are just a glimpse of it where HO finally started to acknowledge our application as previous responses were straight, if you are not covered by TA you need to apply under UK immigration rules).

Probably many of you are looking for a positive news which i don't have for now, but I wanted to show you our situation from a different angle.

Let's say if someone renounces his British citizenship to have a normal life with his/her family as then that person will be considered only EEA national, and later this story is published in a paper that just to save family this person gave up his/her British Nationality. Do you think HO will be able to justify it? Windrush victims were enough to show HO that any drastic moves could lead to nasty endings and someone died and HS ended up resigning. It just does not sound practicable. Please be advised HO has many reasons to refuse your application once you come under immigration rules. So don't give up, even if they refuse your application get legal help, share your stories, many people here may be not able to seek legal advise and they are looking for other ways and kinda end up here, so help them and help yourself, be hopeful and remember you spent at least 5 years here and integrated into this country with your spouses and abide by this country's law, a small mistake cannot take everything away from you, and if it does, Fight Back.

[silverman123]

@kim999
That's the spirit that we need To fight back Just In case of something happen but everything will be ok its just matter of time that's all.
Focus more on what the judge say

  "A national of one Member State who has moved to and resides in another Member State cannot be denied that right merely because he subsequently acquires the nationality of the second Member State in addition to his nationality of origin"

Another one
"
In the first place, denying him that right would amount to treating him in the same way as a citizen of the host Member State who has never left that State,"

"Member State cannot restrict the effects that follow from holding the nationality of another Member State, in particular the rights which are attendant thereon under EU law and which are triggered by a citizen exercising his freedom of movement."

  "  It would also follow that Union citizens who have exercised their freedom of movement and acquired the nationality of the host Member State in addition to their nationality of origin would, so far as their family life is concerned, be treated less favourably than Union citizens who have also exercised that freedom but who hold only their nationality of origin"

Honestly if you read it as it should be you guys will feel that shouldn't be any problem and we can apply for permanent residence under lounes case
Stay positive

[chaoscontrol]

Ok, I understand that you are optimistic , but I am judging based on facts . `ll ask differently :

Why do CJEU decision in Lounes not mentioning Permanent residence status then ? Also UK High Court`s ruling not clearing out precisely about Permanent residence ?

sure there should be reason for that ?

Also Home Office :
They successfully wrongly denyed derivative rights for YEARS (since 2012) to people who have acquired them using wrongly interpreted McCarthy ruling as a reason for refusing peoples applications !

And after all this you are saying it will be allright ? they even tryed to avoid to implement CJEU decision in Lounes after CJEU judgement !
And they would be successfull in that case aswell if 2 years TRANSITIONAL PERIOD under EU jurisdisction won`t be confirmed in March/end of Feb. That was the moment when HO understood that they can not just wait till March 2019 (Brexit) and avoid implementing Lounes anymore .

So, I am still very worried about HOW `HO` will implement `Lounes ,

do they will try again , for example :

modify UK High Court ruling , to get better results for themselves , to meet their famous `immigration targets` and deny PR status to people who acquired PR - explaining it with : `derivative right not counting years towards PR` or something similar ?

If nobody able to answer these questions for now , then there should be no happinness regards to STANDART PROCEDURES of implementing CJEU decision .

The question stays open :

HOW Lounes will be implemented and if the HO will continue to ignore wordings from CJEU decision about : `that right should be no worse than one which comes from Directive 2006/EC...`

[kam999]

Morning all,

Chaoscontrol, in regards to your query, Lounes decision has nothing to do with permanent residence, it was more about residing inside UK lawfully as a FM of EEA national under EU freedom of movement, ECJ took 5 months to rule against HO. Same goes for UK high court as lounes applied for EEA2 not PRC.

McCarthy, she was trying to use her Dual nationality to accommodate her spouse without exercising treaty rights. What people in our situation can take from all this chaos is:

When McCarthy was implemented everybody suffered regardless EEA2 or PRC, we are hoping that Lounes decision will also put everything back in place the way in was before McCarthy, it was a bit grey area, however, ECJ kinda clear that by saying :

Where an EU national has exercised Treaty rights and has become so integrated into their host Member State that they have acquired nationality of that state, the rights of their family members could not be any stricter than the rights afforded to family members of EU nationals under the Directive.

