# EEA Family Permit



## Laurie78 (Aug 21, 2012)

Hi all,

I am from Northern Ireland and am getting married to an American girl. I hold both a UK and Irish passport, I understand that I can use my Irish passport to bring my wife to the UK to live and work. We are planning on getting hitched in USA then coming back to UK, I will be coming back before her. Is it really as simple as her applying for a family permit in America by filling out a V5 (or something), then I exercise my treaty rights and bring her back here? Then once she is here she can apply for a Residence Card? Is there any need to hire someone to do this for me. If so, can anyone help me by laying out the exact steps I need to take?

I really appreciate any help on this matter


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## Joppa (Sep 7, 2009)

Laurie78 said:


> Hi all,
> 
> I am from Northern Ireland and am getting married to an American girl. I hold both a UK and Irish passport, I understand that I can use my Irish passport to bring my wife to the UK to live and work. We are planning on getting hitched in USA then coming back to UK, I will be coming back before her. Is it really as simple as her applying for a family permit in America by filling out a V5 (or something), then I exercise my treaty rights and bring her back here? Then once she is here she can apply for a Residence Card? Is there any need to hire someone to do this for me. If so, can anyone help me by laying out the exact steps I need to take?


You used to be able to that, but sadly the rules have changed quite recently (16th July this year) after the McCarthy judgement in the European Court, and anyone who holds both UK and another EEA citizenship (such as Irish) is no longer seen as exercising treaty rights in UK so cannot bring a non-EEA family member.
See The Immigration (European Economic Area) (Amendment) Regulations 2012 (final part).

As I write, UKBA hasn't yet implemented the change, so if you hurry you may be able to get an EEA family permit, but this 'loophole' is said to close as soon as a new application form (VAF5) becomes available online.


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## Laurie78 (Aug 21, 2012)

I did see that at the end of the amendments  And I also found this quote on the UKborderagency:
The intention is to amend the Regulations to reflect the terms of the McCarthy judgment, however until such time as Regulation 2 is amended, entry clearance officers/caseworkers will need to continue to treat dual British/EEA nationals as though they are EEA nationals when considering an application for documentation under the Regulations. Evidence of the EEA nationality must be provided.

Does anybody have any idea how long it is likely to take for the amendment to happen? The VAF5 form online is currently the 2008 version.


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## punktlich02 (Aug 21, 2012)

Laurie78 said:


> I did see that at the end of the amendments  And I also found this quote on the UKborderagency:
> The intention is to amend the Regulations to reflect the terms of the McCarthy judgment, however until such time as Regulation 2 is amended, entry clearance officers/caseworkers will need to continue to treat dual British/EEA nationals as though they are EEA nationals when considering an application for documentation under the Regulations. Evidence of the EEA nationality must be provided.
> 
> Does anybody have any idea how long it is likely to take for the amendment to happen? The VAF5 form online is currently the 2008 version.


There is another point which remains unclear: it seems that Shirley McCarthy "has only ever lived in England" (see Advocate General's opinion).

Whatever its sovereign rights under EU law, I suspect that if she had lived in Northern Ireland, especially if (like nearly all Catholics there) she always considered herself "Irish" and not "British" (as most Protestants do) then the answer could be different. 

In many ways, concessions are made to avoid forcing dual nationals in Northern Ireland from having to present themselves as British. Indeed, the Good Friday Agreement protects that right. I recall that postal and telephone service allows domestic rates for communications with the South as well. These are, of course, political concessions: as the ECJ and the ECHR have said, it is for every sovereign state to define its own nationality (although I would argue that situations like Ramadanoglou (Greek citizenship revoked under the now-abrogated Art. 19 while he was exercising EU right of employment in Germany) are violations of EU law. (The Greek government relented, perhaps aware of this; arrogantly pursuing bad law as the French Government did in Rush Portuguesa is never a good idea.) Just my 2 (euro) cents.

But we'll have to wait for another case to demonstrate this. And also provide further clarification on Zambrano and Chen/Zhu and other situations where a child born in (say) the UK has a EU/EEA/Swiss citizenship but not British nationality.

