Just because your EU spouse has British nationality does not mean that you as a foreign partner /spouse cannot benefit. An EU citizen who moves for example to the UK, a Member State, and acquires British nationality here, does, in fact, retain family reunion rights under EU law, to allow his spouse being a non-EU national to benefit under EU law and obtain residency.
The judgement in the matter of Toufik Lounes v SSHD C- 165/16, EU; C 2017: 862 has made it clear, that contrary to popular belief, an EU citizen who moves to another Member State and acquires the nationality of that Member State still retains family reunion rights to enable, for example, his / her spouse or partner to benefit under such rights. This is provided that the EU national retains that original nationality, and had at some stage during the currency of his /her stay in the UK been exercising Treaty rights, for example of employment or self- employment under his / her original Member State’s nationality.
The facts of Lounes
Garcia Ormazabal, a Spanish national, (hereinafter referred to as Garcia for short), moved to the UK from Spain to study in 1996 and has lived here ever since. She held a Spanish passport when she was in the UK. She worked in the UK as a Spanish national, therefore exercising Treaty rights of work here, and in due course became a British citizen by naturalization after obtaining a permanent residence card, but retaining her Spanish nationality at all times.
In 2014 Garcia married an Algerian national, Toufik Lounes, who was living in the UK illegally having overstayed a visit visa.
Mr. Lounes applied to the Home Office for a residence card under the EEA regulations 2006. His application was refused in May 2014 on the grounds that Garcia did not meet the definition of an EEA national under regulation 2 of the EEA regulations 2006 because she was a British citizen.
In McCarthy (C- 434/09), the Court of Justice ruled that Directive 2004/38 was not applicable to someone who is a national of two EU member states but had never exercised her right of free movement because she had always resided in the one-member state of which he or she was a national. For example, an Irish national entitled to Irish nationality, either holding an Irish passport or not, (entitled to it), but in possession of a British passport living and working in the UK at all times as a British citizen. Regulation 2 of the EEA regulations 2006 was amended in 2012 in the light of this judgment to read EEA national means a national of an EEA state who is not a British citizen. The same wording appears in relation to the 2016 regulations.
Mr. Lounes appealed. In 2016 the case was referred by the High Court to the CJEU to determine whether Regulation 2 was compatible with directive 2004/38.
The advocate general’s opinion was published on 30 May 2017. He took the view that Garcia and Mr. Lounes did not benefit from Directive 2004/38, but that Mr. Lounes could derive a right of residence through Article 21(1) of the Treaty on the Functioning of the European Union (TFEU).
Article 21 of the TEFU, confers the right of free movement on EU citizens. It states 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.
In this particular case, Garcia’s situation was different to that of a dual national who had never exercised freedom of movement rights. Garcia had done so. Therefore, it was held that she should not be denied her right to lead a normal life just because she had acquired the nationality of the Member State to which she had moved.
This was not a situation whereby Miss Garcia had for example never held a Spanish passport but was entitled to it, or had held one but never used it, instead using her British nationality to live and work in the UK. She had exercise Treaty rights of work in the UK as a Spanish national and then had gone to acquire the nationality of the Member State, here British nationality .
Therefore, in summary, the situation is as follows: – EU free movement law is intended to promote not only free movement between the Member States but also the gradual integration into the society of the host member state of EU citizens who have exercised that right. Becoming naturalized into the host member state is a means of becoming permanently integrated into the society of the home state. Removing family reunion rights will hinder and sometimes cease the efforts to become integrated, contrary to the intention behind EU free movement law, thus defeating the whole purpose of integration.
In conclusion therefore even though an EU citizen who becomes naturalized British citizen loses their family reunion rights under Directive 2004/38, in practical reality their family members derive equivalent rights from Article 21 (1) TFEU.
Dr. Bernard Andonian
GULBENKIAN ANDONIAN SOLICITORS