ECJ Gives Critical Ruling On Non-EU Residency Rights

Immigration image illustrating Non-EU residency rights

Late last month, the European Court of Justice (ECJ) Advocate General, Yves Bot, stated residency rules for new nationals of member states who were previously nationals of another EU country should not in principle be stricter than the rules upholding the right of free movement of people in the bloc.

Now that Article 50 has been triggered, the rights of EU citizens who have been naturalised as dual citizens have become more important.  With many EU nationals working with the best immigration solicitors to acquire permanent residence Cards and British Citizenship following the June Referendum in which the UK voted to leave the EU, continuing to deny dual citizens’ rights under EU law could have disastrous consequences for some families.

The case in question

Mr Toufik Lounes, an Algerian national, entered the UK in 2010 on a six-month visitor visa and then overstayed illegally. Ms Perla Nerea García Ormazábal, a Spanish national, moved to the UK as a student in 1996 and began working full time in the UK in 2004.  She became a naturalised British citizen in 2009.

In April 2014, Mr Lounes and Ms García Ormazábal married. Following their marriage, Mr Lounes applied to the Secretary of State of the Home Department for the issue of a residence card as a family member of an EEA (European Economic Area) national.

On 14 May 2014, he was served with a notice, together with a decision to remove him from the UK, because he had overstayed in Britain in breach of immigration controls.  In addition, by letter of 22 May 2014, the Secretary of State for the Home Department informed Mr Lounes that his application for a residence card had been refused.  The letter stated that, in accordance with UK law, Ms García Ormazábal was no longer regarded as an ‘EEA national’ because she had acquired British nationality.  Consequently, she was no longer entitled to rely on the rights conferred by the directive on free movement and Mr Lounes could not, therefore, claim a residence card as a family member of an EEA national.

Mr Lounes brought a claim before the High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court), against the decision of 22 May 2014. The High Court, having concerns regarding whether the UK legislation surrounding this issue was compatible with EU law, asked the ECJ to provide a ruling on the issue.

The opinion from the ECJ

The Home Office argued that for Ms Garcia Ormazábal, freedom of movement rights, which enable EU citizens to live with their family in any other state within the EU, were lost once she became a British Citizen. The advocate general, Yves Bot, agreed that this appeared to be the case under the European Directive 2004/38 on freedom of movement, but found that García Ormazábal had legacy rights as an EU national.

Bot wrote: “García Ormazábal no longer falls within the definition of a ‘beneficiary’ within the meaning of the directive. It follows that her spouse is not eligible, on the basis of the directive, for a derived right of residence in the member state of which his spouse is now a national.

“Her legal situation has profoundly altered, both in EU law and in national law, on account of her naturalisation.”

However, Mr Bot then added: “Although it is for each Member State to lay down the conditions for the acquisition and loss of nationality, that competence must be exercised having due regard to EU law and the national rules in question must have due regard to EU law.”

In addition, Mr Bot found the rights Ms García Ormazábal used to reside in the UK continued to apply even though she had become a British national subsequently, under article 21 of the superior and overarching Treaty on the Functioning of the European Union (TFEU).

“Under Article 21(1) TFEU, Member States must permit EU citizens who are not their nationals to move and reside within their territory with their spouse and, possibly, certain members of their family who are not EU citizens,” said Bot.

The TFEU is one of the foundation Treaties of the EU.  It forms a basis on which EU law is formed. Therefore, even though Mr Bot conceded that Ms García Ormazábal fell outside the scope of the 2004/38 directive on freedom of movement after being granted British Citizenship, the primacy of the Treaty takes precedence.

Mr Bot theorised that if that it would be illogical and problematic if the British Government were to deny EU citizens who had become naturalised, the rights that they, up until the point of having a British passport, enjoyed under the TFEU. This type of situation could prevent a person from pursuing a family life in the UK, perhaps forcing them to leave the UK and settle in another EU country so they could once again claim the rights they previously enjoyed.

For these reasons, family life must continue in the UK, and EU nationals who have taken up British Citizenship should continue to have the same rights as they would have under the 2004/38 directive on freedom of movement.

What this opinion means for the future of EU/UK dual nationals and their families

The opinion given in this case highlights the extreme complexity of the rules governing the rights of EU nationals and their families living in other member states, something that the best immigration lawyers have been grappling with for many months.  Once Brexit negotiations begin, the British government will need to work through a myriad of intricate issues relating not only to EU citizens but the rights of their family members.

The ECJ will consider Mr Bot’s decision and is expected to make a ruling over the summer. This ruling will be binding across the bloc.  However, would be very unusual for the ECJ not to follow the Advocate General's opinion.

The outcome of this decision could impact greatly on the rights of EU nationals living in the UK after the country leaves the bloc in approximately 19 months.

OTS Solicitors is one of the most respected immigration law firms in London. By making an appointment with one of our immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today.  We can assist with your application for a permanent residence Card and British Citizenship and answer any questions you may have on your rights to remain in the UK following Brexit.

If you wish to discuss any of the points raised in this blog, please phone our London office on `0207 936 9960.

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