Brexit has brought many uncertainties for many European citizens living and working in the UK regarding their and their families’ rights. The recent landmark case of Lounes C-165/16 confirmed a free movement for family members of European dual nationals, after the much-awaited consideration of the European Court of Human Rights.
Previously, the Home Office refused Mr Toufik Lounes, an overstayed Algerian citizen the right to stay in the UK and live with his dual national spouse. His wife Spanish national was naturalised as a British Citizen in 2009 and currently holds two nationalities.
Mr Lounes applied for an EEA Residence Card but was refused. Since July 2012, EEA Regulations has been updated to preclude dual EEA and British citizens from benefiting from EU law. In particular, interpretation of “EEA national” in Regulation 2 has been amended to mean: “a national of an EEA State who is not also a British citizen”.
The Home Office in effect incorporated McCarthy judgment issued in 2014 which determined that a person who holds the nationality of the host Member State and has never exercised their right of free movement and residence, does not benefit from the terms of the Free Movement Directive.
The application of the law has been challenged by Mr Lounes. On 14th November 2017, the ECJ ruled that wife had exercised her freedom of movement rights by going to and residing legally in another Member State, therefore she cannot be treated in the same way as an ordinary domestic citizen. It was stated that EU citizens should be able to continue to enjoy the right to lead a normal family life together with their family members in the host Member State after acquiring the nationality of that State. As Mr Lounes’ wife obtained citizenship as an addition to her nationality of origin, she can exercise her right to build a family life with her third-country national spouse.
The judgment will have a positive effect on a number of EEA nationals residing in the UK. Since Brexit, many EEA nationals decided to apply for British nationality, but the main concern was the consequential effect on their family members. Frequently, EEA nationals were unable to meet more prescriptive, expensive and significantly convoluted Immigration Rules to make application for their family members. It appears that now the matter has finally been clarified and dual British/EEA nationals will still be able to benefit from EEA Regulations.
The ruling has now taken place, but it is yet to be implemented. Home Office spokesperson said: “We are reviewing the judgment and carefully considering its impact.” It is yet unclear when changes set up in Lounes judgment will be implemented in the UK legislation, therefore allowing potential applicants to exercise their rights.
There are also certain limitations that need to be considered. In particular, the ruling does not guarantee family rights for those EU citizens who became a citizen of another Member State and renounce or lose their original citizenship, i.e. citizenship of the EU member state from where they had moved.
Secondly, a person granted derivative rights to stay in the UK as a family member of dual EEA/British citizen may face problems with settlement in the future. The argument is that derivative rights presented by Lounes will not count any time spent in the UK towards the acquisition of a right to reside permanently in the UK.
There is additional uncertainty on whether those rights will be available for other EU nationals after reaching a decision on Brexit in March 2019. If the consensus on free EU movement will not be reached and the freedom of movement between Britain and the EU will cease, the European nationals will not have an opportunity to bring their third-country family members under the new ruling.