Spouse of UK/EEC national now in UK

[mashkiach]

A British citizen was only ceremonially married to an American over a year ago. Both have been living here in England since, but the American, as a visitor having to leave and come back again every 3 to 6 months. This British citizen has also verified their polish citizenship and therefore has dual nationality. To date the official polish paperwork has not yet arrived. This may still take a couple of months.
What route is best for the American spouse to take?

[vinny]

Are they legally married?

See also 2. Procedural comparison.

[mashkiach]

Are they legally married?

Not yet but in the next few weeks.

[mashkiach]

See also 2. Procedural comparison.

After going over the pages I have been so kindly guided to, it looks as this is the route to take.
1) Go ahead with the marriage.
2) Expedite the polish citizenship.
3) Send in a completed EEA2.
My questions now are do we notify the HO now that the third national is in this country? Or better phrased from what time can we count him living here?
Do we use the old form where it does not ask if the EEC national is British as well?
Are there any preconditions attached to the EEC national (dual British) staying here?
Are there any preconditions for the spouse staying here?

[Directive/2004/38/EC]

It sounds like you do not have a history of using your Polish citizenship. A recent ECJ case (McCarthy) means that UK could effectively ignore your Polish citizenship.

Have you lived in another EU member state at all? Thinking of it?

[mashkiach]

If the dual national obtains a polish passport goes out and than comes in to the UK with it would this be enough?

[Greenie]

If the dual national obtains a polish passport goes out and than comes in to the UK with it would this be enough?

no

[Directive/2004/38/EC]

If the dual national obtains a polish passport goes out and than comes in to the UK with it would this be enough?

If you did something substantial on the basis of your Polish citizenship then it might, for example you went to Germany on your Polish passport and worked there for a few months. Or for example if you renounced your British citizenship

[mashkiach]

1) If the spouse applies for a residence card for Germany at the German embassy in the UK would this suffice?
2) If this card is used to come in to the UK would this suffice?

[Directive/2004/38/EC]

1) If the spouse applies for a residence card for Germany at the German embassy in the UK would this suffice?
2) If this card is used to come in to the UK would this suffice?

Law is made on the edges.

If you went to Germany on the basis of your Polish Citizenship?
Came back to the UK and entered on your Polish passport?
If you gave your employer your new passport as proof of your ability to work?
If you opened up some bank accounts with the new passport?
Maybe!???

Alternatively if you worked in Poland for a while and got an RC there, then you are likely Golden!

[mashkiach]

Is not taking with a non EEC spouse an exercise of free movement? So if both go to Germany on the basis of the polish citizenship, the spouse has to be granted entry than the right of free movement is used. Am I missing something?

[Jambo]

The HO would probably argue that a single incident of using your Polish citizenship doesn't really counts. You could of course appeal but this could be a long process.

If you go to Germany (even with your British passport), work and live there with your partner for a few months and then come back (even with your British passport), then it is a clear use of treaty rights.

However, instead of trying to workaround the system, wouldn't it be simpler (and cost effective compared to moving to Germany) just to apply for a UK spouse visa once you are married?

[mashkiach]

wouldn't it be simpler (and cost effective compared to moving to Germany) just to apply for a UK spouse visa once you are married?

At the best part of £2000 for the visa no it is not cost affective.

I understand that McCarthy had never worked and therefore was never able to assert the Irish citizenship freedom of movement. This was the question originally posed by the UK. However the reply was way stronger. It seems that even has she worked she would have stayed British. I have read on the UKBA site the following. The intention is to amend the Regulations to reflect the terms of the McCarthy judgment, however until such time as Regulation 2 is amended, entry clearance officers/caseworkers will need to continue to treat dual British/EEA nationals as though they are EEA nationals when considering an application for documentation under the Regulations. Evidence of the EEA nationality must be provided. I think that they are referring to The Immigration (European Economic Area) Regulations 2006 Regulation 2 “EEA national” means a national of an EEA State. This translates that as long as one has an EEC nationality irrespective if one has British as well. Is this correct?

