Eea family permit. McCarthy decision

[Outsidein]

Sorry if I've missed info on this in my searching.  Happy to close topic if its covered elsewhere

 We've recently been refused a eea family permit to the UK  for the reasons below.

 

It was the route our UK immigration lawyer advised,. To bring my Thai wife to the UK And he now recommends we appeal in the UK as the embassy have misconstrued the finding

as it only applies to someone who has not asserted that other nationality.  Can anyone comment,. I can't see the decision having no precedence.

 

The definition of EEA National in Regulation 2 was amended on 16th July 2012 to preclude dual British citizens / EEA Nationals from benefiting from the directive. The McCarthy judgement determined that a person who holds the nationality of the host member State 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 or not of whether 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 the basis of their relationship to such a national.

Edited November 16, 2016 by Outsidein
Clarity

[bobrussell]

If you have worked and lived elsewhere within the EU but not including countries that you are a national or dual national then you have exercised your right to free movement under the directive.

If you are Irish and British and have worked/lived in France then you should benefit as you have exercised your right to free movement.

As I understand it in this situation living in Ireland or the UK will not count if you hold both nationalities but should if you hold one and live in the other!!

I claim no true level of expertise beyond the ability to decipher some of the Euro language.

If we can know a little more detail about your situation it may be possible for the more knowledgable to comment!

Normally I would say go with your immigration lawyers advice. Having said that some lawyers are not as all knowing as they would like to appear.

 

[Donutz]

Indeed Bob, we need more information.

 

If the Outsidein lived elsewhere in the EU/EEA with the Thai spouse they will have excersized their freedom of movement and could return to the UK to settle there (Surrinder Sign route, also known as EU route. Though if they did live elsewhere in the EU/EEA area the Thai spouse should have been issued a residence card stating 'family member of  an EU/EEA national' and visa free entry to the UK would be possible (untill december 2014 or so the UK demanded that these people applied for a free EEA, minimum hassle and paperwork etc. but the McCarty* case ruling of december 2014 confirmed that the UK was wrong to demand this and allow visa free travel instead).  *not to be confused with an earlier case from 2011 by an other McCarty family. In this earlier case it was about a dual UK-Irish national and if they could also excersize freedom of movement or not. The court ruled that freedom of movement rights did not apply here. See: http://theeuropeancitizen.blogspot.nl/2011/05/curious-case-of-citizen-mccarthy.html

 

So, what nationalities does the topic start have? In which countries has the OP lived/resided? And the Thai spouse? What exactly is there plan (trip or settling in the UK)? 

 

 

[7by7]

I think, Donutz, that the OP is not asking about the 2014 McCarthy judgement, but the 2011 one.

 

From what he has said I think he has dual British/other EEA nationality and wanted to use his other EEA nationality to bring his wife to the UK under the EEA regulations using his other EEA nationality.

 

Outsidein,  as with anything to do with the law, especially EU law, this is complicated; the following is my understanding, but I stand to be corrected by those more knowledgeable than I.

 

EEA freedom of movement rights do not apply when entering the member state of which one is a citizen.

 

The rights of non EEA national family members of an EEA national are dependent upon the EEA national's rights; the non EEA national has no rights on their own.  So as these rights are not applicable when entering one's home state, they are also not applicable to one's non EEA national family members who wish to enter one's home state, except in certain circumstances such as Surinder Singh. Even then their rights are dependent upon the EEA national's rights.

 

Ms McCarthy argued that because she was an Irish as well as British citizen she could use her Irish citizenship in order to obtain UK residence for her husband in the UK under the EEA regulations.

 

The Home Office disagreed with her, as did every appeal court right up to the European Court of Justice.

 

From Donutz's link

Quote

This is essentially what happened to McCarthy, who had never left the UK, nor been a worker under EU law. She applied for an Irish passport, which she got, and tried to assert her EU citizenship rights (based on her Irish citizenship) to bring her spouse from a third country (not an EU citizen himself) into the UK to live with her. Could she rely on her EU citizenship?

 

The simple answer is that the court ruled she couldn't, because she had never exercised her treaty rights in an EEA country other than one of which she is a citizen, in her case the UK and RoI, and therefore her freedom of movement rights were not restricted.

 

As an aside, had she been living and exercising a treaty right in a third EEA state, e.g. Spain, then her husband could have used the EEA regulations to join her there and then used the Surinder Singh judgement to move back to the UK with her; provided all the requirements were met, of course.

 

Another commentary on the judgement from Colin Yeo's Free Movement.

 

The judgement itself.

 

Your immigration lawyer should have known all this and advised you that unless you had previously exercised a treaty right in order to live in an EEA state other than those of which you are a citizen that any application under the EEA regulations would fail. Their comment that

22 hours ago, Outsidein said:

it only applies to someone who has not asserted that other nationality

is, I believe from reading the judgement and the expert opinion of people like Colin Yeo, wrong.

 

So the first question is; have you ever exercised a treaty right in order to live in an EEA state other than those of which you are a citizen?

 

 

[Outsidein]

First,  thank you all for your  replies and taking an interest.  

 

From your replies and links quoted I do seem to fall squarely foul to the McCarthy decision.  As I have only ever lived and worked in the UK. And have dual Spanish/UK nationality. 

 

Thou my lawyer still seems to think I have a case to appeal as I have had my Spanish passport since 2006. 

[bobrussell]

I am not happy to second guess a qualified immigration lawyer but I cannot see how he or she is right!

If you are a British citizen and want to use EEA law to allow residence for a non-EEA spouse in the UK then I cannot see how you can use Spanish dual nationality to achieve this.

A legal challenge has been made and rejected right up the line of appeals and it has been shown that you have not exercised your right to free movement unless you have lived/worked/established life in a country that you are not a citizen of. (Sorry lousy grammar!)

Not sure you are being well advised and cannot see the relevance of 2006.

[Donutz]

Indeed Bob, I concur 100%.  

[7by7]

19 hours ago, Outsidein said:

Thou my lawyer still seems to think I have a case to appeal as I have had my Spanish passport since 2006. 

 

Like bobrussell and Donutz, I cannot see how your lawyer can be right.

 

It matters not that you have had a Spanish passport since 2006, i.e. before the judgement in 2011; Mrs McCarthy had her dual nationality before the judgement as well!

 

From everything you have posted, you are in exactly the same position as she was, and every court right up to the highest, the ECJ, found in favour of the Home Office.

 

Of course, we are only laymen; I'm not sure of the qualifications of the author of the blog Donutz linked to, though suspect they are a lawyer; and Colin Yeo, whom I linked to, is a highly qualified and experienced immigration lawyer.

 

I suggest that you show those two links to your lawyer and ask for their comments.

 

As I see it you have three options.

 

1) You have, I assume, already paid a significant fee to your lawyer, you can pay even more to follow their advice and attempt an appeal. Plus any costs you may be charged by the tribunal (some appeals now attract fees, I'm not sure if those for refusal of an EEA family permit now do).

 

2) Seek a second legal opinion before proceeding; which, of course, you'll have to pay for.

 

3) Bite the bullet and, assuming you meet the requirements, have your wife apply for settlement as a spouse under the UK immigration rules. This is, of course, expensive; but may very well be less so than the further legal and other fees you could end up paying if you try to appeal the EEA permit refusal only to find you have lost the appeal.

 

If you can't do this because you do not meet the financial requirement then you have my deepest sympathy; but throwing good money after bad in what appears to be a fruitless attempt to overturn what was a correct, in law, EEA family permit refusal is pointless.

Edited November 19, 2016 by 7by7