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

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 applied in the same way in all EU countries, and settles legal disputes between national governments and EU institutions. The Advocate-General provides an initial opinion before the judges deliberate and give their own verdict. As the Advocate-General opinion is advisory and do not bind the court, the judges are not obliged to follow them, but they are nonetheless very influential and are followed in most cases.

Background of the case

Ms Ormazábal, a dual Spanish and British national, married, Mr Lounes, an Algerian national. Mr Lounes subsequent application for a residence card as a family member of an EEA national was refused by the Home Office in 2014 on the basis that Ms Ormazábal was no longer regarded as an EEA national under Directive 2004/38 because she had acquired British nationality. Consequently, she was no longer entitled to rely on EU law and the rights derived from it for family members.

The Administrative Court doubted the compatibility of UK law with EU law and referred the case to the Court of Justice to give a ruling on this issue.

Dual nationals falling outside the scope of the Directive 2004/38

The Directive 2004/38 is sometimes known as the Citizens Directive because it clarifies and applies the right of free movement and residence for EU nationals and their family. These rights fall under Article 3(1) of the Citizens Directive which states:

all Union citizens who move to or reside in a Member State other than that of which they are a national, and … their family members … who accompany or join them’ are ‘beneficiaries’ of the rights conferred by the directive

This provision makes nationality a determining criterion, so once Ms Ormazábal becomes a dual national the legal rules that apply to her changes. She fell within the scope of the Directive when she exercised her freedom of movement by leaving Spain to move to the UK in 1996, first as a student and then as a worker, but once she became British the wording of the Directive excluded her. Once excluded, Mr Lounes no longer benefitted from a derived right of residence as a non-EU family member of an EU national.

The Advocate-General decided in favour of the Home Office that Ms Ormazábal no longer falls within the wording of the Directive. This means that the rights contained within the Directive are no longer applicable to an EU national and their family members, once the EU national has acquired the nationality of the Member State.

Difference between the Directive and the Treaty on the Functioning of the European Union

The Treaty on the Functioning of the European Union (TFEU) is one primary Treaty of the European Union. The TFEU forms the detailed basis of EU law, including principals of law in areas where EU law operates. It is known as primary legislation. So, while the Advocate-General agreed with the Home Office in their opinion of the Directive, the primacy of the Treaty takes precedent.

Of the right to move and reside freely Article 21(1) of the TFEU defines it as:

[e]very EU citizen shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.

This provision has been widely interpreted by the Court, enabling EU citizens and the family members to continue to benefit from EU law even when in cases where the EU citizen returns to their country of origin. So, when a British citizen moves to and works in another EU country in which she establishes family life, she can be allowed to return to the UK and have her family members join her under EU law. This is to avoid any form of obstacle that could inhibit the fundamental right to free movement guaranteed by EU law, ensuring that the conditions for granting that right of residence for this British citizen when returning to the UK is not stricter than those provided for under EU law.

It is this spirit of protection of the fundamental right of free movement as defined by the Treaty that, according to the Advocate-General, also applies in the case of dual nationals and their family members.

The Advocate-General explained that Ms Ormazábal, by choosing to become naturalised, experienced her wish to live in the UK, building strong and lasting ties. Her years of living and working in the UK created an inextricable link between her exercise of EU rights and her acquisition of British nationality, and that she took her integration in the UK to its logical conclusion by becoming British. This logical conclusion was in accordance not only with Article 21(1) TFEU, but also the Directive which seeks to make permanent residence a genuine vehicle for integration.

If the UK were then to deprive Ms Ormazábal of the rights she has till now been entitled in respect of the residence of her family members, by being naturalised, this would annihilate the effectiveness of the rights which she derives under the TFEU. The Advocate-General saw this outcome as being illogical and full of contradictions.

It seems to the Advocate-General that deeper integration would ultimately deprive her of the rights granted in respect of Mr Lounes which would harm her pursuit of family life in the UK and therefore the integration which she sought. To continue that family life she would be forced to leave the UK and move to another EU state to be able to claim once again the rights she previous enjoyed.

It was for those reasons that the family life must continue in the UK and the treatment to Ms Ormazábal and her family should not be less favourable than that accorded to her under the Directive before her naturalisation or then would be granted to her if she were forced to move to another EU state.

What were the key requirements for the Advocate-General?

The Advocate General pointed out the following requirements as being important to Ms Ormazábal’s case:

  1. She is a EU national that has become a dual national
  2. She genuinely resided in the UK for a 5-year period and became permanently resident
  3. During that 5-year period, though it is unclear when exactly it commenced, she created a family life with a non-EU national

In these circumstances, the requirements for Mr Lounes to be granted a derived right of residence should not be stricter than those provided for under the Directive. In other words, Mr Lounes can continue to reside with his EU national partner.

Is this the final say?

The case will still need to be decided by the panel of 15 judges this summer and, while the Court is not required to follow the Advocate-General’s opinion, it rarely decides otherwise.

Chris Desira

Christopher Desira has been practicing immigration law for twelve years, he is the director and founder of Seraphus. He is a practicing Solicitor, and a qualified Immigration and Asylum Accredited Senior Caseworker and Supervisor. Prior to Seraphus he was the head of the immigration department at Lawrence Lupin Solicitors. He has also worked at several charities including Bail for Immigration Detainees, the Joint Council for the Welfare of Immigrants, and Freedom from Torture.

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