UK settlement visa - double nationalities case

[kerr17]

Hi, I'm an Italian/UK citizen and planning to relocate with my unmarried partner and our 2 young kids (6 and 2) to UK within this year.

My kids and I would have no problem while my Thai partner will need a UK settlement visa.

I was told that using my Italian passport would be easier to apply but I was mainly using my UK passport here in Thailand for stamps and visas.

So I did everytime we ask for her tourist visa in the past without any problems.

Can I still apply for her by using my Italian passport even though I would be use my UK passport for stamps and evidence of being here with her for over 2 years?

What would be the easier option on my case?

[Basil B]

I think the answer is no...

( All EU National not just Irish)

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

Until 16 July 2012 persons who held British citizenship and who were also nationals of another EEA member state could rely on that EEA nationality to benefit from the terms of the Directive. This was because Regulation 2 of the 2006 Regulations did not preclude such dual national British citizens from benefitting from free right movements.

The definition of EEA national in Regulation 2 was amended on 16 July 2012 to preclude dual British citizens/EEA nationals from benefitting from the Directive and therefore also to preclude their family members from relying upon free movement rights.

The McCarthy judgment determined that a person who holds the nationality of the host Member State (in our case British nationality) and has never exercised their right of free movement and residence does not benefit from the terms of the Free Movement Directive. This is regardless of whether or not they hold dual nationality with another member state. This means that family members are also unable to derive a right of residence under the Directive on their basis of their relationship to such a national. British citizens can only acquire free movement rights in certain scenarios and so are in general prevented from circumventing the requirements of the Immigration Rules when sponsoring entry to the UK of family members.

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:

The transitional arrangements apply until:

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 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 UKThis 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.

https://www.gov.uk/government/publications/eea-family-permits-eun02/eea-family-permit-eun02

Edited February 12, 2015 by Basil B

[kerr17]

Unfortunately I thought so, thanks

[Thai at Heart]

As an Italian citizen she has automatic right to join you. This is the ultimate injustice of this horrible law.

[7by7]

No, she does not; because the OP is also a British citizen.

See Basil's post above.

This is not an arbitrary UK government decision, it follows a ruling by the European Court of Justice.