It's rather obvious that cases like this reflect poverty (McCarthy is on benefits) since someone not on benefits and able to work (say) as an office temp in Ireland could easily pass the test of Levin v Staatssecretaris van Justitie (EU spouse earning trivial income; third-country spouse with higher earnings).

(On a personal note my N.I.-born Swiss daughter took British nationality at age 14; I had always supposed that would be an advantage. This just proves you can never know. In the end it was irrelevant: she married a British-Australian.)


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## punktlich02 (Aug 21, 2012)

Joppa said:


> You used to be able to that, but sadly the rules have changed quite recently (16th July this year) after the McCarthy judgement in the European Court, and anyone who holds both UK and another EEA citizenship (such as Irish) is no longer seen as exercising treaty rights in UK so cannot bring a non-EEA family member...


The OP here is in fact from Northern Ireland. As i said elsewhere I think s/he has a chance (assuming the McCarthy judgment otherwise applicable) to say that the Good Friday Agreement pre-empts the McCarthy rule:

"(vi) recognise the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland."

The "people of Northern Ireland" is elsewhere defined and it includes most persons born there, the vast majority of whom will be dual nationals even under the 1983 BNA. 

(I once asked at the County Antrim Register Office how many women from mainland Britain or abroad gave birth in N.I. and was told the number was insignificant. (N.I. birth certificates do not, however, show nationality of parents as that might give away religion of the child, something that school attended does anyway.) That didn't stop certain politicians from arguing for (and getting) changes in both British and Irish constitutional and nationality law to deprive the offspring of third-country nationals from the right of jus soli.)

Whether moving from N.I. to mainland Britain is or is not assertion of a Community right is such a sensitive issue (given the Troubles and the Irish constitutional claim of sovereignty over the 6 counties) that my guess is the Home Office will avoid the confrontation. On the other hand others with perhaps better credentials than I may think differently.


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## Jess22 (Dec 29, 2012)

Hello all!
I've a wee question please?
I applied with my partner for the eea family permit in April of this year and were refused as the ukba believed me to be British and not irish. I didn't realise I could fight it and I wasn't really up to date with visa regulations anyway so I ended up moving to turkey again. I hold both irish and British passports and I have just returned home. I want to apply but was wondering have the rules came into to place? I've spoke with numerous immigration lawyers who say they will argue it as I am both irish and British so I should have the same right as irish citizens? I'm working and we won't be on benefits. Do you think it's worth the chance? Also people talk about revoking British citizenship so I only have the irish? Any help would be appreciated xxx


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## punktlich02 (Aug 21, 2012)

Jess22 said:


> Hello all!
> I've a wee question please?
> I applied with my partner for the eea family permit in April of this year and were refused as the ukba believed me to be British and not irish. I didn't realise I could fight it and I wasn't really up to date with visa regulations anyway so I ended up moving to turkey again. I hold both irish and British passports and I have just returned home. I want to apply but was wondering have the rules came into to place? I've spoke with numerous immigration lawyers who say they will argue it as I am both irish and British so I should have the same right as irish citizens? I'm working and we won't be on benefits. Do you think it's worth the chance? Also people talk about revoking British citizenship so I only have the irish? Any help would be appreciated xxx


Are you in fact connected with Northern Ireland? Not everybody, including those with better credentials than mine, accept that the Belfast Agreement takes precedence, but at least some applicants who live, or lived, in N.I. and claim that their British nationality is incidental and (implicitly) unwanted are treated as Irish. 

It was thought for some time that the old concept of "effective nationality" was obsolete. The British seem to be reviving it to improve performance on their bold project of reducing immigration from hundreds of thousands to tens of thousands. Whatever the hardship to all concerned.

The interesting thing about renouncing British nationality is that you can get it back later. That has to do with ex-colony rules on dual nationality but it could perhaps be helpful to you.