ECJ judgement cannot be implemented straightaway as the case was referred to ECJ by UK high court who were unsure themselves at that point that how to refuse Lounes as it is different than McCarthy, and now since 25 04 18 final argument has taken place in High Court and HO agreed to amend EEA regulations, we were not aware of it until one of the follower mentioned Lounes's barrister's tweet.

Further, HO replies to all relevant queries by saying something similar like:

We are currently considering our response to the judgment and envisage amending the
Immigration (European Economic Area) Regulations 2016 to implement the judgment as
soon as practicable, which we expect will be in the early part of this year. In the interim, no
decision will be taken on cases in which the sponsor has declared dual citizenship until we
have agreed the way forward and such cases have been put on hold to ensure that we are
in compliance with a binding judgment from the CJEU.

The above reply was before Final argument in regards to Lounes in high court.

I totally understand your hesitation, look, lounes barrister is not sure himself that we can retrieve our right (PRC) under Lounes, but there is nothing wrong in being optimistic. We cannot do anything until HO amends EEA regulations and only then further action can be taken. But to put you at ease, HO has nothing to lose by saying that you are not covered under TA hence you fall under UK immigration rules, but they did not say that instead they first said they would amend eea regulations as soon as possible and the last response was that you can apply for PRC even after your spouse has acquired Dual nationality. Please visit what do they know site.

The worse case scenario HO will not give us PRC but we will be here lawfully with our spouses by retaining residence card or later settled status and I am sure eventually we will acquire indefinite leave. The thing is we want to be with our families, it hurts that we may not acquire PRC now (which I hope we will) but end of the day we want to live with our love ones and you can live here with them under Lounes. We did a genuine mistake by one of the spouse acquiring BC and pay back could be we end up applying under UK immigration rules, which is not the case right now, this thing at least put me at ease.

[silverman123]

Once again
Must not be stricter than those who provided by the directive 2004/38
Means
Equality of all the rights to directive 2004/38
It means.
Thr length of the residence card.
Money for application.
Processing time for application.
After 5 years people are qualified for permanent residence. (equal to the directive)
On the other side.
Article 21
Equal treatment
1. In accordance with Article 24 of Directive 2004/38/EC, subject to the specific provisions provided
for in Titles I, II and IV of this Part, all Union citizens or United Kingdom nationals residing on the
basis of this Agreement in the territory of the host State shall enjoy equal treatment with the
nationals of that State within the scope of this Part. The benefit of this right shall be extended to
FAMILY MEMBERS of Union citizens or of United Kingdom nationals and who have the right of
residence or permanent residence.
WE ARE NOT PRIMARY CARERS like other derivative so DON'T WORRY we WILL CONTINUE as we are to our permanent residence.
And LOUNES had to be determined by high court they just confirmed the face of the judgment that's all.
This is my opinion

[chaoscontrol]

Thanks for explainings `kam999` and `silverman123` .

Hopefully HO will recognise PR as a one of the statuses covered by Lounes ,

different way all this hell going to continue another 5/10 years for us all untill we will be able to apply for `indefinite leave to remain`,


or if we can not apply for anything even after another 5/10 years then we will be like in space - in the middle of nowhere ...

.. and without any proper status , where UK goverment may say - we still need to apply under UK rules or get out of here !

[reynaldogr]

Hi Gents,

Don't want anyone to panic but will be interested to know your opinion on something that just came across to my mind.

No one has said that the Lounes Case will apply retrospectively. There is still a possibility that our Non-EEA spouses would have broken their lawful 5 year residence continuity , by the time we became BC hence, even though now there is a precedence dictated by the EJC judgement on this matter and HO abiding for it recently, the application of the Lounes Case could just start basically from the 14/11/17 onwards, and anything that happened in the past, would be treaty as per the previous rules.

I'm saying this, because from the HO financial point of view, if this isn't the case (hopefully for us it is) the HO could potentially end up giving back lots of money from people trying to revert back to the EA spouse route (pretty much cost free) instead of having to spend thousands of pounds through the BC spouse route, as they would have been entitled to if the Lounes Case would have been implemented before. I reckon there is someone in this forum that is actually claiming this money back already (I'm not sure, as i have now lost track of all the individual cases).

So basically, if the Lounes Case apply retrospectively, anyone who was affected by the TA until now, that have already gone through the BC spouse route, will be entitled to a compensation.

