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CJEU in Lounes finds EU nationals retain free movement rights after becoming British

23rd Nov, 2017 / Legal & Law Firm, News

The important High Court referral in Toufik Lounes, discussed here, was decided on 14 November 2017 by the Grand Chamber of the Court of Justice. The determination can be found here.

The question to be addressed was what the rights of EU family members were, where the EU national had naturalised and gained British citizenship.

Court’s determination

As a preliminary matter, the Court observes that the Citizens’ 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. The Court was in agreeance with Advocate General Bot (discussed here) that the scope of the Directive was only in relation to a Union citizen in a Member State other than in their own country. (Paras 31-36)

This was emphasised in paragraph 37:

“since, under a principle of international law, a Member State cannot refuse its own nationals the right to enter its territory and remain there and since those nationals thus enjoy an unconditional right of residence there, Directive 2004/38 is not intended to govern the residence of a Union citizen in the Member State of which he is a national.”

The Court then considered whether any rights were derived from Article 21 TFEU, the text of which is as follows:

Article 21

  1. 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.

The Court’s findings were that:

  1. The rights which nationals of Member States enjoy under that provision include the right to lead a normal family life, together with their family members, in the host Member State (see, by analogy, judgment of 25 July 2008, Metock and Others, C‑127/08, EU:C:2008:449, paragraph 62).
  2. A national of one Member State who has moved to and resides in another Member State cannot be denied that right merely because he subsequently acquires the nationality of the second Member State in addition to his nationality of origin, otherwise the effectiveness of Article 21(1) TFEU would be undermined.
  3. In the first place, denying him that right would amount to treating him in the same way as a citizen of the host Member State who has never left that State, disregarding the fact that the national concerned has exercised his freedom of movement by settling in the host Member State and that he has retained his nationality of origin.
  4. A Member State cannot restrict the effects that follow from holding the nationality of another Member State, in particular the rights which are attendant thereon under EU law and which are triggered by a citizen exercising his freedom of movement…. READ MORE

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