What’S Incorrect Alongside The Uk Immigration Rules Governing The Rights Of Dual-British Too Eu Citizens? Comment On The Lounes Reference.
November 23, 2018
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Dr Alina Tryfonidou, Associate Professor inward European Union Law, University of Reading
Last month, the High Court of England as well as Wales decided to brand a reference to the ECJ for a preliminary ruling inward the instance of Lounes. The instance – which is currently stayed awaiting the ECJ judgment on the reference – involves a duet comprised of a dual-British as well as Castilian national as well as a third-country national, who receive got been living together inward the UK since 2013 as well as where they directly seek to rely on the European Union costless motility rights of the old inward lodge to claim identify unit of measurement reunification rights for the latter. The query that is fundamental to the resolution of the instance is whether a Member State tin render inward its legislation that from the 2nd that a national of a Member State acquires also the nationality of the Member State to which (s)he moved inward practise of European Union costless motility rights, (s)he ceases to hold out a beneficiary of European Union costless motility rights as well as of the secondary rights attached to them, such every bit identify unit of measurement reunification rights.
Factual Background
Mr Lounes (the Claimant) is an Algerian national who entered the UK for the commencement fourth dimension inward 2010 as well as overstayed illegally. In 2013, whilst (still illegally) inward the UK, he met as well as formed a human relationship amongst Mrs Ormazabal, as well as inward 2014 the duet married inward London. Mrs Ormazabal was, originally, entirely a Castilian national. She moved to the UK inward 1996 to study as well as since 2004 she has been employed on a full-time basis. In 2009, she acquired British citizenship whilst maintaining, also, her Castilian nationality and, thus, since so she is a dual-British as well as Castilian national.
Shortly after the matrimony betwixt the Claimant as well as Mrs Ormazabal took place, the Claimant applied to the Secretary of State for the Home Department (the Defendant) for an EEA residence bill of fare every bit the husband of an EEA national who had made usage of her costless motility rights. This, however, brought the Claimant to the attending of the immigration authorities, which led to him existence served amongst a ‘Notice to a someone liable to removal’ on the Earth that he had overstayed his visa inward breach of immigration legislation, every bit good every bit a notice of a determination to take away him from the UK. In addition, the Defendant decided to spend upward to number the Claimant amongst the EEA residence bill of fare he had applied for on the Earth that the Claimant’s ‘sponsor’ (i.e. Mrs Ormazabal) ‘does non run into the Definition of an EEA national defined nether Regulation 2 of the Immigration (EEA) Regulations 2006 (as amended on sixteen July 2012) every bit she is also a British citizen’. In response, the Claimant applied for judicial review of the Defendant’s decision.
Legal Background
Under European Union law, Union citizens tin displace to and/or reside inward some other Member State, commonly this existence a Member State other than that of their nationality. This right derives from the costless motility provisions of the Treaty (Arts. 21, 45, 49, 56 TFEU), which are supplemented yesteryear pieces of secondary legislation which, inter alia, render a number of secondary rights attached to the primary costless motility rights stemming from the Treaty provisions. One such put of secondary rights are identify unit of measurement reunification rights. Family reunification rights for all Union citizens who practise costless motility rights are put downwardly inward Article 3.1 of Directive 2004/38 (also known every bit the 'citizens' Directive'), which provides that ‘This Directive shall apply to all Union citizens who displace to or reside inward a Member State other than that of which they are a national, and to their identify unit of measurement members every bit defined inward dot 2 of Article 2 who accompany or bring together them’ (emphasis added). Point 2 of Article 2 includes ‘the spouse’ inward the listing of identify unit of measurement members mentioned inward Article 3.1, whilst Recital five of the Directive notes that ‘The right of all Union citizens to displace as well as reside freely inside the territory of the Member States should, if it is to hold out exercised nether objective atmospheric condition of liberty as well as dignity, hold out also granted to their identify unit of measurement members, irrespective of nationality’ (emphasis added). Accordingly, on the facts inward Lounes, the Claimant argued that he tin rely on Directive 2004/38 to claim that he tin bring together his married adult woman – who is a Castilian national who has moved to as well as settled inward a Member State (UK) other than that of her (originally only) nationality – inward the UK, where she resides.
The national rules applicable inward this instance are the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003), every bit these receive got been amended inward 2012, yesteryear SI 2012/1547 as well as SI 2012/2560. The Definition of the diverse price used inward them is provided inward department 2(1) of the Regulations. Instead of ‘Union citizen’, the Regulations usage the (broader) term ‘EEA national’ when referring to the beneficiaries of costless motility rights which are derived from European Union police as well as tin hold out exercised inward the UK. The master version of the Regulations provided that ‘“EEA national” agency a national of an EEA State’. The 2012 amendments amended this definition, which – next the amendment made yesteryear SI 2012/2560 – directly reads ‘“EEA national” agency a national of an EEA State who is non also a British citizen’ (emphasis added).
