Can Family Members of Dual EEA Qualify for an EEA Family Permit?
Family Members of British, Irish Nationals, Regulation 2 and 9
Guidance on EEA Family Permit: EUN02 | Published on 13 November 2013 by Home Office UK Government | Details of Sections 15-16, EUN2.15-16 (of 24 Sections EUN2.1-2.24)
15. EUN2.15 Can family members of dual EEA nationals qualify for an EEA family permit?
Yes. A dual German / USA national can rely on their German nationality in order to exercise treaty rights and therefore their family members may apply for an EEA family permit. The applicant will need to show that:
- they are an EEA national through the issue of a passport/ID card and that
- they meet the requirements of the EEA regs (that is, are exercising Treaty rights, and so on.)
16. 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:
“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 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.
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