The Advocate General of the Grand Chamber of the Court of Justice of the European Union (CJEU) has delivered his opinion on a UK case on the right of EU dual citizens to have their family members join them in their host Member State under EU citizenship law. The CJEU’s ruling will also be significant in light of the UK’s decision to leave the EU, and on EU citizens applying for British passports.
Article 21 of the Treaty on the Functioning of the European Union provides every EU citizen has the right to move or reside freely within the EU, and to have family members join them. However, a 2004 EU Directive giving effect to free movement was interpreted by the CJEU in the McCarthy case as only applying to EU citizens with dual nationality who have exercised their right to free movement and who are residing elsewhere than their Member State of origin. In light of that case, UK Immigration Regulations were amended in 2012 to preclude those with dual British and EEA citizenship from benefiting under the 2004 Free Movement Directive, and thus precluded their family members from acquiring a derivative right of residence.
The claimant, Toufik Lounes, is an Algerian national whose wife, a Spanish national, had moved to the UK and acquired British citizenship. The Home Office refused his application for residence in the UK, on the basis that the free movement Directive no longer applied to his wife as she was now a British citizen. The claimant sought judicial review of this refusal, arguing that the 2012 amendments unlawfully fetter free movement rights under EU law. When the case came before the UK High Court, the claimant submitted that his wife had exercised her right to free movement in coming to the UK to work in the first place. Mr Lounes argued that on this basis, the McCarthy decision did not apply as in that case, the unsuccessful applicant had dual British-Irish citizenship but had never lived outside the UK. The respondent, the Home Secretary, argued that a person could not hold rights of residence under the 2004 Directive as well as by virtue of their nationality, as the fact of being a British national already confers the unconditional right to live in the UK. Ms Justice Lang conceded that permanent residence in another Member State is envisaged by the Directive. The case was referred to the CJEU for a preliminary ruling in 2016, on the question of whether, where a Spanish national moves to the UK in exercise of free movement rights then becomes a dual national, and then marries a third country national with whom she resides in the UK, they both benefit from the free movement Directive.
Advocate General, Yves Bot’s opinion stated that for each Member State to lay down the conditions for the acquisition and loss of nationality, but that this power must be exercised in accordance with EU law. He stated that Mr Lounes’ wife’s legal situation had been altered by her naturalisation to the extent that she could no longer be considered a beneficiary under the Directive, whose application was limited to EU citizens residing outside the Member State of which they are a national. However, Article 21(1) TFEU permits EU citizens, and in some cases their third country family members, to move and reside freely within the EU. As such, in the Advocate General’s opinion, to make this right effective, EU citizens should be able to continue the family life they had been leading with their spouse in the Member State whose nationality they have acquired. He went on to say that the conditions imposed by a Member State allowing a non-EU spouse of an EU citizen to be granted a derivative right of residence should not be stricter than what is laid down in EU Directives.
A rare full panel of 15 judges will decide on whether or not to follow the opinion of the Advocate General, and will deliver judgment later in the summer.
Click here for a summary of Advocate General Bot’s Opinion.
Click here for analysis of the case and here for the High Court judgment. The judgment will then be considered by the UK High Court, which referred the case to the CJEU.