The outcome of the higher upward amendments is that a British national cannot rely inward the UK on the rights stemming from the European Union costless motility provisions (including identify unit of measurement reunification rights), as well as this is so fifty-fifty when that someone is a dual British-EU national who has made usage of his costless motility rights. On the facts inward the Lounes instance this meant – every bit the referring courtroom noted that it was submitted yesteryear the Defendant – that ‘after naturalisation every bit a British citizen, Mrs Ormazabal could no longer practise whatever European Union right to costless motility inside the UK despite her Castilian nationality as well as Union citizenship. In that respect, she was inward the same seat every bit other British citizens living inward the UK who did non receive got dual nationality. She could, of course, practise her European Union right to costless motility inward other European Union countries. It followed that the Claimant’s application to reside inward the UK had to hold out determined according to UK domestic immigration police only; he could non rely upon the Directive as well as the EEA Regulations 2006’.
The Reference for a Preliminary Ruling
The query referred to the ECJ is the following:
‘Where a Castilian national as well as Union citizen:
i) moves to the United Kingdom, inward the practise of her right to costless motility nether Directive 2004/38/EC; and
ii) resides inward the Great Britain inward the practise of her right nether Article vii or Article sixteen of Directive 2004/38/EC; and
iii) afterward acquires British citizenship, which she holds inward add-on to her Castilian nationality, every bit a dual national; and
iv) several years after acquiring British citizenship, marries a 3rd province national amongst whom she resides inward the United Kingdom;
are she as well as her husband both beneficiaries of Directive 2004/38, inside the pregnant of Article 3(1), whilst she is residing inward the United Kingdom, as well as belongings both Castilian nationality as well as British citizenship?’
The national court, therefore, asks, inward essence, whether the amendments made inward the 2006 Regulations which preclude Union citizens who, also, instruct British citizenship, from continuing to do goodness from the rights stemming from the European Union costless motility provisions, are opposite to Article 21 TFEU as well as Directive 2004/38.
The referring courtroom inward its judgment observed that this is a seek out instance as well as that similar claims receive got been stayed awaiting the outcome of this case.
Comments: What must the ECJ rule?
The Explanatory Notes to the amending instruments dot out that the amendments made to the 2006 Regulations described earlier, were made inward lodge to give outcome to the ECJ judgment inward Case C-434/09 McCarthy. However – as well as this is the of import query – are the Regulations (as amended) a right implementation of the ECJ’s judgment inward McCarthy?
McCarthy involved a claim for identify unit of measurement reunification rights inward the UK yesteryear a dual UK as well as Irish Gaelic national who was born – as well as had e'er lived – inward that Member State. The entirely ‘external’ chemical constituent inward the instance was the fact that Mrs McCarthy was a national of 2 Member States. The Court found that the province of affairs was purely internal to the UK and, thus, was non covered yesteryear Article 21 TFEU, since it involved a Union citizen who had never exercised costless motility rights as well as who had e'er resided inward a Member State of which she is a national, where she was claiming identify unit of measurement reunification rights. This indicates that the mere fact that someone holds the nationality of 2 Member States does non suffice for bringing that someone inside the compass of the costless motility provisions of the Treaty, in the absence of the practise of costless motility rights. The Court inward McCarthy distinguished the facts inward that instance from those inward Garcia Avello which, according to it, involved dual Member State nationals residing inward i of their States of nationality who had never exercised costless motility rights but whose province of affairs was non purely internal to a Member State because the contested mensurate could potentially deter the practise of such rights.
The Court’s approach inward the higher upward cases demonstrates that what makes a province of affairs purely internal to a Member State is non the mere fact that a Union citizen pursues an economical activity and/or resides inward a Member States the nationality of which he possesses but rather the fact that the rights stemming from the costless motility provisions receive got non been exercised and/or are non going to hold out impeded every bit a resultant of the contested measure. This is, inward fact, also exemplified inward an older instance (Scholz) where the Court held that a German linguistic communication national who – having exercised costless motility rights – settled inward Italy, was silent covered yesteryear (what is now) Article 45 TFEU as well as could rely on that provision against Italy, fifty-fifty after becoming naturalised every bit an Italian national.
