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The Rights of Family Members of Dual EEA – UK Nationals following Naturalisation The AG’s Opinion in Lounes

The important High Court referral in Toufik Lounes, discussed here, referred the following questions to the Court of Justice:

“Where a Spanish national and Union citizen:

i. moves to the United Kingdom, in the exercise of her right to free movement under Directive 2004/38/EC; and
ii. resides in the United Kingdom in the exercise of her right under Article 7 or Article 16 of Directive 2004/38/EC; and
iii. subsequently acquires British citizenship, which she holds in addition to her Spanish nationality, as a dual national; and
iv. 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/EC, within the meaning of Article 3(1), whilst she is residing in the United Kingdom, and holding both Spanish nationality and British citizenship?”

These questions are hugely important as the definition of ‘EEA national’ in the Immigration (European Economic Area) Regulations 2016 excludes EEA nationals who are also British. This is the case for all apart from those falling within the transitional provisions (see here). The Court of Justice has not yet given its determination, but the Opinion of Advocate General Bot was delivered on 30 May 2017.

The Advocate General did not view the situation as one which was purely internal to UK law, at paragraph 36 he stated:

“the connecting factor with EU law, and with the provisions of Directive 2004/38 in particular, is obvious”

and proceeded to set out how Ms García Ormazábal acquired the right of permanent residence and later British citizenship in accordance with national law.

The AG stated at paragraph 38:

“I consider that the United Kingdom may not now, solely on the grounds that she has been naturalised in that State, disregard the rights which she has exercised on the basis of EU secondary law, just as it may not disregard the fact that she has retained her nationality of origin, that is, Spanish nationality.”

Considering Directive 2004/38 first, the AG identified that being a Union citizen brought Ms García Ormazábal within the scope of the Directive, but that Article 3(1) limits the scope:… READ FULL ARTICLE