Court of Justice finds EU citizens retain free movement rights after naturalisation in host state

The Court of Justice of the European Union has found in the case of C-165/16 Lounes that EU citizens who move to the UK and later naturalise as British retain their free movement rights under EU law even though they have become British. The court has held that the UK has wrongly been refusing to recognise free movement rights for such EU citizens since 2012. The case has particular significance to those EU citizens who have naturalised as British following the Brexit referendum because it means that the UK has wrongly been denying them their EU law rights in the meantime. The victory is a Pyrrhic one for them, perhaps, because after Brexit…

14th November 2017 By Colin Yeo

AG: permanent residence needed before ‘enhanced protection’ kicks in

Today saw the release of the Advocate General’s Opinion in the Court of Justice of the European Union (CJEU) joined cases of B v Land Baden-Württemberg C-316/16 and Secretary of State for the Home Department v Franco Vomero C-424/16. The issue in these cases concerns the entitlement of European citizens to the ‘enhanced’ level of protection against deportation when they have committed crimes. Where an individual is entitled to such a level of protection – broadly attained following ten years’ residence in a European country – the member state must show that there exist imperative grounds of public security to justify their expulsion. For a detailed look at the law…

24th October 2017 By Nick Nason

UK wrong to deny residence rights for non-EEA family members of dual nationals

The question about what rights are enjoyed by an EU citizen who naturalises as a British citizen becoming a dual citizen is critically important in the context of Brexit. We previously gave some context on why the UK denies dual citizens’ rights under EU law and why many lawyers believe that approach is wrong. This issue was put to the Court of Justice in the case of Lounes C-165/16 has now received a formal Opinion by the Advocate-General suggesting that the UK was wrong to deny EU rights to dual citizens and their family members. Advocate General Opinions The Court of Justice interprets EU law to make sure it is…

31st May 2017 By Chris Desira

New CJEU case extends Zambrano rights of residence, emphasises best interests of children

In a new case, Chavez-Vilchez and Others v Netherlands C-133/15, the Court of Justice of the European Union has significantly extended Zambrano rights beyond those so far recognised by the Home Office and UK courts. The case offers far better guidance than was available in previous cases and emphasises that the impact on children is a primary consideration. Background The case involved seven mothers who had applied to the Dutch authorities for residence on the basis of being the primary carers of young Dutch children. They had all been refused residency because it was said that the fathers of the children could care for them, and therefore the children would not…

16th May 2017 By Colin Yeo

Detention of Dublin asylum seekers held to be unlawful

Al Chodor and Others (C-528/15) In a highly significant judgment the CJEU has shown, in effect, that the Home Office has unlawfully detained hundreds or even thousands of individuals seeking international protection. The background facts The Al Chodor family are Iraqi nationals. They travelled to the Czech Republic and were subject to a police check in May 2015. During their police interview, they stated that they had fled Iraq via Turkey to Greece. They had continued their journey and were stopped by police in Hungary, where they made an asylum application. The Czech Foreigners Police Section was of the view that they posed a serious risk of absconding whilst in the…

23rd March 2017 By Thomas Beamont

The Surinder Singh immigration route: how does it work? (updated)

This blog post has been updated to address the changes introduced in the Immigration (EEA) Regulations 2016. The ‘Surinder Singh route’ has become well known to British citizens seeking to be reunited with their family members. The toughening up of UK immigration rules in July 2012 – particularly the introduction of the minimum income rule and its labyrinthine documentary requirements and the awful elderly dependent relative rules – has resulted in an ever increasing number of split families. The Childrens’ Commissioner has described affected families with children as “Skype Families”. An old Court of Justice of the European Union case called Surinder Singh provides a potential means to rely on…

