Dual nationality and EU citizens – updating the rules on family members

EEA Immigration solicitors will be pleased to see that the latest version of the EEA Regulations – which come into force on 24th July 2018, will confirm that those with dual nationality with another EU member state retain their EU citizen rights after naturalisation as a British citizen.

The amended EEA Regulations formalise in legislation the decision of the Court of Justice of the European Union in the case of C165/16 Lounes which found that EU citizens who naturalise as British but retain dual nationality with their original EU state, can retain their free movement rights. In respect of family members, as British Citizenship lawyers will recognise, this means that EU citizens with dual nationality will be able to sponsor family members under the EEA regulations rather than the more restrictive rules which apply to British citizens who do not have dual nationality of another EU country. This means that they will no longer have to rely on the Surinder Singh route – and, as all Immigration solicitors will appreciate, has important implications with Brexit looming ever closer and the announcement of the settled status scheme.

The position for those with dual nationality before Lounes

In the case of C-434/09 McCarthy, the CJEU gave a preliminary ruling in a case which involved a Mrs McCarthy who had dual UK and Irish nationality. She was born in the UK and had always lived there. She did not work and was in receipt of benefits. In 2002, she married a Jamaican national who did not have leave to remain in the UK. Mrs McCarthy then applied for an Irish passport, and later still, with her husband, applied for a residence permit and residence document under EU law as an EU citizen and spouse. The applications were refused on the basis that Mrs McCarthy was not a ‘qualified person’ because she was not a worker, self-employed or self-sufficient; accordingly her husband was not the spouse of a qualified person. The case eventually reached the Supreme Court from where the reference to the CJEU was made. The CJEU held that because Mrs McCarthy had never exercised her right to free movement, she could not benefit from EU provisions what were designed to protect EU citizens in the exercise of their free movement rights.

Following the McCarthy case, the UK government took the view that any EU citizen with dual nationality had to rely on domestic UK Immigration rules when applying to sponsor a family member to come to the UK, unless the so-called Surinder Singh route was open to them.

A reminder of Surinder Singh

Surinder Singh is a long-standing EU case relating to the rights of EU citizens and their family members. Essentially, if an EU citizen returns to the UK from another EU/EEA member state where he or she has formed a relationship with a third country national, he or she can rely on EU free movement rules as a qualified person to bring their family member back with them. Surinder Singh would not have helped Mrs McCarthy and her husband because she had not travelled to another EU country and formed a relationship with her husband there before returning to the UK.

How Lounes changed the position for those with dual nationality

Case C-165/16 concerned a Spanish national who moved to the UK to study in 1996 and remained here and been in full time Employment since 2004. She became a naturalised British citizen and obtained a British passport although retained her Spanish nationality. Following her naturalisation, in 2013, she began a relationship with an Algerian national who had initially come to the UK on a 6 month visitor visa but had overstayed illegally. They married in 2014, remaining in the UK and in April 2014 Mr Lounes applied for a residence permit on the basis that he was a family member of an EEA national. In May 2014 he was served with a ‘notice to a person liable to removal’ and a notice of a decision to remove him on the basis that he was an illegal overstayer. Shortly after that, his application for a residence card was refused on the basis that his wife was no longer regarded as an EEA national for the purpose of the EEA Regulations in place at the time.

The factual background in Lounes differed from McCarthy on the key respect that there was no doubt that Ms Ormazabal had exercised her EU citizen’s rights to free movement. The CJEU found that an EU citizen such as Ms Ormazabal who had exercised her rights to free movement should not have those rights and the attendant benefits under EU law stripped from her by virtue of the fact that she became a naturalised British citizen. Article 21(1) of the Treaty on the Functioning of the European Union (TFEU) protected these rights.

Implementing Lounes in the EEA Regulations

The changes to the EEA Regulations implement Lounes so that as long as an EU citizen has exercised Treaty rights before their naturalisation as a British citizen, he or she will retain those rights – and therefore be able to rely on EU provisions relating to family members rather than domestic UK provisions.

Lounes will survive Brexit

From what London immigration solicitors have seen of the settled status scheme for EU citizens, it seems that Lounes, and the provision in the updated EEA Regulations, will survive Brexit. For a start, there does not appear to be any requirement in the settled status scheme for an EU citizen applying for settled status to evidence that they have exercised their Treaty rights. Further, the settled status scheme as it currently stands, allows for third country nationals who are family members of dual nationals, to apply.

OTS Solicitors are Legal 500 recommended EEA Immigration solicitors based in London. We advise on all aspects of Immigration law, and will be happy to help EU and EEA nationals with any queries they have about themselves or family members as Brexit approaches. To book an appointment today please call 0203 959 9123 to speak to one of our top London immigration solicitors.