If you are also British, then you are only British!

UKBA’s new EEA regulations (The Immigration (European Economic Area) (Amendment) Regulations 2012) state that when an EEA national is also British, then the EEA free movement regulations do not apply to them:

“EEA national” means a national of an EEA State who is not also a United Kingdom national. (regulation 2, as amended)

This amendment of the definition of an EEA national reflects the ECJ’s judgment in the case of C-434/09 Shirley McCarthy v Secretary of State for the Home Department. (from the Explanatory Note at the bottom)

Ms. McCarthy, in case C-434/09, was (1) not working or otherwise exercising any treaty rights and (2) had not previously asserted her Irish citizenship in a practical way, e.g. by holding an Irish passport.  The court held that EU free movement law did not apply to her or her family.  In their conclusion, the court limits the judgement to somebody:

who has never exercised his right of free movement who has always resided in a Member State of which he is a national and who is also a national of another Member State

These three careful qualifications of the ECJ judgement are entirely missing from these new UK regulations.   UKBA has taken an extremely broad interpretation of the judgement!

Does it matter?

Dutch passportI know a lovely Dutch family who lives in the UK. They do all the curious things you might expect of Dutch people, such as skating on frozen canals, taking camper vans to far corners of the world, and eating Hagelslag on toast.  They have two children who were born in the UK.  Each child has a Dutch passport and clearly thinks of himself as “European”.

We can assume they are also very likely British, because they were born in the UK to working European parents.

Under UKBA’s new interpretation of McCarthy, UKBA simply ignores the Dutch citizenship of each child for the purposes of free movement.   According to UKBA, the entirety of the European free movement regulations simply no longer apply.

Should the children someday marry a person who is not from the EU, UKBA claims their spouse would not have a European right of free movement to enter the UK.   Their only remaining free movement option would be if the Dutch child had worked in a different EU member state and was now “returning” to the UK on the basis of EU law (ECJ 1992 Surinder Singh case).

On what basis could these Dutch children themselves enter the UK?  Remember that UKBA claims the European free movement regulations no longer apply to them, including Regulation 11 (on Europeans entering the UK).   Good news is that if UKBA claims they are British, then they can always enter the UK even without a passport.

This rule also has significant implications for any EU citizen who decides to naturalize as a British citizen.  Once naturalized, EU free movement law will no longer apply to their family members.  Any family member will be required to enter the UK on the basis of traditional British law.

A Polish worker in the UK who naturalizes to be British after working and living in the UK for 6 years may be surprised to find that because of naturalizing, UKBA has disqualified them from using the free movement options they should have to bring their elderly parent(s) to the UK.

On a lighter note, a fun thought-experiment suggests this could solve other problems for UKBA.  It gives UKBA the ability to eliminate all family member free movement to the UK and easily meet their “public commitments” to reduce immigration, all with only one act of parliament. Remember that citizenship policy is solely determined by each member state. Parliament could legislate that all citizens of other EU member states are now also British citizens. Instantly none of their family members would be able to enter the UK on the basis of EU free movement law (since each EU citizen is now also British!).  And if any of those dual citizens does still come, they would do so as a returning British citizen, making the net immigration statistics even better.

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  • EU free movement  On July 24, 2012 at 11:52

    I should note that there are some transitional arrangements that UKBA have made. But they are limited.

  • Doug Shaw  On September 12, 2012 at 17:15

    The UK isn’t alone with this approach. Germany also reckons that if you are also German, then you are only German! Anyone that applies for and gets German citizenship (for whatever reason) will result in all of their children being fined heavily if they are caught in Germany without a German passport. Reason being that German citizenship is now passed on by either parent and is compulsory. Germans have by law to possess a German passport (once they reach the age of 16) irrespective of travel intentions and they have compulsory resident registration. Having any number of other valid EU passports in Germany simply doesn’t count (I know from personal experience)!

  • Roxxroxx  On September 23, 2012 at 08:05

    i’m British. Before this July, my thai partner and i could have moved to Spain, worked there and then applied (for free) for an EEA family permit on my/our return to the UK. Is this now impossible as I have been redfined as a non-EEA citizen by this crazy government? Or if I am returning to the UK (as per Surinda Singh) it may still work, at least for ‘derivative rights’?
    Assuming this would be possible, from this postition – my partner living in the UK with ‘derivative rights’, with both of us in work, could we then apply for the Spouse Visa from within the UK or would she then need to leave the country and apply for the spouse visa from abroad?

    • EU free movement  On September 24, 2012 at 04:41

      You can in fact move to any other eu member state. But it is important that you work, so Spain may or may not be the best choice.

      After working in the host member state, you return to the Uk is assured by Mr Singh.

      The change in law does not impact Singh cases.

  • Roxxroxx  On September 26, 2012 at 13:50

    Thank you very much. 🙂 I agree about Spain. I will be applying for teaching positions all over Europe, so let’s hope I get something!

  • Jean Psy  On October 26, 2012 at 13:58

    Do you know what the position of Ireland is regarding this? I am wondering whether the partner of a dual citizen for both Germany and Ireland can optain residancy right in Ireland based on the German citizenship of their partner? Or will Ireland also consideer theIrish citizenship first?

  • Anonymous  On July 29, 2013 at 22:55

    http://www.legalaidboard.ie/lab/publishing.nsf/content/The_Researcher_July_2011_Article_1 is a very interesting review of case law in this area

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