31st January 2017 By Colin Yeo

EU derived rights of residence not automatically lost if crime is committed

In two linked cases, CS v UK C-304/14 and Marin v Spain C-165/14, the Court of Justice of the European Union has ruled that Zambran0-like derived rights of residence under EU law are not automatically lost if a crime is committed. Instead, each case must be assessed on its merits and a judgment reached applying normal principles of EU law. Case of CS The first of the cases has proven particularly controversial as the claimant has been named in Parliament as the daughter in law of Abu Hamza, notorious Islamist extremist. She was herself jailed for 12 months for attempting to smuggle a mobile phone sim card during a prison…

3rd October 2016 By Colin Yeo

CJEU judgment on domestic violence victims: NA C-115/15

Last week the Court of Justice of the European Union gave judgment in the case of NA C-115/15 on the vexed issue of retained rights of residence for victims of domestic violence. It is hard to care given the result of the Brexit referendum but it is a very important case for those affected by this difficult situation. It is a Curate’s Egg of a case. While there are parts that are good and useful, on the central question of protection for victims of domestic violence it is very disappointing. It is all the more disappointing given that it comes on the back of a very enabling and positive Advocate General…

6th July 2016 By Colin Yeo

New AG Opinion favours protection for victims of domestic violence

The final judgment of the court in SSHD v NA Case C‑115/15 (previously NA (Pakistan) [2015] EWCA Civ 140) will come later this year, but the Advocate General Opinion released today suggests that victims of domestic violence should retain EU law rights of residence even where the EU citizen was not exercising treaty rights in the country concerned at the time of divorce: (1) In cases where divorce is consecutive to acts of domestic violence, Article 13(2(c) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the…

14th April 2016 By Colin Yeo

New CJEU ruling on procedural protection in legal challenges to EU law decisions

In an interesting but almost impenetrable judgment, the Court of Justice of the European Union gives some guidance on procedural protections available to those bringing challenges to EU law decisions which adversely affect them. The case is Benalla v Belgium C‑161/15. The point that arose was a fairly obscure one. Mr Benalla, a Spanish citizen, applied for and was granted a residence certificate in Belgium as a worker. However, it seems it was alleged that the job was not real or effective in some way and the residence certificate was revoked: see paragraph 9 of the judgment. Mr Benalla was not given any notice of the revocation. He challenged the decision and…

18th March 2016 By Colin Yeo

EU right of residence where a marriage ends plus source of self sufficiency

The new case of Kuldip Singh Case C‑218/14 is important on two separate issues: when non EU citizens might retain rights of residence in the event of divorce and on the source of self sufficiency in EU law. EU free movement law does not only apply to EU citizens but also to their family members from outside the EU. These family members are sometimes referred to by lawyers as “third country nationals” because they come not from the UK, not from the EU country of the EU citizen but from a third country outside the EU. For example, where a French citizen is married to a Brazilian woman, EU free movement law…

4th August 2015 By Colin Yeo

McCarthy and EU family permits

Last year the Court of Justice of the European Union handed down judgment in the case of McCarthy v United Kingdom C-202/13. In some ways it is a very straightforward case: the UK is not permitted to require residence card holding family members of EEA nationals to apply for yet further documentation in the form of an entry permit.

29th January 2015 By Colin Yeo

EU court bans credibility ‘tests’ for gay refugees

In welcome news for LGBT asylum claimants, the Court of Justice of the European Union ruled this week that ‘tests’ to prove a claimant’s sexual orientation, or intimate questioning about sexual behaviour, may breach the rights to human dignity and respect for private life contained in Articles 1 and 7 of the Charter for Fundamental Rights. The ruling contains useful material for challenging adverse credibility findings in Home Office refusal letters, often resulting from prurient questioning in the asylum interview.

