Dear Mr Aleck,

REQUEST FOR INFORMATION UNDER THE FREEDOM OF INFORMATION ACT 2000.

Thank you for your e-mail 4 August where you requested information on Dual Nationals and EEA Family Permits. This falls to be dealt with under the Freedom of Information Act 2000. Please accept my apologies for the delay in providing you with a reply.

I can confirm that the International Group of the UK Border Agency holds some information in relation to your request. Please see below.

Can family members of dual nationals/ Irish Nationals and EEA nationals with settled status qualify for an EEA Family permit?” is answered with only the statement “This guidance is currently under review”. 

a) Provide to me the most recent guidance that was available before it was placed under review.

The following guidance was archived in December 2008:

Entry clearance guidance chapter 21.4.7 - Dual nationals / Irish / EEA nationals holding settled status
Dual nationals, Irish nationals or EEA nationals holding settled status may choose to bring their family members to the UK either on an EEA family permit or via the Immigration Rules.

If the applicants choose to be treated under EC law they should be issued with an EEA family permit free of charge. If they choose to come under the Immigration Rules, they must pay the appropriate entry clearance application fee.

In addition, if the dual national / Irish or EEA national holding settled status chooses to bring his/her family members under EC law, the family members would not be entitled to apply for settled status until they had resided with the Irish / Dual or EEA national in the UK for five years. However, if they choose to come under the Immigration Rules they would be entitled to apply for settled status after two years.

You are not under any duty to ask sponsors who say that they are British whether they hold, or could hold dual nationality. The onus is upon the applicant to provide this information if he/she thinks it is relevant to the application. If dual nationality is mentioned by the applicant, you should explain the choice of whether to come under the Immigration Rules or EC law but should make clear that evidence of EEA nationality (for example EEA passport) will be required. A possible entitlement to dual citizenship (for example birth in Ireland) is not sufficient

b) Explain why this guidance needs to be reviewed.

The issue of dual-nationality and its meaning under EU law is not clear, as demonstrated in the case of McCarthy (Eire) v Home Secretary, which has now been referred to the European Courts of Justice for clarification.

c) Explain the possible outcomes of this review.

Review of this guidance is pending until the outcome of the case of McCarthy (Eire) v Home Secretary, which has been referred to the European Courts of Justice for clarification.

d) Indicate the likely outcome of the review.

 Please see C.

e) Provide details of the timelines for this review, including initiation, removal of current guidance, execution of the review, reporting the review's conclusions, making a decision on the outcomes and implementation of the outcomes.

 Please see C

f) Provide the current guidance provided by UKBA to ECOs for considerations of applications made under this position pending the outcome of the review (i.e. the guidance they should use at this time pending completion of the review).

In the interim ECOs are advised that persons who have EEA nationality whether or not they are dual nationals may choose whether they wish to exercise any rights they may have under their EEA nationality.

If you are dissatisfied with this response you may request an independent review of our handling of your request. Internal review requests should be submitted within two months of the Border and Immigration Agency sending a substantive reply to your original request and should be addressed to:

Information Access Policy Team

Freedom of Information Team

11th Floor - Short Corridor
Lunar House,

40 Wellesley Road
Croydon
CR9 2BY

During the independent review, the department's handling of your information request will be reassessed by a member of staff who was not involved in providing you with the response.

Yours sincerely

Lisa Walker

Visa Services