The Court of Justice of the European Union (CJEU) has ruled that a non-EU national may be entitled to right of residence in the Member State in which an EU spouse has acquired nationality by way of dual citizenship.
The case involved Mr Toufik Lounes, an Algerian nation, and Ms García Ormazábal, a Spanish national that became a naturalised British citizen while retaining her Spanish nationality. Following their marriage in 2014, Mr Lounes was denied residency under UK legislation transposing the free movement directive which regarded Ms Ormazábal as no longer being an ‘EEA national’ after she obtained British citizenship. As such, Mr Lounes was not in a position to benefit from residency as a family member of an EEA national.
The UK High Court sought direction from the CJEU as it had doubts as to the compatibility of the Uk legislation with EU law. The CJEU found that the free movement directive only applies to EU citizens that exercise that freedom of movement – it does not govern the residence of an EU national in a Member State on which they are a national, as an unconditional right of residence is assumed. In gaining British citizenship and living a Member State of which she was a national, the directive no longer applied to Ms Ormazábal.
However, the Court concluded that Mr Lounes did have a ‘derived right’ of residence based on Article 22(1) of the Treaty on the Functioning of the European Union. The Count found that if free movement rights were to be effective, citizens in a situation such as Ms Ormazabal’s must be able to continue to enjoy, in the host Member State, the rights arising under that provision, after they have acquired the nationality of that Member State in addition to their nationality of origin and, in particular, must be able to build a family life with their third-country-national spouse, by means of the grant of a derived right of residence to that spouse.
Click here for the judgement in Toufik Lounes v Secretary of State for the Home Department.