4th December 2014 By Helen Foot

Dano and the exclusion of inactive EU citizens from certain non-contributory social benefits

When the Grand Chamber handed down its judgment in Dano v Jobcenter Leipzig (C-333/13) on 11 November 2014, it was the subject of much media attention: Germany can deny benefits to jobless EU migrants, court rules (The Guardian), Landmark ECJ ruling boosts David Cameron’s bid to clamp down on EU benefit migrants (The Independent), EU court ruling backs curbs on ‘benefit tourism’ (BBC News) and The end for benefit tourism: European court rules unemployed EU migrants can be denied welfare payments (The Mirror). Such media interest for a judgment of a Court of Justice of the European Union is unusual, and for cases on social security it is practically unheard of….

19th November 2014 By Desmond Rutledge

From ABC to DSSH: How to prove that you are a gay refugee?

In an e-mail posting on a practitioners’ discussion group last week, a representative asked the group for details of a psychiatrist in order to prove that the detained client is gay. In follow-up e-mails, it was revealed that the enquiry was prompted by Counsel’s advice, and that the author meant no offence. Luckily for the author of the enquiry, the Court of Justice of the European Union last Thursday published the Opinion of Advocate General Sharpston in the Cases of A, B and C , which relate to how an asylum seeker could establish that they are gay, or more importantly, what level of investigation would violate their human rights?

23rd July 2014 By S Chelvan

Woman who temporarily gives up work for childbirth still a worker

Court of Justice of the European Union in Saint Prix v UK (Case C‑507/12): Article 45 TFEU must be interpreted as meaning that a woman who gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth retains the status of ‘worker’, within the meaning of that article, provided she returns to work or finds another job within a reasonable period after the birth of her child. Astonishing that the UK Government fought this one so hard in this day and age.

20th June 2014 By Colin Yeo

CJEU: Dependency is a question of fact

In a new judgment in the case of Reyes v Sweden [2014] EUECJ C-423/12 (BAILII link) the Court of Justice of the European Union has addressed the question of whether a dependent family member must be involuntarily dependent in order to qualify for free movement rights and how far a person’s capacity and intention to work after arrival is relevant to the question of dependency. The answers are essentially that the reason for past dependency does not matter as long as the dependency is real and that capacity or intention to work in future in the Member State is not relevant.

27th January 2014 By Colin Yeo

It’s official: CJEU says prison doesn’t count

When an EU citizen breaks the law of another member state, fundamental questions arise. How should European states treat EU nationals and their family members who have committed crimes? How can the principles of free movement and integration, which are central to the idea of the European Union, be balanced against the need for law and order? In two recent cases (Onuekwere v Secretary of State for the Home Department and MG v Secretary of State for the Home Department) the European Court of Justice has considered protection from expulsion under Directive 2004/38/EC. The decision in Onuekwere is disappointing but perhaps not surprising. In MG, however, the court has muddied…

20th January 2014 By Leonie Hirst

After Zambrano and McCarthy, we now have Dereci…

This entry is part 5 of 9 in the series Zambrano series

On 15th November 2011, the Court of Justice of the European Union (‘the CJEU’) handed down its judgment in the case of Dereci (C-256/11).  This was a much awaited judgment after the ‘Zambrano and Article 20’ revolution was dampened by McCarthy (see here for previous posts in relation to Zambrano and here for McCarthy).  As a quick reminder, Article 20(1) of the TFEU, with which all these cases are concerned, provides that: “Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.” Unfortunately I cannot say with confidence that Dereci provides all of the answers in respect to how Article 20…

23rd January 2012 By Sarah Pinder

NS v UK: removals under the Dublin II regulation

In the case of NS v UK (C-411/10) (see here for FM’s earlier alerter post), the Court of Justice of the European Union (CJEU) held that the transfer of an asylum-seeker from one EU Member State to another under the Dublin II regulation is not permitted where a failing asylum system in the receiving State creates a risk of inhuman or degrading treatment. The case is one of a series of cases brought in relation to the difficulties faced by asylum-seekers in the EU. The applicant was an Afghan asylum-seeker residing in Britain who first entered the EU through Greece.  He resisted his transfer to Greece under the Dublin II regulation on the basis that the asylum situation there (described by UNHCR…

11th January 2012 By Grace Capel