In case C-165/16 Lounes, the Court of Justice of the European Union found that EU citizens who moved to the UK to exercise free movement rights and later naturalised as British (while also keeping their EU nationality) retain their free movement rights, even after naturalisation. This is particularly helpful for sponsoring non-EU family members.
Lounes applicants (family members of dual British / EU nationals who fall within the ruling) are covered by the EU Settlement Scheme — but it can be difficult to work out the mechanics of actually making an application. This article provides a guide to Lounes applications, drawing on recent experience making one.
The rules for Lounes applicants
Working out the Lounes provisions involves wading through multiple confusing definitions. (You can skip this section if you don’t want the detail, and go straight to what the rules actually mean in practice.)
The starting point, assuming the applicant requires entry clearance to travel to the UK, is paragraph FP6.(1) of Appendix EU (Family Permit) to the Immigration Rules. FP6.(1)(b) allows entry clearance to be given to “a family member of a relevant EEA citizen”.
“Relevant EEA citizen” is defined in Annex 1 to that appendix. There are two definitions depending on when the application is made. We’ll focus on the rules for applications made before 1 July 2021, and touch on the differences after that date later on.
If the application is submitted before 1 July 2021, a relevant EEA citizen includes someone “who is a relevant naturalised British citizen (disregarding sub-paragraph (c)(ii) of that entry in this table)”.
So we now have to look at the definition of “relevant naturalised British citizen” further on in Annex 1. A relevant naturalised British citizen is a national of an EU or EEA country or Switzerland, who also:
- comes within paragraph (b) of the definition of “EEA national” in regulation 2(1) of the EEA Regulations
- is a “dual national” as defined in regulation 9A(2)(a) of the EEA Regulations, and
- would get pre-settled or settled status under the EU Settlement Scheme if not for the fact that they are now a British citizen
The EEA Regulations are the Immigration (European Economic Area) Regulations 2016. Regulation 2(1)(b) says that an “EEA national” includes:
…a national of an EEA State who is also a British citizen and who, prior to acquiring British citizenship exercised a right to reside as such a national… save that a person does not fall within paragraph (b) if the EEA State of which they are a national became a member State after that person acquired British citizenship.
Regulation 9A(2) defines a “dual national” as someone who:
(a) came within the definition of “qualified person” (Reg 6 (1)) at the time of acquisition of British citizenship…
(b) has not at any time subsequent to the acquisition of British citizen lost the status of qualified person.
We only need to worry about (a); the definition of “relevant naturalised British citizen” explicitly says that (b) is not relevant for Appendix EU purposes.
Finally, regulation 6 tells us who counts as a “qualified person”: someone who is a worker, self-employed, student or self-sufficient.
Phew! What does this mean in practice?
Lounes applicants need to provide evidence that their sponsor:
- Was working, self-employed, a student or self-sufficient prior to naturalising as British (e.g. evidence of employment prior to the naturalisation certificate date).
- Was not a British citizen before exercising free movement rights (e.g. copy of their previous EU passport and birth certificate).
- Has naturalised as British (e.g a copy of their naturalisation certificate).
- Continues to hold their EU nationality (e.g. their current EU passport or ID card. Home Office guidance confirms that this needs to be the actual document rather than a copy, and experience bears that out).
- Continues to hold British nationality (e.g. copy of current British passport).
- Would be entitled to pre-settled or settled status under the EU Settlement Scheme if they weren’t ruled out by their British citizenship (i.e. the same evidence as if the sponsor were applying for pre-settled or settled status, which is largely about proving residence in the UK).
As mentioned above, there appears to be no requirement for the dual national sponsor to still be a “qualified person” (worker, student etc) at the date of the application. Nevertheless, if there is evidence that they remain a qualified person, it might be helpful to include.
You should also consider whether the sponsor’s country of EU nationality became a member state after the sponsor acquired British citizenship. If so, the applicant will fall foul of Regulation 2(1)(b), covered above.
Finally, there are the other requirements of FP6.(1). Everything above is just about satisfying FP6.1(b), but there are other criteria — albeit less onerous — that we won’t go into detail about here. These include that the applicant is in fact a family member of their dual national sponsor, and that the sponsor is resident in the UK or will be travelling to the UK with the applicant within six months.
How does the application process work?
Online application form for those outside the UK
Again assuming that the applicant is outside the UK, the first step is to apply online using this form. When asked “Select the category you are applying for”, you should first select “Close family member of a relevant naturalised British citizen who would qualify for status under the EU Settlement Scheme were they able to apply for it or a dual British and EEA national (McCarthy route)”. When you select this option, a further question will pop up asking: “Which route are you applying under?” to which you should answer “Family member of a relevant naturalised British citizen.”
The person will have to attend a visa application centre to provide a photograph and fingerprints. There is no option for Lounes applicants to do this using an app.
Applying to the EU Settlement Scheme from within the UK
Once in the UK, the Lounes applicant can then apply to the EU Settlement Scheme. This essentially involves submitting the same information as for the family permit.
The rules are for this application are similar to those for a family permit. The definitions referred to above in Appendix EU (Family Permit) mirror the definitions in Appendix EU. You can follow them through in the same way. The rules are also summarised in caseworker guidance, beginning on page 18.
Lounes applicants can’t use the EU Settlement Scheme app. As page 19 of the guidance confirms, a paper application form is required. Paper forms are personalised and issued individually to the applicant so you will need to request one from the EU Settlement Resolution Centre. You should obtain the paper form well in advance to avoid delays.
What will change from 1 July 2021?
The definition of a “relevant EEA citizen” in Annex 1 to both Appendix EU (Family Permit) and Appendix EU differ slightly for applications submitted on or after 1 July 2021. In short, the applicant must show not only that their sponsor would have been entitled to pre-settled or settled status, but also that their status “would not have lapsed or been cancelled, curtailed, revoked or invalidated”. This is essentially to make sure that the sponsor has not committed a crime or other conduct that would get a non-British person removed from the country (see Annex 3 for details).
The application process should be as described above even after 1 July 2021.