In the other hand, if the Lounes Case won't apply retrospectively, Our Non-EA spouses, may end up having to start all over again applying from outside UK, for yet another Residence Permit (weather or not this would be considered towards their permanent residence is also still open, but i agreed on this with Silverman123 and Kam999 point of view).

I know this may seem as a total non sense from any logical point of view, but at the end of the day, has this mess with got ourselves into, ever got any sense at all? For me, this all comes down to making money out people seeking to stay in UK and also reducing the number of immigrants at the same time. Whatever comes, will be a benefit for the HO regardless.

Br

[silverman123]

@Reynaldogr
I had the same way of thinking one day about what if home office is going to consider applications for dual nationality on and after 14.11.2017.
But if we stay and think this is it does not sounds right. Why!!??? The whole ARGUMENT was about eu national exercised their treaty rights before they naturalised.
So it Doesn't matter when or where or what year.
Exercise the Treaty rights is Exercise the Treaty rights without anytime restrictions.
But i got your point anyway.
For example people who got married to BC on 2010 they only qualify for 2.5 years then indefinite leave to remain.
But people who married on 2014 to BC will qualify for 5 years because simply the law changed.
So who married in 2014 will only qualify for indifintte leave to remain after 5 years not 2.5 years.
Both are updates BUT both are different.
Lounes is simply correcting the wrongs.
Even the TA the story of who applied on (16 july 2012 will remain EEA and who applied after that date will never qualify and leave to enter under immigration rules) they will have to amend it in the new regulations
Otherwise we will not qualify for permanent.
To be honest home office will change and amend alot of things since the judgment of lounes has ruled.

[silverman123]

Also we need to forget about leaving the country and apply from abroad.
Lounes him self was illegal and he will stay under eu law now because usually even if someone is illegal and married to eu citizen still can make applications under eu law. (even though who got dual nationality now)
You know guys what we have to think the Most is TA
Will Home office cancel or amend The Transitional Agreement!!
In my viewpoint they will have to change it.
i seen on home office confirmation to A AWAN by saying your wife can naturalised and he can apply for his permanent residence next year as he will be considered eea family member.
What do you think guys about TA??

[Obie]

Home Office has been using ploy to resist appeal, saying they are withdrawing the decision on day of hearing.

Appellant should seek to resist that and ask that appeal proceed, and if Home Office withdraw make a threat of wasted cost.

[Malik_01]

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

You may be right about this case. The lawyer came back to me saying that I already have RC and it is entirely different case and told me to contact his chamber.

[kam999]

Hi guys,

Please don't panic, wait for the amendments, if HO is recognising our applications then any lawyer opinion will be over ruled unless we have final verdict of HO.

Yes, it is correct that our situation is different compare to lounes but if Lounes would not have taken the initiative then one of us would. If they will not give us what we are after then another case in regards to PRC will be referred to ECJ and ECJ will take our side.

For now what we need to do is unite as we are may be max in 3 digits. But a team work will work for everyone's favour. Frankly, whoever i visited, i didn't get much positive response but my instinct is saying that things will work out in our favour.

[Malik_01]

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

Was that refer to A Awan? if yes, then it's me

[Obie]

Any lawyers saying Lounes does not affect PR only RC is talking nonsense.

The scope and reasoning in Lounes is capable of having extensive application.

[silverman123]

@malik 01
Then you should be happy it's a confirmation from Home Office.
By the way you have two confirmations.
Next time follow up with us and share your opinion.
Some solicitors they give you the law from a piece of paper that's all.
And yes we know that all of us having RC and we are looking for Permanent residence.
But why not the home office will not issue us one???
Something just came across my mind
Lounes will have his RC very soon.
He married in 2014.
Then he will apply for his permanent residence next year as he will complete his 5 years marriage 2019.
So he will only keep his residence card just for 1 year.
Why!!! And how !!!!???
Simply equal to the directive 2004/38
must not be stricter than those who provided by the directive 2004/38.
Maybe some of you will tell me he will has to held his residence card for 5 years. Ok, whatever
What about the Transitional agreement of 2012!!!!???

I'm sure home office will amend it otherwise lounes him self will stuck once again when he applying for his permanent residence.
Which it doesn't make any sense at all.
The judgement has ended this already.

