07 Jul 2017, 40 mins ago

On 30 May 2017, Advocate-General Bot [“AG”] of the European Court of Justice [“ECJ”] provided an opinion following a reference from the Administrative Court of England and Wales, concerning a judicial review challenge brought by the spouse of a dual Spanish-British national, who had relied on his wife’s EEA rights to apply for a residence card which had been rejected. Whilst caution must be exercised until the full judgment is handed down by the ECJ later on this year, the opinion of the AG indicates that the UK Government have been too restrictive in their treatment of the rights of EEA nationals once they acquire British nationality.

The circumstances of the reference were as follows: Mr Toufik Lounes, an Algerian national, married a dual Spanish-British national in 2014. Mr Lounes’s wife (Ms Garcia Ormazábal) had exercised her right of free movement under Directive 2004/38/EC , also known as the Citizens’ Directive (“Directive”), and moved to the UK in 1996. In so exercising her rights, she eventually acquired permanent residency. Thereafter Ms Garcia Ormazábal applied for nauturalisation as a British citizen, and her application was granted in 2009. For all intents and purposes Mr Lounes’s wife was a dual EEA and British national.

In 2012, the UK Government amended the 2006 EEA Regulations (“Regulations”), which transpose the Directive into our own domestic law. In so amending the Regulations, the Government took the view that once an EEA national has naturalised as a British citizen, they lost the right to benefit from their EEA rights, which inter alia, meant they could no longer rely on their free movement rights under the Directive, including bringing their family members to the UK. Instead they would have to apply under the more restrictive Immigration Rules.

Having married in 2014, Mr Lounes thereafter applied for a Residence Card as the family member of an EEA national exercising her treaty rights in the UK, under the Directive. The application was then refused in May 2014 on the basis that Ms Garcia Ormazábal was no longer considered an EEA national following her grant of British citizenship. Accordingly, she could no longer rely on her rights under the Directive, and in turn, Mr Lounes could not benefit.

Mr Lounes lodged a claim for judicial review in the Administrative Court. The court expressed their concerns regarding the compatibility of the amended EEA Regulations and thus made a reference on the following question, (the above fact pattern having been put to the ECJ):

[A]re she and her spouse both beneficiaries of Directive 2004/38/EC, within the meaning of Article 3(1), whilst she is residing in the United Kingdom, and holding both Spanish nationality and British citizenship?

The AG considered that there was an inextricable link between the exercise of rights by Ms Garcia Ormazábal under the Directive and her acquiring British citizenship, in that to have obtained the latter citizenship, she had to first exercise her Treaty rights under the Directive. Whilst the AG accepted that it was for the individual member states to consider how to transpose EU law into their national law, he opined that Ms Garcia Ormazábal’s position had changed following her acquisition of British citizenship such that she was no longer a ‘beneficiary’ of the free movement rights under the Directive; thus, Mr Lounes could not benefit either as he could not derive a right of residency from someone who was no longer a beneficiary.

However, the AG considered that under the Treaty on the Functioning of the EU (“TFEU”), Article 21(1), and the Court’s earlier jurisprudence, member states must give effect to the principle of free movement. Article 21(1) states:

Every citizen of the Union 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.

Thus, the effectiveness of rights guaranteed under Article 21(1) require EU citizens (including for the time being, dual EEA-British Citizens) to be allowed to continue their family life in the chosen member state of whose nationality they have acquired, stating at §88 of his opinion:

The deeper integration which Ms Ormazábal desired in the host Member State by becoming naturalised would ultimately deprive her of the rights granted to her in respect of her spouse by EU law, which would manifestly be likely to harm her pursuit of family life in that State and thus, in the end, the integration which she has sought. What is given with one hand would therefore be taken away with the other.

In essence, the conditions for granting a derived right of residence to a third-country national, who is a family member of an EU citizen should not, in principle, be stricter that those laid down by the Directive. Thus the UK Government’s must have due regard to the effectiveness of the principle of free movement under Article 21(1) of the TFEU. This follows the well-established doctrine of EU law having supremacy over the national law of member states.

Notwithstanding this conclusion, the above consideration is only the opinion of the AG, and the ECJ is due to consider the case in full later this year. It remains to be seen what effect the full judgment will have should the ECJ agree with the AG’s opinion, and what practical effect this will have once the UK leave the EU.

Full opinion of the Advocate General can be found here.


© Gherson 2017