EEA naturalises_impact on family member

Brit Cits <[email protected]>

Your Europe Advice enquiry 169115

[email protected] <GROW-

[email protected]>22 April 2015 at 22:35

Reply-To: [email protected]

To: [email protected]

Dear Sir/Madam,

Please find below the reply to your enquiry. Please note that the advice given by Your Europe Advice is an

independent advice and cannot be considered to be the opinion of the European Commission, of any other EU

institution or its staff nor will this advice be binding upon the European Commission, any other EU or national

institution.

Dear Madam:

Thank you for getting in touch with Your Europe Advice.

You would like to know what is the impact for the family member of an EU citizen living in the UK, whereby

following 5 years residence and being eligible for it, the EU citizen becomes naturalized as a UK citizen?

In other words, Does this family member now lose their UK RC status or is it retained and specifically, would they

have to:

i) apply as the spouse of a British citizen under domestic immigraiton rules, or

ii) apply as the family member of a British citizen, but under the Surinder Singh route, based on earlier residence

in another member state (country of nationality)

The answer to the questions above is yes.

Where the transitional provision does not apply (see below for more details), the family member must either

regularize their status under UK domestic legislation, or come under the application of the Surinder Singh

caselaw.

A preliminary remark that has to be made is that the UK Government is under intense political pressure to restrict

free movement law.

Thus, despite the fact that in the example provided in your post, the EU citizen has travelled to the UK, exercised

his/her rights of free movement for a period of 5 years, the EU citizen is not able to invoke his EU nationality

(other than his UK nationality), if he is also a UK citizen, on the back of a definitional provision in the amended

EEA Regulations, which enacts a restrictive interpretation of EU caselaw (see note below).

Accordingly, once the EU citizen becomes a UK citizen, this brings about the consequence that the only way the

newly naturalized UK citizen can avail himself/herself of EU law, for the benefit of his existing family member (or

future family member), is to satisfy the conditions under the Surinder Singh caselaw.

The above flows from the UK's restrictive stance on the scope of free movement for dual UK/EU citizens, derived

from the UK interpretation of Case C434/09, concerning a dual national who held both the nationality of her

Member State of residence and the nationality of another Member State of the European Union.

The Court of Justice of the European Union held that the dual citizen could not rely on Directive 2004/38 in order

to regularize the immigration status of her spouse, given the specifics of the case, (the EU citizen could not prove

having exercised any of the rights of residence under article 7 Directive 2004/38).

This is a very important factor to emphasize, (the person in question had never exercised any of the rights of

residence in the UK (her country of nationality and residence)).

Gmail - Your Europe Advice enquiry 169115 https://mail.google.com/mail/u/0/?ui=2&ik=62b7ef7c5d&view=pt&se...

1 of 3 22/04/2015 22:50

Case C 434/09 concerned a dual Irish/UK citizen who was born in the UK, and had lived all her life in the UK.

She could not prove having ever worked, been self sufficient or studied in the UK. At the time of the application

for the visa, she was on benefits.

• A broad reading of McCarthy would argue that dual UK/EU citizens fall within the scope of Directive 2004/38

where the said dual citizen has exercised Treaty rights in the UK.

Accordingly, we would contend that a dual UK/EU citizen who has exercised his Treaty rights in the UK, (which

necessarily occurs in the case you raise) does indeed fall under the scope of Directive 2004/38. In the light of

McCarthy, we would further submit that it is only where the dual EU/UK citizen has not exercised any Treaty

rights at all that he/she is not able to rely on Directive 2004/38, in the Member State of his/her nationality.

• Predictably, the UK is taking a restrictive view, with the result that dual British/EU citizens fall outside the scope

of Directive 2004/38, irrespective of whether they have exercised rights of residence in the UK, as a worker, self

sufficient person or self employed person in accordance with article 7 Directive 2004/38.

Accordingly, the only way for dual citizens to come under the application of EU free movement law in the UK, is

by way of the Surinder Singh caselaw.

The UK interpretation appears to be inconsistent with the Metock ruling where the Court prescribed that Directive

2004/38 had to be interpreted with the aim of strengthening the right of free movement and residence of all Union

citizens , so that Union citizens cannot derive less rights from that directive than from the instruments of

secondary legislation which it amends or repeals (at paragraph 59).

Furthermore, Dicta from the Court of Justice suggest that the UK's take on McCarthy is likely to be incompatible

with EU law. This arises from the interpretation of the Ankara Agreement and Decision 1/80 (Case C 7/10 and

9/10), [ Article 7 of Decision No 1/80 of 19 September 1980 on the development of the Association adopted by

the Association Council set up by the Agreement establishing an Association between the European Economic

Community and Turkey, must be interpreted as meaning that the members of the family of a Turkish worker duly

registered as belonging to the labour force of a Member State can still invoke that provision once that worker has

acquired the nationality of the host Member State while retaining his Turkish nationality].

We must also note that the amended EEA Regulations contain transitional provisions.

Accordingly, where the family member can prove enjoying a right of residence under EU law on the 16th July

2012 and or held a residence card on the 16th October 2012, the fact that the EU citizen is also a UK citizen will

not defeat the family member's rights under the EEA 2006 Regulations.http://www.legislation.gov.uk/uksi/2012/

1547/made

Please find the link to the Law Society website, with a search engine to locate a lawyer .

http://www.lawsociety.org.uk/choosingandusing/findasolicitor.law

You can also consult an Immigration adviser.

http://www.oisc.gov.uk

You can get further advice concerning this topic through the Citizens Advice Bureau.

http://www.citizensadvice.org.uk/index/getadvice

Alternatively, you may seek the assistance of a law centre:

http://www.lawcentres.org.uk/directory/location/London/

The AIRE centre will provide direct legal advice and assistance on a case by case basis:

http://www.airecentre.org/law_index.html

I trust the above answers the questions you had and thank you again for getting in touch with Your Europe

Advice.

Kind regards.

Your Europe Advice.


2 of 3 22/04/2015 22:50

To submit another enquiry, please visit Your Europe Advice, but do not reply to this e-mail.

Your original enquiry was:

Hi

Could you please clarify the situation for a non-EEA family member of an EU citizen in the UK, holding an Article

10 Residence Card issued by the UK authorities, where the sponsor naturalises as a British citizen, whilst also

retaining his other, original, EU citizenship.

Does this family member now lose their UK RC status or is it retained and specifically, would they have to:

i) apply as the spouse of a British citizen under domestic immigraiton rules, or

ii) apply as the family member of a British citizen, but under the Surinder Singh route, based on earlier residence

in another member state (country of nationality)

Kind regards

Sonel

Yours sincerely,

Your Europe Advice


3 of 3 22/04/2015 22:50

EEA naturalises_impact on family member

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