CJEU in Lounes finds EU nationals retain free movement rights after becoming British
The important High Court referral in Toufik Lounes, discussed here, was decided on 14 November 2017 by the Grand Chamber of the Court of Justice. The determination can be found here.
The question to be addressed was what the rights of EU family members were, where the EU national had naturalised and gained British citizenship.
Court’s determination
As a preliminary matter, the Court observes that the Citizens’ Directive does not confer any autonomous right on family members of an EU citizen who are non-EU nationals, but only rights derived from the rights which the EU citizen concerned enjoys as a result of having exercised his freedom of movement. The Court was in agreeance with Advocate General Bot (discussed here) that the scope of the Directive was only in relation to a Union citizen in a Member State other than in their own country. (Paras 31-36)
This was emphasised in paragraph 37:
“since, under a principle of international law, a Member State cannot refuse its own nationals the right to enter its territory and remain there and since those nationals thus enjoy an unconditional right of residence there, Directive 2004/38 is not intended to govern the residence of a Union citizen in the Member State of which he is a national.”
The Court then considered whether any rights were derived from Article 21 TFEU, the text of which is as follows:
Article 21
1. 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.
…
The Court’s findings were that:
52. The rights which nationals of Member States enjoy under that provision include the right to lead a normal family life, together with their family members, in the host Member State (see, by analogy, judgment of 25 July 2008, Metock and Others, C‑127/08, EU:C:2008:449, paragraph 62).
53. A national of one Member State who has moved to and resides in another Member State cannot be denied that right merely because he subsequently acquires the nationality of the second Member State in addition to his nationality of origin, otherwise the effectiveness of Article 21(1) TFEU would be undermined.
54. In the first place, denying him that right would amount to treating him in the same way as a citizen of the host Member State who has never left that State, disregarding the fact that the national concerned has exercised his freedom of movement by settling in the host Member State and that he has retained his nationality of origin.
55. A Member State cannot restrict the effects that follow from holding the nationality of another Member State, in particular the rights which are attendant thereon under EU law and which are triggered by a citizen exercising his freedom of movement.
56. In the second place, the rights conferred on a Union citizen by Article 21(1) TFEU, including the derived rights enjoyed by his family members, are intended, amongst other things, to promote the gradual integration of the Union citizen concerned in the society of the host Member State.
57. Union citizens, such as Ms Ormazabal, who, after moving, in the exercise of their freedom of movement, to the host Member State and residing there for a number of years pursuant to and in accordance with Article 7(1) or Article 16(1) of Directive 2004/38, acquire the nationality of that Member State, intend to become permanently integrated in that State.
58. As is stated, in essence, by the Advocate General in point 86 of his Opinion, it would be contrary to the underlying logic of gradual integration that informs Article 21(1) TFEU to hold that such citizens, who have acquired rights under that provision as a result of having exercised their freedom of movement, must forego those rights –– in particular the right to family life in the host Member State –– because they have sought, by becoming naturalised in that Member State, to become more deeply integrated in the society of that State. (emphasis added)
The Court then goes on to set out exactly the rights to which EU-British nationals and their family members are entitled:
60. It follows from the foregoing that, if the rights conferred on Union citizens by Article 21(1) TFEU are to be effective, citizens… 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
61. The conditions for granting that derived right of residence must not be stricter than those provided for by Directive 2004/38 for the grant of a derived right of residence to a third-country national who is a family member of a Union citizen who has exercised his right of freedom of movement by settling in a Member State other than that of which he is a national. Even though Directive 2004/38 does not cover a situation such as that mentioned in the preceding paragraph of this judgment, it must be applied, by analogy, to that situation…
Impact
The conditions for the grant of that right of residence must not be stricter than those laid down by the free movement directive.
The UK’s interpretation of the definition of EEA national in Regulation 2 of the Regulations, which excludes dual EEA-UK nationals, is thus not incorrect only in so far as the Regulations transpose the Directive. It remains to be seen how Lounes will be reflected in the UK – whether the Regulations will be amended to reflect this clarification of EU law, or whether some other instrument will ensure that the rights of the family members of EU-British nationals are protected.
Lounes means that many people who did not fall under the restrictive transitional provisionsfollowing the amendment in 2012 are now eligible to make applications.
The potential impact of this case in relation to ‘derived rights’ is potentially huge. Derived rights in this instance cannot be more restrictive than those under Directive 2004/38, which, in this writer’s view, must also apply to permanent residence applications.
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