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UKSolicitorJA
UKSolicitorJA, Solicitor
Category: Immigration Law
Satisfied Customers: 4312
Experience:  English solicitor with over 12 years experience
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Dear UK_Lawyer You have recently replied to a few questions

Customer Question

Dear UK_Lawyer
You have recently replied to a few questions regarding UK immigration.
My wife who has a Russian passport is currently living in Portugal since she has a Portuguese Resident Card. However, has I mentioned in my previous emails, she wants to join me in the UK. So, we are considering applying Spouse Visa.
I am a Portuguese and British Citizen and currently live in London. My first nationality is Portuguese.
Can my wife apply Family Permit instead?
Submitted: 1 year ago.
Category: Immigration Law
Expert:  UKSolicitorJA replied 1 year ago.
,

I am afraid you cannot use your Portuguese nationality in this case as you are a dual British/Portuguese national and your British nationality is what is taken into consideration.

Your wife will need to apply spouse visa under domestic UK immigration laws.

May I help further?
Customer: replied 1 year ago.

I understand that, but I know that there are exceptions.

, I grew up in Portugal and also studied and worked there for years. Also, in November 2012 I left the UK to go to Spain where I worked on a freelance contract short period of time. I returned to the UK in November 2013 which is more or less the time a meet my wife. What is more, I also have a UK Permanent Resident Card.

Please let me know your comments.

Thanks

Expert:  UKSolicitorJA replied 1 year ago.
You may qualify under the transitional arrangements as you hold a permanent residence card.
The guidance states as follows:
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
The above appears here
https://www.gov.uk/government/publications/eea-family-permits-eun02/eea-family-permit-eun02#eun215-can-family-members-of-dual-eea-nationals-qualify-for-an-eea-family-permit
I would suggest an application be made EEA Family Permit citing the above exception.
Hope this helps
Customer: replied 1 year ago.

So the application can be made EEA Family Permit citing exception:

"Has a right to permanent residence in the UK in reliance on the previous definition on the 16 July 2012" ?

Will this exception be enough to qualify EEA Family Permit? Or shall I also cite that I worked in Portugal in the past and more recently in Spain?

I have attached my UK Resident Card consideration. Basically, the card was issued pursuant to Directive 2004/38/EC and it was issued on 24 July 2007. Please review it and let me know if I still qualify EEA Family Permit with this card.

Thanks

Attachment: 2015-02-04_183253_uk_permanent_resident_card-outside.pdf

Attachment: 2015-02-04_183333_uk_permanent_resident_card-inside.pdf

Expert:  UKSolicitorJA replied 1 year ago.
Yes, you appear to qualify under the transitional arrangements. You should also state that you previously worked in other EEA countries.

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