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UK_Lawyer
UK_Lawyer, Solicitor
Category: UK Immigration Law
Satisfied Customers: 2047
Experience:  I am a qualified solicitor and an expert in UK law.
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I have British/Irish/Serbian citizenship and my fiancée is

Resolved Question:

I have British/Irish/Serbian citizenship and my fiancée is a Serbian citizen

I was born in what was Yugoslavia at the time
In 1989 I moved to Republic of Ireland
In 1995 I applied for and received Irish citizenship
In 1996 I moved to UK
In 2005 I applied for and received British citizenship
Currently I am in UK

Thus I exercised my right, under Article 3(1) of Directive 2004/38, to move and reside freely within the territory of EU Member States. I have done that in 1996, i.e. 9 years before I got the British citizenship.

My fiancée was born in Serbia, has Serbian Citizenship and is currently in Serbia

We know each other since 1977, but have started a relationship only in 2004. Now we’re planning to get married, and we would like to do that in February, 2014, outside UK.

I am trying to make a decision how to then bring my future spouse to live with me in UK. I am considering options of using my Irish Citizenship and EEA Family Permit route, or using my British Citizenship and Entry Clearance as a partner (i.e. spouse) route.

However, in making this decision, I am concerned that the ruling of the ECJ in case C-434/09 (Shirley McCarthy vs Secretary of State), has now a wider application and doesn't apply only to those that have never exercised their right to move within the territory of EU, but to all dual citizenship nationals, whose one nationality is British.

I say this, as it seems that the Home Office has now used this ruling to change the definition of an EEA National in regulation 2(1), as of the 16/07/2012, to say: “A national of an EEA State who is not also a UK national”.

Thus, if I am interpreting all this correctly, I would say that the only route that I can bring my future spouse to live with me in UK, is via my British Citizenship. And only if the Home Office rules against allowing her to join me, without a good cause, can I use my Irish Citizenship route.

Would you be so kind as to clarify this for me, please?

Thanks...
Submitted: 9 months ago.
Category: UK Immigration Law
Expert:  UK_Lawyer replied 9 months ago.
Hi, thank you for your question. Please remember to rate my service so I am credited for my time.

That is correct the home office have limited the interpretation of the regulation to only include European citizens and not citizens who also hold british citizenship purely because they believe that as a British citizen you do not have any restrictions on your stay and also do not need to be exercising treaty rights in the uk. Therefore you would need to apply using your British citizenship to bring your partner to the uk.

Your other option would be to bring your partner to the uk under the surinder Singh rule. Let me explain this further.

As a general rule, family members of British citizens do not qualify for an EEA family permit. Article 3 of the Directive essentially says that an EEA national cannot be considered as exercising freedom of movement in their own State -

This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

However, where an EEA national has exercised a treaty right in another Member State as a worker or self-employed and they wish to return to their own State having exercised that right, certain provisions may apply in order for their non-EEA family members to qualify under the EEA Regulations.

A British national and his / her non-EEA national family members can only benefit from free movement rights if they meet the criteria established in the ECJ case of Surinder Singh. The case stated that nationals of a Member State who are exercising an economic Treaty right (that is, as a worker or self-employed person) in another Member State will, on return to their home state, be entitled to bring their non-EEA family members to join them under EC law.

Example: A British national is exercising an economic Treaty right in Germany and living with his non-EEA national spouse and children. On the British national's return to the UK, his non-EEA national family members can apply for an EEA family permit to join him under EC law.

The Surinder Singh judgment is incorporated into the EEA Regulations in Regulation 9. Family members of British nationals who meet the requirements of Regulation 9 are treated as family members of EEA nationals for the purposes of the EEA Regulations.

Applications for EEA family permits must meet the following criteria:

The British citizen must be residing in an EEA Member State as a worker or self-employed person or have been doing so before returning to the UK.