[silverman123]

@Obie

Thank you for your support ]

[reynaldogr]

Home Office has been using ploy to resist appeal, saying they are withdrawing the decision on day of hearing.

Appellant should seek to resist that and ask that appeal proceed, and if Home Office withdraw make a threat of wasted cost.

Dear Obie,

Could you please explain what did you mean in this post?

Clarification would be appreciated

Many thanks

[silverman123]

@malik01
Did your wife naturalised on 16 of April or did you guys cancel it?

[Malik_01]

@malik 01
Then you should be happy it's a confirmation from Home Office.
By the way you have two confirmations.
Next time follow up with us and share your opinion.
Some solicitors they give you the law from a piece of paper that's all.
And yes we know that all of us having RC and we are looking for Permanent residence.
But why not the home office will not issue us one???
Something just came across my mind
Lounes will have his RC very soon.
He married in 2014.
Then he will apply for his permanent residence next year as he will complete his 5 years marriage 2019.
So he will only keep his residence card just for 1 year.
Why!!! And how !!!!???
Simply equal to the directive 2004/38
must not be stricter than those who provided by the directive 2004/38.
Maybe some of you will tell me he will has to held his residence card for 5 years. Ok, whatever
What about the Transitional agreement of 2012!!!!???

I'm sure home office will amend it otherwise lounes him self will stuck once again when he applying for his permanent residence.
Which it doesn't make any sense at all.
The judgement has ended this already.

I did write to the forum but I guess everyone was busy with the solicitors and their higher fees. I also ended up paying to IAS immigrations. They charged me over £100 for 1 hour and did not refer to any legislation and kept saying "everything is fine in your case".

We pay them and all we get their non sense. Reference to the law and commenting on the topic, that's all I initially requested from them.

Those who are waiting need to keep patience with the Launes case, as they are already going through the structural changes and it may take few more weeks to implement the judgement.

Hope this helps your query

[Malik_01]

@malik01
Did your wife naturalised on 16 of April or did you guys cancel it?

We had to postponed it and currently waiting for the Home office reply.

[Malik_01]

@malik01
Did your wife naturalised on 16 of April or did you guys cancel it?

We had to postponed it and currently waiting for the Home office reply.

@silverman123

What is your situation? Are you a Non EEA national? if yes, did you apply for PR yet?

Sorry, I am lost in the thread now.

Thanks

[silverman123]

Make sure you will have more than one confirmation from home office before your wife naturalisation. And best of luck man

[silverman123]

Yes I'm non eu national i will apply for my PR within days from now.

[silverman123]

Hi Guys.
Quick question just came across my mind for a reason ?
Can you please you share your opinions?
As you aware in lounes judgement para 61 says
61      The conditions for granting that derived right of residence must not be stricter than those provided for by Directive 2004/38 for the grant of a derived right of residence 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 that of which he is a national. Even though Directive 2004/38 does not cover a situation such as that mentioned in the preceding paragraph of this judgment, it must be applied, by analogy, to that situation (see, by analogy, 
As we are aware that lounes got married in 2014
And now he is waiting for his residence card.
Will he qualify for permanent residence next year!!!???
Since he became a family member 2014 so all this years he been
waiting shouldn't be wasted!!!
I spoke to my solicitor he told me that my words make since because he equal to the directive
What do you guys think???

[Malik_01]

Hi Guys.
Quick question just came across my mind for a reason ?
Can you please you share your opinions?
As you aware in lounes judgement para 61 says
61      The conditions for granting that derived right of residence must not be stricter than those provided for by Directive 2004/38 for the grant of a derived right of residence 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 that of which he is a national. Even though Directive 2004/38 does not cover a situation such as that mentioned in the preceding paragraph of this judgment, it must be applied, by analogy, to that situation (see, by analogy, 
As we are aware that lounes got married in 2014
And now he is waiting for his residence card.
Will he qualify for permanent residence next year!!!???
Since he became a family member 2014 so all this years he been
waiting shouldn't be wasted!!!
I spoke to my solicitor he told me that my words make since because he equal to the directive
What do you guys think???

Did your wife become British after you acquired your RC?
I think if you stayed legally in the country on your RC and have no other criminal history, then HO should consider your 5 years towards your PR under the EEA regulations. Atleast, this is what I have learnt from the replies I got until now.
Good luck and keep us posted