Last week parliament approved amendments to the EEA Immigration regulations, which transpose EEA free movement rights into UK law, in order to give effect to certain judgments of the Court of Justice of the EU (CJEU).
Arguably the most significant change in the regulations is the newly added provision that a national of an EEA State who is also a British citizen, where British citizenship was acquired after the EEA citizenship and after treaty rights had been exercised in the UK, may continue to be treated as an EEA national. It is important to note, however, that if the EEA State of which a person is a national becomes a member State after that person acquired British citizenship then this provision does not apply.
For example, if you initially came to the UK as a European citizen worker and obtained permanent residence and thereafter British nationality, the regulations will continue to treat you as an EEA national as long as you were a qualified person at the time of the acquisition of British citizenship and you continue to satisfy the requirements, i.e. have not at any time subsequent to the acquisition lost the status of qualified person.
Until recently the UK Government took the position that the family members of dual citizens cannot benefit from EU free movement rights. This meant that any non-EEA family members would lose their right of residence in the UK, if their EEA sponsor obtained British citizenship.
The question of whether a dual European and British national could exercise their EEA treaty rights in the UK has been going back and forth for many years. The Government’s initial position when the EEA regulations first came into force in 2006 was that the family member of a dual national may exercise free movement rights. However, the 2011 case of McCarthy v SSHD C-434/09 revised this policy when a British national, having obtained an Irish passport, attempted to transfer her EEA free movement rights to her Jamaican husband. The Home Office did not allow this and the European Court of Justice upheld this decision. The case caused a change in policy and this subsequently led to a decline in naturalisation applications by EEA nationals.
However, last year’s case of Lounes v SSHD C-165/16 changed this policy again. It concerned an EEA national who, having arrived in the UK, obtained permanent residency after exercising her treaty rights and then British citizenship, and who wanted to transfer her free movement rights to her spouse. The Home Office initially refused this application, but the European Court of Justice determined that this was not compatible with EU law and clarified that when an EEA national has exercised their treaty rights in the UK and has subsequently naturalised as a British citizen, the dual EEA national will be treated the same and their treaty rights could be transferred to their non-EEA family member, as long as they satisfy the other requirements of the EEA regulations.
The amendments to the regulations will now ensure that this becomes law. It is an important amendment also in light of Brexit, as many EEA nationals may opt to become British and will be reassured that their non-EEA family members will be allowed to make use of their free movement rights subsequently.
The Regulations will come into force on 24 July 2018.
Gherson has over 30 years of experience in assisting with various immigration and nationality matters. Should you wish to speak to a member of our team, please do not hesitate to 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.