Dual British and EU nationals - Transitional Provisions Resurrected
The new Immigration (EEA) Regulations 2016 (which have mostly yet to come into force) will be amended by the Immigration (European Economic Area) (Amendment) Regulations 2017 (No 1) laid before Parliament on 10 January 2017.
These will bring back the transitional provisions for the family members of dual EU-UK nationals, who would otherwise have been precluded from reliance on the Regulations.
“Preservation of transitional provisions in relation to family members of dual nationals
9.—(1) Where—
(a)the right of a family member (“F”) to be admitted to, or reside in, the United Kingdom pursuant to these Regulations depends on a person (“P”) being an EEA national;
(b)P would be an EEA national if P was not also a British citizen; and
(c)any of the criteria in sub-paragraphs (2), (3) and (4) is met;
P will, notwithstanding the effect of the definition of an EEA national in regulation 2, be regarded as an EEA national for the purpose of these Regulations.
(2) The criterion in this sub-paragraph is met where F was on 16th July 2012 a person with the right of permanent residence in the United Kingdom under the 2006 Regulations.
(3) Subject to sub-paragraph (5), the criterion in this sub-paragraph is met where F—
(a)was on 16th July 2012 a person with a right of residence in the United Kingdom under the 2006 Regulations; and
(b)on 16th October 2012—
(i)held a valid registration certificate or residence card issued under the 2006 Regulations;
(ii)had made an application under the 2006 Regulations for a registration certificate or residence card which had not been determined; or
(iii)had made an application under the 2006 Regulations for a registration certificate or residence card which had been refused and in respect of which an appeal under regulation 26 of the 2006 Regulations could be brought while the appellant was in the United Kingdom (excluding the possibility of an appeal out of time with permission) or was pending (within the meaning of section 104 of the Nationality, Immigration and Asylum Act 2002(5), as it applied on 16th July 2012).
(4) Subject to sub-paragraph (6), the criterion in this sub-paragraph is met where F—
(a)had, prior to 16th July 2012, applied for an EEA family permit pursuant to regulation 12 of the 2006 Regulations; or
(b)had applied for and been refused an EEA family permit and where, on 16th July 2012, an appeal under regulation 26 of the 2006 Regulations against that decision could be brought (excluding the possibility of an appeal out of time with permission) or was pending (within the meaning of section 104 of the Nationality, Immigration and Asylum Act 2002 Act, as it applied on 16th July 2012).
(5) The criterion in sub-paragraph (3) is not met in a case to which sub-paragraph (3)(b)(ii) or (iii) applies where no registration certificate or residence card was, in fact, issued pursuant to that application.
(6) The criterion in sub-paragraph (4) is not met where—
(a)F was issued with an EEA family permit pursuant to an application made prior to 16th July 2012 but F had not been admitted to the United Kingdom within six months of the date on which it was issued; or
(b)no EEA family permit was, in fact, issued pursuant to that application.
(7) Where met, the criteria in sub-paragraphs (2), (3) and (4) remain satisfied until the occurrence of the earliest of the following events—
(a)the date on which F ceases to be the family member of P; or
(b)the date on which F’s right of permanent residence is lost.
(8) P will only continue to be regarded as an EEA national for the purpose of considering the position of F under these Regulations.”
This is an important and positive amendment, and gives more clarity to the rights of family members of dual nationals.
Contact our EEA Immigration Barristers
For expert advice in relation to an EEA application or appeal, contact our specialist EEA immigration barristers on 0203 617 9173 or via our online enquiry form.