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## Jess22 (Dec 29, 2012)

Hello there
Yes I live in Northern Ireland and hold dual of irish and British. When I loved in turkey I held my turkish residency in my irish passport? I am both so I find it unfair I can't use irish? Then this law passed saying if you are dual you cannot rely on irish citizenship instead of British?
How do I show my British nationality is unwanted without paying 229 to revoke nationality? It is a pity I just can't get my passport made exempt.
Are you sure I can reclaim my nationality? I was reading on ukba that if you give it up you may not be able to claim it back! That's what I'm worried about?
Also what about my national insurance number and all those other things are they effected by revoking British nationality?xx


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## punktlich02 (Aug 21, 2012)

Jess22 said:


> Hello there
> Yes I live in Northern Ireland and hold dual of irish and British. When I loved in turkey I held my turkish residency in my irish passport? I am both so I find it unfair I can't use irish? Then this law passed saying if you are dual you cannot rely on irish citizenship instead of British?
> How do I show my British nationality is unwanted without paying 229 to revoke nationality? It is a pity I just can't get my passport made exempt.
> Are you sure I can reclaim my nationality? I was reading on ukba that if you give it up you may not be able to claim it back! That's what I'm worried about?
> Also what about my national insurance number and all those other things are they effected by revoking British nationality?xx


While I have to defer to practitioners with long experience in the subject of immigration, I have some knowledge of the Belfast Agreement, and its background and significance. There has anyway been a good deal of criticism of the McCarthy judgment, and if read without an understanding of the Northern Ireland situation and the Good Friday (Belfast) Agreement, it would be inconsistent with other judgments: Chu/Zhen (child born in Northern Ireland has EU rights in mainland Britain), Zambrano (Colombians with Belgian-national children).

Please see the Belfast Agreement, Annex, Constitutional Issues, Art. IV:
_"(vi) recognise the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland."_

In general, persons born in N.I., at least those born before 1983 when virtually all born there were dual nationals, are included among "people of Northern Ireland", as are the offspring of most British and Irish-citizen parents born there. But that is not an exclusive definition.

The issue is so politically-sensitive that you should enlist the aid of your MP and MEP and the Irish Government and refer to the clause I cited.

Don't forget that it is easy, so long as one has the funds, to contrive the status of having exercised EU rights. The traps for the unwary tend to be harshest upon the poor. The Chu/Zhen family were wealthy Chinese businesspeople who took legal advice before sending Mrs Zhen to Belfast to give birth. When one of my daughters was at Uni in Belfast we sent our Filipina nanny there for her confinement and her son is Irish (she is now British, but that's another story.) Others have gone to an EU/EEA/Swiss country to do "research" for their memoirs or to take up charitable or low-paid work. 

The above represents my best appraisal, always assuming that nobody else with better credentials than mine comes up with a more authoritative, and different, answer.

FWIW, the issue of "nationality" of N.I. people is terribly sensitive. By and large Catholics present Irish passports, Protestants British ones. Being Jewish creates a funny conundrum: they are asked in all seriousness by some, "But are you a Catholic Jew or a Protestant one?" meaning that religious affiliation is more than faith but also politics. Unlike mainland birth certificates (as I have said elsewhere) N.I. ones don't state nationality of parents, although religion is anyway revealed by school attendance.

Use these facts to your advantage.

Sorry for the delay in posting but I am not often on the forum.


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## punktlich02 (Aug 21, 2012)

Jess22 said:


> Hello!
> Would u be able to email me or give me ur mail addy so we could discuss this a wee bit?
> I am going to a solicitor tomorrow which I am hoping will give me some light on this. Apparently on 16 July 2012 a law was passed that those living In Northern Ireland with dual citizenship of British and irish cannot rely on their irish citizenship to do an eea application. Therefore I will have to give up my nationality but I am so scared in case this will directly effect me? Does giving up British citizenship in anyway hinder me? Will my national insurance be effected? Xx


These seem to be the same facts and the previous inquiry. The Good Friday Agreement, from which I quoted, gives you the right to declare yourself (and more especially and significantly, "accepted" by Irish and British government agencies) as [solely] Irish. That's because declared nationality is a matter of religion and politics in N.I. (Recall the numerous cases where Jews have been asked in all seriousness, "But are you a Catholic Jew or a Protestant Jew?")

