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Non-EU spouse can stay after EU national becomes UK citizen, CJEU rules

14 November 2017

An EU national who exercises their right to freedom of movement by coming to the UK, and their non-EU spouse, should not enjoy reduced rights in relation to residence if they become a UK citizen compared to their previous situation, the EU Court of Justice ruled today.

Agreeing with the opinion of Advocate General Yves Bot, the court upheld the right of the Algerian husband of a Spanish woman who came to the UK in 1996 and became a British citizen in 2009, to continue to reside in the UK, despite holding that the Free Movement Directive no longer applied to their situation.

The case was brought by Toufik Lounes, an Algerian national, who overstayed illegally after coming to the UK in 2010. He began a relationship with Garcia Ormazabal in 2013 and they married in 2014. When he applied for a residence card as a family member of an EEA national, it was refused and he was served with a notice of removal in that his wife was no longer regarded as an EEA national due to her acquiring British nationality, though she also retained her Spanish nationality. The High Court in London referred the correctness of this to the Court of Justice for a ruling.

In its judgment the court noted first that the directive does not confer any autonomous right on family members of an EU citizen who are non-EU nationals, but only rights derived from the rights which the EU citizen concerned enjoys as a result of having exercised his freedom of movement. Further, it is not intended to govern the residence of an EU citizen in the member state of which they are a national, but only the conditions determining whether an EU citizen can enter and reside in other member states, and thus does not confer a derived right of residence on non-EU nationals who are family members of an EU citizen, in their own member state.

However, it ruled that if the rights conferred on EU citizens by article 21(1) of the Lisbon Treaty – in particular the right to lead a normal family life, together with their family members, in the host member state – are to be effective, citizens in a situation such as Ms Ormazabal’s, must be able to continue to enjoy that right in the host member state, after they have acquired the nationality of that state in addition to their nationality of origin and, in particular, must be able to build a family life with their third-country-national spouse, by means of the grant of a derived right of residence to that spouse.

An interpretation to the contrary would amount to treating Ms Ormazabal in the same way as a British citizen who had never left the UK, disregarding the fact that she had exercised her freedom of movement by settling there and that she had retained her nationality of origin. Moreover, it would be contrary to the logic of gradual integration in the host member state that is inherent in article 21(1) to hold that EU citizens in Ms Ormazabal ’s situation are to be deprived of the right to a normal family life in the host member state because they have sought, by becoming naturalised in that member state, to become more deeply integrated in that state.

Accordingly, a non-EU national in Mr Lounes’ situation is eligible for a derived right of residence under article 21(1), on conditions which must not be stricter than those provided for by the directive for the grant of such a right to a third country national who is a family member of an EU citizen from another member state.

Click here to access the full judgment when released.

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