If the family member of the British citizen is their spouse or civil partner, they are living together in the EEA country or must have entered into the marriage or civil partnership and have been living together in the relevant EEA country before the British citizen returned to the UK.

Because EEA nationals have an initial three months right of residence in the UK, there is no requirement for the British national to be a qualified person on arrival. Therefore, an EEA family permit can be issued to the non-EEA national family member of a British national even if they are only visiting the UK with the British national before returning to the Member State where they are resident.

I hope this answers your question if so kindly rate my answer positively so I can get credited for my time. If however you feel that the answer does not cover all the points raised in your question please DO NOT rate my answer negatively I will be happy to answer further question until you are satisfied with my answer.

Kind regards
Customer: replied 9 months ago.

Hi,


 


Thanks for such a quick response. I am aware of the Surinder Singh ruling. Alas, this does not and will not apply in my case.


 


So, just to be clear, regardless the fact that I was initially born in Yugoslavia, that I then obtained the Irish citizenship, then exercised my right of move and THEN obtained British citizenship, under the Home Office interpretation of the McCarthy case, I cannot use my Irish Citizenship.


 


Is this correct?


 


It does seem that the Home Office has taken,as you say, a broader view from the ECJ judgement. Now whether this view is strictly in line with the judgement, or not, I am not willing to challenge. But I DO want to be absolutely clear that this is the view they took and that this route is now closed for us.


 


Taking the route via my British Citizenship is not a problem per se, but it is complicated, lengthy and expensive. So, I would hate to miss a much simpler, quicker and cheaper route, just because I am not sure.


 


So, your comment will help reassure us that we're choosing the ONLY option.


 


Thanks...


 


Regards


 


Nenad Balint

Expert:  UK_Lawyer replied 9 months ago.
Thank you for your reply.

Where a person has applied on the basis that they are a dual British citizen/EEA national on or after 16 July 2012 then the application must be refused unless the person either:

Meets the provisions of regulation 9 (which gives effect to the ECJ case of Surinder Singh or

Comes within the scope of the transitional arrangements set out below.

The provisions of the transitional arrangement apply where a person:

Has a right to permanent residence in the UK in reliance on the previous definition on the 16 July 2012 or

Has a right to reside in the UK on 16 July 2012 and on 16 October 2012 either:

i. Holds a valid registration certificate or residence card issued under the 2006 Regulations, or
ii. Has made an application under the 2006 Regulations for a registration certificate or residence card which has not yet been determined
iii. Has made an application under the 2006 Regulations for a registration certificate or residence card which has been refused and in relation to which an appeal under regulation 26 could be brought whilst the appellant is in the UK or is pending.

The transitional arrangements apply until:

The six month validity period to enter the UK in reliance on a family permit has expired and the family has not entered the UK.
Any appeal can no longer be brought
Any appeal is dismissed, withdrawn or abandoned
The person ceases to be the family member of the EEA national
Any right of permanent residence is lost as a result of absence from the UK

This means that once a right is lost, appeal rights against a claimed right are exhausted or a family permit is not used, reliance can no longer be placed by that person on the previous definition of an EEA national.

The fact is that your case is different from the McCarthy case as you have exercised treaty rights in the uk prior to obtaining citizenship and also are currently working or self employed in the uk. In the McCarthy case the applicant had never been to Ireland and at the time of application was not exercising treaty rights, therefore contrary to what I stated in my previous answer I suggest you apply under the eea regulations stating that you are a dual national and then provide as much documentary evidence as possible confirming you having exercised treaty rights in the uk.

It may be the case where you may have to convince a judge that your case is fundamentally different from that of McCarthy, but you do have a chance of obtaining a positive outcome.

I would suggest you apply under the eea regulations and then wait for a decision, the applications are cheaper and you could at least try and obtain a decision in your favour.

I hope this answers your question.

Kind regards
UK_Lawyer, Solicitor
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Experience: I am a qualified solicitor and an expert in UK law.
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