In a landmark case, the European Court of Justice (ECJ) has ruled that a European citizen living in another member state, who subsequently becomes a citizen of that state, does not lose the right to live with their non-EEA spouse under EU law, by virtue of acquiring the nationality of that state.
The case involved a Spanish national, Garcia Ormazabal, and her husband Toufik Lounes. Ms Ormazabal moved to the UK as a student in 1996 and has been employed full-time since September 2004. In August 2009, she was naturalized as British and was issued with a British passport, while also retaining her Spanish nationality. Mr Lounes, an Algerian national, entered the UK in 2010 on a six-month visa and then overstayed. Ormazabal and Lounes married in 2014.
Lounes applied for a residence card as a family member of an EEA national. His application was rejected and the Home Office argued that Ms Ormazabal’s free movement rights no longer applied when she became a British citizen, i.e. that her case was governed by domestic immigration laws and not the 2004 ‘Citizens' Directive’ since she became a British citizen.
The ECJ agreed that Ms Ormazabal was not entitled to invoke the free movement rights (including the family reunion rules) in the EU citizens’ Directive, since she was now a British citizen in the UK (and therefore no longer moving between two member states). However, as a Spanish national, Ms Ormazabal could rely on the EU treaties to invoke her EU citizenship. Treaty citizenship provisions, unlike the Citizens’ Directive, contain no specific rules on family members. However, the Court said that someone in Ms Ormazabal’s position should be treated no less favourably, as it would be unjust to treat her worse than a Spanish citizen who had moved to the UK and not acquired UK nationality. The ECJ concluded that Mr Lounes had a ‘derived right’ under EU law.
The result is important for EU citizens who are currently considering their position in a context of high uncertainty and considering whether becoming a British citizen could be the best way of securing their status in the UK post-Brexit.
The ruling followed the release of a ‘technical note’ by the UK Government on the ‘settled status’ it proposes for EU citizens after the UK leaves the EU. The brief, 5-page, document was sent to the European Commission as part of the Brexit negotiations and states that those applying to stay in the UK will not have their applications refused on minor technicalities. Caseworkers considering applications will exercise discretion where appropriate, as part of a new system that will enable a streamlined procedure for settlement applications by EU citizens. The note also states that the procedure will be available for “around two years after the UK’s exit from the EU”.
The government confirmed that EU citizens holding permanent residency status will be able to effectively switch to the new settled status without needing to comply with the rigorous application process.
The paper also commits to minimising the documentary evidence that applicants will need to provide and to enabling caseworkers to contact applicants to resolve minor issues. Furthermore, the government is looking to keep the cost of an application to no more than that of a British passport. Importantly, under the proposals EU citizens will not be required to hold comprehensive sickness insurance or to provide fingerprints as part of their application. Applicants will nevertheless be asked to declare any criminal convictions and they will be checked against UK security databases. Consideration of deportation on grounds of public policy or public security will continue to apply to any pre-exit criminal conduct.
According to Whitehall, the proposal is in line with the statement Theresa May made in Florence in September, according to which: “people will continue to be able to come and live and work in the UK during the implementation period after the UK leaves the EU, and there will be a registration system”.
It should be noted, however that the recent ‘technical note’ is merely a proposal at this stage and not law. Like various briefings and policy documents before it, it is dependent on the outcome of the Brexit negotiations and the assumption that the remaining EU member states will extend similar deals to UK nationals living abroad in the EU.
Gherson has over 29 years of experience in handling the immigration matters of both individuals and corporations. Should you wish to discuss applying for permanent residence or any other immigration matters please contact us.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.