24 Oct 2016, 51 mins ago

It is settled law that, in accordance with the Immigration (European Economic Area) Regulations 2006, EEA nationals who exercise Treaty rights in the UK are entitled to bring their family members to live with them.

It is also clear that EEA nationals, who have spent 5 years in the UK in accordance with the requirement of the EEA Regulations 2006, acquire permanent residence which in turn can then give them the right to apply to naturalise as British citizens.

What is not clear is whether EEA nationals who naturalise as British citizens, are still able to rely on the EEA Regulations in relation to their right to bring their family members to the UK.

In 2012 the definition of an “EEA national” contained in regulation 2 of the EEA Regulations 2006, has been amended, to exclude British citizens.

On this basis, the Home Office tends to refuse residence cards to family members of dual nationals.

The Administrative Court (Civil Division) has recently dealt with this issue in the test case of Lounes, R (on the application of) v SSHD [2016] EWHC 436 (Admin) (08 March 2016).

The Claimant is an Algerian national who married a Spanish national that had acquired British citizenship. He applied for a residence card as the spouse of an EEA national who exercised Treaty rights as a worker. The Home Office refused his application on the basis of the amended article 2 of the EEA Regulations 2006.

The Administrative Court decided that it is unclear whether a dual national continues to benefit from the European Parliament and Council Directive (EC) 2004/38 in such circumstances and referred the case to the Court of Justice of the European Union.

The questions referred to the CJEU are whether the Claimant’s wife as a dual national continues to be a beneficiary under Article 3(1) of Directive 2004/38/EC having exercised her right to free movement in the UK as a Spanish national and having acquired the right of permanent residence in the UK under Article 16(1) of the Directive or whether she ceased to be a beneficiary under Article 3(1) of the Directive when she acquired British citizenship by naturalisation.

Furthermore, the Court of Justice of the European Union will have to decide whether the amended definition of an EEA national in Regulation 2 of the EEA Regulations 2006, which now excludes British citizens, is contrary to the Directive and Article 21 of the Treaty on the Functioning of the European Union (“TFEU”).

Many cases which turn on similar facts are pending, and a decision of the CJEU which will bring clarity on these points is awaited with anticipation.