On 30 May 2017, the Advocate General (AG) of the Court of Justice of the European Union, in the case of Toufik Lounes v Secretary of State for the Home Department Case C-165/16 provided a legal opinion that a non-EEA national ‘may’ be able to obtain a right of residence through an EEA citizen family member, who has obtained the citizenship of an EEA state.
It is important to note that this is an opinion only and that the full Court will consider the opinion, prior to making its own judgement.
Amendment to the EEA Regulations 2006
It is important to note, that on 16 July 2012 the UK government amended the Immigration (EEA) Regulations 2006 (the “Regulations”), to exclude EEA citizens who had subsequently become British from the Regulations- which meant that non-EEA family members of the now British citizen, could not benefit from the principle of freedom of movement as a family member.
The amendment was brought in by Theresa May – the then Home Secretary, which we recall was purely brought in as a means of placing limits on the non-EEA family members of EEA nationals, the purpose of which was to bring down migrant numbers.
The Regulations are the UK’s interpretation of the EEA Directive 2004/38/EC on the freedom of movement.
Mr Toufik Lounes is an Algerian citizen who entered the UK on a six-month visitor in 2010 and then overstayed his permission to stay.
In April 2014, Mr Lounes married Ms García Ormazábal a Spanish national, who had exercised EEA Treaty Rights and in 2009 obtained British citizenship.
Mr Lounes then applied for an EEA Residence Card to the Home Office, but was refused on the grounds, that Ms Ormazábal was no longer regarded as an EEA national, as she had become a British citizen. Mr Lounes then brought an action in the High Court of Justice. The High Court of Justice referred the matter to the Court of Justice to provide a ruling on the compatibility of the UK with EU laws.
In the AG’s opinion, there is an ‘inextricable link’ between the exercise of the rights ‘conferred’ upon Ms Ormazábal and the obtaining of her British citizenship. In other words, Ms Ormazábal only became British through her exercise of EEA Treaty Rights.
The AG accepts that by becoming British, Ms Ormazábal is no longer a ‘beneficiary’ within the meaning of the Directive and therefore, Mr Lounes cannot benefit for a ‘derived right of residence’ through her.
The AG then refers to Article 21(1) of the Treaty of the Functioning of the European Union (TFEU) and states that ‘Member States must permit EU citizens who are not their nationals to move and reside within their territory with their spouse and, possibly, certain members of their family who are not EU citizens’ and refers to the Courts case law, which ensures the ‘effectiveness’ of the article.
The AG makes the finding that although Ms Ormazábal has become British, she has ‘expressed her wish’ to live in the UK in the same way as her state of origin (Spain), through creating ties with the UK.
We should once again emphasize that this is an opinion - not a judgement and that we will have to wait until the full court makes its judgement later this year – an update will follow once it is made.
It is worthwhile noting that an EEA national can obtain permanent residence, through the exercise of an EEA Treaty Right, but also ‘indefinite leave to remain’ through the immigration rules – the distinction is important.
The opinion and the judgement to come is a follow on from Theresa May’s attempts to restrict migrant numbers, which will be in form of a judgement from a European court. Assuming Theresa May wins the forthcoming general election, will this be the type of issue that she seeks to preserve? No doubt, the negotiators from the European Union will have a position on this and it is likely to be an issue in the forthcoming negotiations on Brexit.
If you are affected by this judgement for example, by having an EEA Family Permit or Residence Card declined or, are thinking of making such an application please contact a member of our team.