I argue that the McCarthy case is irrelevant for "Northern Ireland people" (to quote the Agreement).

Apply for an EEA permit and PLEASE get back to us with the results. Only then can we confidently advise others. And by "we" I mean me: an academic who doesn't do this for a living but encounters students and others with cross-border nationality issues.

Or, since you've seen a solicitor by now, tell us, what did he say?


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## Jess22 (Dec 29, 2012)

It does affect northern irish citizens and there has been a law passed that northern irish citizens have to give up their British citizenship to apply for the eea family permit. And this has all came from the McCarthy case.
Apparently it's 50/50 whether the eea family permit will be accepted this way as the more people do it the more they will have to change the rules.
They are also more strict on all other areas of the application if they feel they are got on the citizen side of things.
I am v nervous about giving up citizenship - just healthcare or if I ever need to claim benefits will I still be able too ( not that I do just for future) also, I cannot get the citizenship back.
I'm just unsure of next step.


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## Jess22 (Dec 29, 2012)

And yes it a matter of religion and politics in Northern Ireland what nationality u declare yourself but everyone is British and irish whether they have th passport or not. I will be effectively giving away my British nationality which other irish nationals don't do.


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## punktlich02 (Aug 21, 2012)

Jess22 said:


> Hello!
> Would u be able to email me or give me ur mail addy so we could discuss this a wee bit?
> I am going to a solicitor tomorrow which I am hoping will give me some light on this. Apparently on 16 July 2012 a law was passed that those living In Northern Ireland with dual citizenship of British and irish cannot rely on their irish citizenship to do an eea application. Therefore I will have to give up my nationality but I am so scared in case this will directly effect me? Does giving up British citizenship in anyway hinder me? Will my national insurance be effected? Xx


I'm sorry that I didn't see this in time, but as I said I only check into the forum every few weeks. Joppa and others are so much better informed in immigration practice that the only useful advice I can offer is on nationality, bankruptcy and taxes - the areas I practiced in before I retired.

As I understand it, there is no new "law"; rather the McCarthy decision of the ECJ - inconsistent with the prior decisions I and others have cited (but unlike the the domestic UK courts the ECJ is not necessarily bound by precedent) allowed the UK to apply what amounts to an "effective nationality" rule - exactly what was (in another context) rejected in the MIcheletti case (Italy/Argentina citizen born and brought up in Argentina).

I think that for political and religious reasons the Home Office will not ignore the Good Friday Agreement commitment that I quoted. And that if they do, it could lead to unrest in Northern Ireland if certain people there felt cheated.

What did your solicitor say? (I don't think renunciation of British nationality is necessary or relevant.)

I can be reached at punktlich (at) mailcity.com but even there I only check in every couple of days.


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## Jess22 (Dec 29, 2012)

Solicitor said that the new law passed for Northern Ireland citizens says that they cannot apply while having dual nationality. This law was passed in summer 2012. So basically I have to give up British and only be irish or stay both and apply the british visa. I have been to 2 immigration solicitor and a solicitor and all 3 quoted that, spoke to the law centre and the ukba, this is factual. I know 2 people who have given theirs up to get the permit and ill have to do the same this week.
It won't effect my life in Northern Ireland and that's what I wanted to find out you know with regards to NHL and so forth so it's ok.


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## punktlich02 (Aug 21, 2012)

Jess22 said:


> Solicitor said that the new law passed for Northern Ireland citizens says that they cannot apply while having dual nationality. This law was passed in summer 2012. So basically I have to give up British and only be irish or stay both and apply the british visa. I have been to 2 immigration solicitor and a solicitor and all 3 quoted that, spoke to the law centre and the ukba, this is factual. I know 2 people who have given theirs up to get the permit and ill have to do the same this week.
> It won't effect my life in Northern Ireland and that's what I wanted to find out you know with regards to NHL and so forth so it's ok.


