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Lounes and dual nationality

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ClairemHodgson
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Elliot Kent - 06 September 2018 06:09 PM

This must be Zekri surely - see para 2 and the subject matter:

http://www.bailii.org/uk/cases/UKUT/IAC/2018/273.html

It’s not awaiting hearing - it was decided 2 months ago.

i didn’t think to run a search on bailii…...doh!  it probably is, Elliot…..

     
Paul_Treloar_AgeUK
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Our case is with HMCTS now.

DWP in further submission to tribunal have (1) one conceded that Lounes can apply in this case and parents can potentially derive r2r from working daughter but (2) questioned her legal right to be in UK prior to Bulgaria joining EU and whether she was WRA-registered for work.

Thankfully, it looks like she obtained ILR visa in December 2006 which means she was exempt from WRA requirements and thus was legally working and as more than 5 years have passed, she has permanent r2r and therefore parent’s PC claim should be allowed.

We’ll see as I’ve yet to 100% confirm above with adviser and obviously we’ve not been to tribunal yet but I can’t see a problem hopefully.

     
Elliot Kent
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Paul_Treloar_AgeUK - 06 November 2018 03:22 PM

Our case is with HMCTS now.

DWP in further submission to tribunal have (1) one conceded that Lounes can apply in this case and parents can potentially derive r2r from working daughter but (2) questioned her legal right to be in UK prior to Bulgaria joining EU and whether she was WRA-registered for work.

Thankfully, it looks like she obtained ILR visa in December 2006 which means she was exempt from WRA requirements and thus was legally working and as more than 5 years have passed, she has permanent r2r and therefore parent’s PC claim should be allowed.

We’ll see as I’ve yet to 100% confirm above with adviser and obviously we’ve not been to tribunal yet but I can’t see a problem hopefully.

If the DWP wants to argue that your client’s daughter was erroneously granted citizenship, I am assuming that they have brought some exceptionally persuasive evidence to that effect. Sagan’s razor much.

     
Elliot Kent
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Elliot Kent - 06 November 2018 04:15 PM
Paul_Treloar_AgeUK - 06 November 2018 03:22 PM

Our case is with HMCTS now.

DWP in further submission to tribunal have (1) one conceded that Lounes can apply in this case and parents can potentially derive r2r from working daughter but (2) questioned her legal right to be in UK prior to Bulgaria joining EU and whether she was WRA-registered for work.

Thankfully, it looks like she obtained ILR visa in December 2006 which means she was exempt from WRA requirements and thus was legally working and as more than 5 years have passed, she has permanent r2r and therefore parent’s PC claim should be allowed.

We’ll see as I’ve yet to 100% confirm above with adviser and obviously we’ve not been to tribunal yet but I can’t see a problem hopefully.

If the DWP wants to argue that your client’s daughter was erroneously granted citizenship, I am assuming that they have brought some exceptionally persuasive evidence to that effect. Sagan’s razor much.

Oh hang about… Are you saying that your client’s daughter was granted indefinite leave to remain before Bulgaria joined the EU? Are they arguing that as she had an unlimited permission to be here in domestic law pre-Accession, she was never exercising her rights under the Directive and so Lounes doesn’t apply? It’s a “purely internal situation” so to speak.

That would explain the relevance of Zekri...

     
Paul_Treloar_AgeUK
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Elliot Kent - 06 November 2018 04:35 PM

Oh hang about… Are you saying that your client’s daughter was granted indefinite leave to remain before Bulgaria joined the EU? Are they arguing that as she had an unlimited permission to be here in domestic law pre-Accession, she was never exercising her rights under the Directive and so Lounes doesn’t apply? It’s a “purely internal situation” so to speak.

That would explain the relevance of Zekri...

They’re not arguing this, thank goodness, it’s just they’ve been so resistant to the fact that Lounes applied here, they haven’t made any further enquiries about the daughter and have just realised she was in the UK pre-2007. It’s appalling administration and sympomatic in my experience of how they often proceed in r2r cases, which is as soon as one suitable ground is established, DWP seek to throw up other issues to try and make their case stick.

Hopefully as I say, they’re barking up the wrong tree here.

     
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When did she actually naturalise Paul? And, crucially, did she exercise Treaty rights before doing so?

     
Paul_Treloar_AgeUK
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past caring - 06 November 2018 05:06 PM

When did she actually naturalise Paul? And, crucially, did she exercise Treaty rights before doing so?

As far as I can see, she was an exempt person insofar as registering employment was concerned from Jan 2007, and as she had ILR (there’s personal details it’s best not post how/why this came about), she had right to work, which she has done through almost whole period since (and which DWP confirm). So she was a worker exercising her freedom of movement, and she has worked for a period of nearly 12 years. She obtained British citizenship in 2012 but Lounes confirms she doesn’t lose right to reside as EEA national exercising her right of freedom to move to work, so as far as I can see, she has PRR now.

     
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Yes that’s right. The effect of the ILR with a right to work meant she wasn’t required to register her employment. It doesn’t mean that she wasn’t exercising Treaty rights when she worked post Bulgaria’s accession. The crucial thing is that the person has to have exercised Treaty rights at some point prior to naturalising. If she had acquired a permanent RtR prior to naturalising, all well and good. Even if she didn’t, Lounes says she has rights under Art. 21 TFEU and these cannot be any less than if they were rights under Dir. 2004/38/EC.

     
Paul_Treloar_AgeUK
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Thanks PC, that confirms what I was thinking. Fingers crossed the tribunal agree now. This has been dragging on for two years now.

     
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I am expecting my UT decision on this any day now. It is almost certainly going to be a published decision when it does arrive.