[Jambo]

Your understanding is correct.

Another point worth considering is that although the spouse visa is costly, it does offer a shorter path to settlement (2 years) and citizenship (3 years) compared to the EEA route (5 years for settlement + citizenship).

[Directive/2004/38/EC]

EUN2.16 Can family members of dual British / Irish nationals qualify for an EEA family permit?

The intention is to amend the Regulations to reflect the terms of the McCarthy judgment, however until such time as Regulation 2 is amended, entry clearance officers/caseworkers will need to continue to treat dual British/EEA nationals as though they are EEA nationals when considering an application for documentation under the Regulations. Evidence of the EEA nationality must be provided.

This is interesting. And suggests that a RC application might succeed. I would do it quickly!

[mashkiach]

The HO would probably argue that a single incident of using your Polish citizenship doesn't really counts. You could of course appeal but this could be a long process.

I realize that currently as the regulations stand we can squeeze it through. But it is for a limited period that it will be so. I was thinking more and more about treaty rights. What exactly are the treaty rights that one is to exercise? I had mentioned one about bringing a third national spouse to another EEC country as a visitor (a day trip to France) but it was held in this forum that it may not be enough. I suppose starting a business there may be another. Or not even.

[Directive/2004/38/EC]

McCarthy was a pretty extreme case. It is not even clear she had ever travelled outside the UK.

But pondering about treaty rights is worthwhile. Over time, what has counted has expanded.

See http://eumovement.wordpress.com/2011/12 ... -a-worker/

[mashkiach]

It seems that being a director of a company in another EEC state is already deemed as exercising a treaty right.

Explanatory Leaflet for FORM EU2 (Irish)
Exercise of EU Treaty Rights
An EU citizen residing in the State exercises their rights under the Regulations and the Directive by engaging in one of the following activities, as outlined in Regulation 6(2)(a) of the Regulations.
…………..
Self-employment
Where the EU citizen is a sole trader, in a business partnership, or is a proprietary director of a registered company operating in the State.

[Directive/2004/38/EC]

It seems that being a director of a company in another EEC state is already deemed as exercising a treaty right.

Explanatory Leaflet for FORM EU2 (Irish)
Exercise of EU Treaty Rights
An EU citizen residing in the State exercises their rights under the Regulations and the Directive by engaging in one of the following activities, as outlined in Regulation 6(2)(a) of the Regulations.
…………..
Self-employment
Where the EU citizen is a sole trader, in a business partnership, or is a proprietary director of a registered company operating in the State.

I would suggest you include links to things you refer to. I can't read the context of this quote, so it is not clear to me what it applies to and how general it might be.

[mashkiach]

I would suggest you include links to things you refer to. I can't read the context of this quote, so it is not clear to me what it applies to and how general it might be.

I have taken it from here
http://www.inis.gov.ie/en/INIS/Form%20E ... eaflet.pdf

[Jambo]

No need to go to Ireland for this info. The HO website also states that self employment is considered exercising treaty rights. See Residence documents for European nationals.

[mashkiach]

No need to go to Ireland for this info. The HO website also states that self employment is considered exercising treaty rights. See Residence documents for European nationals.

I agree but it does not say that being a proprietary director of a registered company operating in the State is already an affirmation of self employment.

[mashkiach]

My question remains. What rights does one have to exercise in order to establish the EEC nationality? As far as I can make it out ‘freedom of establishment’ should suffice. This may be very easy to fulfill.
I have come across these two cases that may give me some direction.


"So, a national of a Member State who has a holding in the capital of a company established in another Member State which gives him definite influence over the company's decisions and allows him to determine its activities is exercising his right of establishment." Case C-251/98 C. Baars [2000] ECR I- 2787 §22

"The right to acquire, use or dispose of immovable property on the territory of a Member State is the corollary of freedom of establishment." Case C-305/87 Commission v Greece [1989] ECR 1461 §22