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The rights of dual-British and EU nationals - referral to the Court of Justice

The High Court recently referred an important question to the Court of Justice of the European Union in R (Toufik Lounes) v Secretary of State for the Home Department [2016] EWHC 436 (Admin). The case was heard on 9 February 2016 and promulgated on 8 March 2016.

This case concerned the spouse of a Spanish national, Mrs Ormazabal, who naturalised as a British citizen in 2009 and the question of whether dual British-EU nationals and their family members can benefit under the EU law.

Regulation 2 of the EEA Regulations, as amended in July 2012, states:

“EEA national” means a national of an EEA State who is not also a British citizen”

Mrs Ormazabal’s husband, Mr Lounes, was refused a Residence Card as a Family member under the EEA Regulations.

Mrs Justice Lang referred the case to the CJEU as she determined that it was not acte clair whether the amendments to the EEA Regulations excluding dual British-EU nationals from reliance upon EU law following the McCarthy case and the refusal of the Residence Card to have the effect of precluding Mrs Ormazabal from relying on her rights as a Union citizen in the UK following naturalisation as a British citizen unlawfully restricted her right to free movement under Article 21 TFEU and Directive 2004/38.

The questions referred are as follows:

“Where a Spanish national and Union citizen:
i. moves to the United Kingdom, in the exercise of her right to free movement under Directive 2004/38/EC; and
ii. resides in the United Kingdom in the exercise of her right under Article 7 or Article 16 of Directive 2004/38/EC; and
iii. subsequently acquires British citizenship, which she holds in addition to her Spanish nationality, as a dual national; and
iv. several years after acquiring British citizenship, marries a third country national with whom she resides in the United Kingdom;
are she and her spouse both beneficiaries of Directive 2004/38/EC, within the meaning of Article 3(1), whilst she is residing in the United Kingdom, and holding both Spanish nationality and British citizenship?”

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