Effect of Naturalisation of an EEA National on Family Members’ Rights
The family members of UK nationals are not ordinarily able to benefit from EU free movement law as transposed by the EEA Regulations – there are some exceptions, but the general rule is that only non-UK EU nationals can rely upon the EEA Regulations as a source of residence rights for their family members.
What, then, is the effect on their non-EU family members’ rights of residence of a UK citizen acquiring an additional EU nationality, or of a Union citizen acquiring British nationality? Do UK citizens’ family members become eligible for EEA Residence Cards? Are the family members of the Union citizen who naturalised as British able to continue living in accordance with the EEA Regulations with EEA Residence Cards?
Dual nationality: UK plus another EEA member state
The CJEU considered the effect of acquisition of dual nationality within the UK in the well-known Case C-434/09 McCarthy, which is not to be confused with the more recent, and unrelated, Case C-202/13 McCarthy decision concerning EEA Residence Permits and Residence Cards. The relevant McCarthy decision concerned the Jamaican husband of a British-Irish dual citizen who was refused a right of residence within the UK.
Mrs McCarthy was a British citizen living within the UK, and, following her marriage to a Jamaican national, acquired Irish nationality. Mrs McCarthy was not (and had not been) working/self-employed or self-sufficient, she was in receipt of State benefits. The Home Office refused to find that Mrs McCarthy was a qualified person for the purposes of the EEA Regulations. However, as a dual citizen, regardless of her new status as an Irish national, Mrs McCarthy’s residence in the UK was lawful due to her being British. The newly acquired Irish nationality did not provide a cross-border link to trigger residence rights as an EU citizen (and corresponding rights for her Jamaican husband) as her residence had never been on the basis of EU law.
The EEA Regulations which transpose Directive 2004/38 define “EEA national” in Regulation 2as “a national of an EEA Statewho is not also a British citizen”. This is in line with the approach of the CJEU in McCarthy in terms of the outcome of this case, but where there was an economically active UK/EU citizen (and hence eligible for qualified person status) the reasons for the negative outcome would be more difficult to justify.
If Mrs McCarthy had renounced her British citizenship (making her solely Irish), then she would have been eligible to be considered under the EEA Regulations. However, to be a qualified person for the purposes of the Regulations, she would have had to work or be self-employed or self-sufficient, etc. in accordance with Regulation 6.
Dual nationality: Nationality of a (non UK) Member State plus acquired British citizenship
The question of impact on TCN family members seems entirely different where the dual national is a non-UK EEA national who acquires British citizenship (following the acquisition of Permanent Residence), and their British citizenship is in addition to their pre-existing EU citizenship.
Directive 2004/38 and the EEA Regulations do not specifically consider this eventuality, though the Regulations would exclude such a dual national from relying upon its provisions (Regulation 2).
No CJEU case-law has considered the effect of naturalisation with the citizenship of the host state where the Union citizen has obtained the right of permanent residence and is thus not required to exercise Treaty rights within the host Member State.
Logically, the family members of an EEA national residing legally in the UK should not lose their status as family members of the EEA national once that EEA national becomes British in addition to holding their original nationality – the purpose of enabling family members to reside in another Member State with a Union citizen (to encourage integration) does not vanish if the Union citizen exercising Treaty rights becomes eligible for and in fact gains the nationality of the Member State in which they reside. Member States are in charge of their own nationality laws, their citizens are also automatically Union citizens (Article 20 TFEU).
If the dual EU-UK national were automatically excluded from benefiting under the EEA Regulations in line with the interpretation of EEA National in Regulation 2, then this defeats the integrationist logic of the right of permanent residence, and does not seem to be in accordance with the reasoning behind the McCarthy decision – at paragraph 39, the Court stated “…in so far as the Union citizen concerned has never exercised his right of free movement and has always resided in a Member State of which he is a national, that citizen is not covered by the concept of ‘beneficiary’ for the purposes of Article 3(1) of Directive 2004/38, so that that directive is not applicable to him.” The Court did not say that Union citizens who exercise their rights of free movement but become nationals of the host state are no longer beneficiaries.
There may need to be references to the CJEU in order to clarify the rights of dual nationals and the rights of family members following the naturalisation of their Union citizen family member, as currently the law is unclear, and where there is exercise of free movement rights, dual nationality is likely to become increasingly common. It would be a poor side effect of free movement if the exercise of one’s rights and integration into a host state meant that your family members lost their ability to reside with you under EU law.