Thank you for returning with what your solicitors said, which I have to take as authoritative, but nonetheless shocking given what I know of N.I. since the Troubles. It isn't actually "law" but secondary legislation -- statutory instrument, discussed (negatively) here: Amendment to EEA regulations | Free Movement

Remembering the Depression-era stage play of which the operative words were "Pay the ma the $2" I can't ask anyone to go through the hassle and expense of challenging a S.I. so clearly violating a treaty obligation and a right given to all the people of N.I. But the irish polity and their government ought to do so and if you have the time and inclination you could ask them. 

This is not the only area in which rules aimed at avoiding intra-Irish conflict have been eroded by reason of purely English (sic) financial interest and/or political convenience. CORGI (now Gas Safety) rules formerly excepted Irish plumbers and gas workers. Communications were (perhaps still are) taxed as "domestic" within the Island. I could list others.

Settling in an Irish border village and commuting to N.I. creates rights that most Republicans would fiercely argue should not depend on what they deem to be an artificial border. But how can I ask someone to take up an academic argument like that?

This forum is littered with frustration expressed by returning residents from, say, Monaco, Andorra, San Marino -- places that give them no rights. As a Swiss I suddenly received rights under the EU treaties in 2002 and no longer had to depend on my UKC wife, or pay anything for visas. How easy it would have been for me to get Liechtenstein working documents. Or for someone in Turkey, perhaps, Bulgarian ones. Cynical politicians satisfying the public that "something is being done to limit immigration" simply adds to the volume of connivance, loophole-searching, and fraud. More's the pity.

The Good Friday Agreement would seem no longer to mean what it says. Unless some Republican politician cares to take up the issue.

(Unfortunately I don't work in this area now. The area I do work in, cross-border taxation, has some of the same problems: State greed undermining treaty rights once taken for granted.) I wish you well and regret the useless costs thrust on you. Renouncing citizenship to gain rights? Well, we see that among US-UK dual nationals trying to get free of FATCA and other exorbitant US tax laws, but ...


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## Brighty (Jan 2, 2013)

Any ideas on how long the process takes to give up brition nationality?


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## Jess22 (Dec 29, 2012)

6-12 weeks


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## Brighty (Jan 2, 2013)

Have you sent yours off yet? mine will be 2 weeks tomorrow seems very long process just to give it up!


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## Jess22 (Dec 29, 2012)

I sent mine today! When u sent yours did u send ur british passport? And did u just send copy of irish passport?? I sent a photocopy of irish and now I'm worried! I paid by maestro too and hopin that'll be ok lol I'm a wreck!


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## Brighty (Jan 2, 2013)

I sent both passports now i'm wishing i didnt cause i cant travel it will be 2 weeks tomorrow since i sent it and i recieved a letter from ukba on friday to confirm they recieved it and to confirm they recieved payment i just send my visa debit details and its all went through ok its just such a long wait for a stamped piece of paper


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## Brighty (Jan 2, 2013)

Sent!


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## Laurie78 (Aug 21, 2012)

I am currently trying to go through the process for a family permit using my Irish Citizenship. I first obtained a residence card which shows that I am 'exercising my treaty rights'. I will let you know how I get on.


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## Jess22 (Dec 29, 2012)

Hey Laurier how do u get a residence card hun and do u live in north x

Also did u give up british citizenship


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## Johnk85 (Feb 16, 2013)

*Are existing residence card holders affected by the Mc Carthy Judgement?*

I am 45 and was born in London and moved to Northern Ireland when i was 6 yrs old.Moved back to London 16 yrs ago.I have both Irish and British passport and i am working in full time employment.My wife is from Morocco and we applied for both Residence certificate for myself and EEA Family (non EEA) Residence cards which we both received in july 2012.

My wife now has a new passport and according to UKBA we have to send in a new application form to get her residence card transferred from her old to new passport.

My question is would we now be refused because of the changes made as a result of the Mc Carthy case or would we be exempt as we already have been granted residence cert & card previously.?

Do the transitional arrangements listed in the Regulations below enable my wife to retain her residence card in the new passport?
The Immigration (European Economic Area) (Amendment) Regulations 2012 (final part).


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