This is a preliminary ruling by the Court of Justice of the European Union concerning the interpretation of Directive 2004/38/EC of the European Parliament on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.
Brief facts and chronology
The Applicant, Mr Lounes, is an Algerian national married to Ms Ormazabal, a Spanish national who first entered the United Kingdom in September 1996. Ms Ormazabal naturalised as a British citizen on 12/08/09 while also retaining her Spanish nationality. The Applicant first met Ms Ormazabel in 2013 and married her in a religious ceremony on 01/01/14 and in a civil ceremony on 16/05/14.
The Applicant applied for a residence card as the family member of an EEA national on 15/04/14. This application was refused on 22/05/14 by the Secretary of State for the Home Department (SSHD) on the basis that Ms Ormazabal was no longer regarded as an EEA national because she had become a British Citizen. The SSHD relied on the amendment of Regulation 2 of the EEA Regulations 2006 by EEA Regulations 2012/1547 and 2012/2560 to support her decision. The relevant Regulation reads:
2.—(1) In these Regulations –
“EEA national” means a national of an EEA State who is not also a British citizen.
The Applicant appealed the decision to the Administrative Court which expressed doubts as to the compatibility of the decision and Regulation 2, as amended with Article 21 of the Treaty on the Functioning of the European Union (TFEU) and Article 3(1) of Directive 2004/38.
Article 21(1) TFEU provides:
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.
Article 3(1) of Directive 2004/38 provides:
“This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.”
The Administrative Court stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling:
‘Where a Spanish national and Union citizen:
moves to the United Kingdom, in the exercise of her right to free movement under Directive [2004/38]; and
resides in the United Kingdom in the exercise of her right under Article 7 or Article 16 of Directive [2004/38]; and
subsequently acquires British citizenship, which she holds in addition to her Spanish nationality, as a dual national; and
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], within the meaning of Article 3(1), whilst she is residing in the United Kingdom, and holding both Spanish nationality and British citizenship?’
Court of Justice Ruling
The Court of Justice held that the Applicant would not benefit from a derived right of residence on the basis of Directive 2004/38/EC. However, the Court found that the situation of a national of one Member State, who has exercised her freedom of movement to move and reside in another Member State, cannot be treated in the same way as a domestic case (a citizen of the state who has not exercised her freedom of movement rights) merely because the person has acquired the nationality of the host State. To hold otherwise would undermine the effectiveness of Article 21(1) TFEU by discouraging free movement and integration into a different Member State. The Court ruled that the applicant would be eligible for a derived right of residence under Article 21(1) on conditions which must not be stricter than those provided in an application for a residence card under Directive 2004/38.
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