Accordingly, inward all cases, the of import query is non whether a Union citizen seeks to practise rights deriving from the European Union costless motility provisions inward her Member State of nationality, but rather, whether in that location is a sufficient cross-border element. And although the Court’s approach inward cases such every bit Angonese, Carpenter, Schempp as well as Ruiz Zambrano (all of which involved Union citizens seeking to enforce their European Union rights inward their Member State of (sole) nationality) demonstrates that it is increasingly tardily to institute such a cross-border chemical constituent on the facts of a case, in that location are silent instances where such a link fails to hold out established, obvious, recent, examples of this existence Iida (which involved a just hypothetical obstacle to costless movement[1]) every bit good every bit McCarthy itself.
In McCarthy, it was clear that costless motility rights were neither exercised nor were they going to hold out impeded every bit a resultant of the contested measure. The province of affairs inward Lounes, however, is fundamentally different, because it does involve the practise of costless motility rights (the master motility of Mrs Ormazabal from Kingdom of Spain to the UK) and the contested national mensurate (i.e. the removal of the Claimant from the UK) is capable of impeding the practise of those rights.[2]
However, which right just which is stemming from the costless motility provisions tin hold out impeded every bit a resultant of the refusal of identify unit of measurement reunification rights inward a province of affairs such every bit that pertaining inward Lounes?
The aim of the costless motility provisions is, primarily, to protect the costless motility rights of Union citizens. These have, always, been read every bit including the right to displace to some other Member State to take-up an economical activity and/or residence there; inward other words, it is clear that these provisions comprehend the initial right of a Union citizen to displace to, as well as settle in, the territory of some other Member State. However, inward to a greater extent than recent case-law, the Court has made it clear that the costless motility provisions, also, require Member States non to human activeness inward a way which discourages Union citizens from continuing to practise the costless motility (see S & G case) and/or residence (see Metock case) rights they derive from the European Union costless motility provisions: inward other words, Member State measures total to a restriction caught yesteryear the European Union costless motility provisions non entirely when they foreclose a Union citizen from exercising his/her initial right to displace to some other Member State and/or to take-up residence there, but also, if they discourage a Union citizen from continuing to reside inward the territory of the host State or, to a greater extent than broadly, from continuing to practise the rights stemming from the costless motility provisions (e.g. to perish on to pursue an economical activity inward a cross-border context).
Hence, inward a province of affairs similar that inward Lounes, where the initial rights to costless motility as well as taking-up of residence inward the host State had already been exercised yesteryear Mrs Ormazabal as well as would non hold out impeded every bit a resultant of the contested measure, a breach of Article 21 TFEU can, still, hold out established, since the contested mensurate tin discourage her from continuing to reside inward the UK: every bit noted inward Metock, Union citizens are liable to hold out discouraged from continuing to reside inward the territory of the host Member State if they are refused the right to hold out joined or accompanied yesteryear their unopen identify unit of measurement members inward its territory.
Legislation such every bit the 2006 Regulations which spend upward identify unit of measurement reunification rights to all Union citizens who concord (or, also, hold) British nationality – irrespective of whether in that location is a cross-border chemical constituent on the facts of the instance – amounts, therefore, to a restriction on the practise of the rights stemming from the costless motility provisions. Such a restriction is, clearly, unjustifiable nether the populace policy derogation from the costless motility provisions, every bit it is an en bloc refusal of costless motility rights to Union citizens as well as their identify unit of measurement members, as well as is, thus, non based on the personal deport of the persons involved inward a specific case, which is required yesteryear Article 27(2) of Directive 2004/38.
Accordingly, the ECJ must dominion that legislation such every bit the 2006 Regulations is inward breach of the European Union costless motility provisions (and of Directive 2004/38). The UK volition entirely correctly implement McCarthy if it amends its legislation to render that persons who concord dual nationality of the UK as well as some other Member State are non beneficiaries of the rights stemming from the European Union costless motility provisions (and the secondary legislation implementing them) inward the UK only if they receive got never exercised costless motility rights (as established inward McCarthy) and/or if the rights stemming from the costless motility provisions volition non hold out impeded every bit a resultant of the contested measure (as established inward Garcia Avello).
Barnard & Peers: chapter 13
JHA4: chapter I:6
[1] For a tidings of the distinction betwixt potential obstacles as well as purely hypothetical obstacles to the practise of costless motility rights for the role of establishing a cross-border chemical constituent consider A. Tryfonidou, ‘(Further) Signs of a Turn of the Tide inward the CJEU’s Citizenship Jurisprudence, Case C-40/11 Iida, Judgment of 8 Nov 2012, non yet reported’ (2013) 20(2) MJ 302, pp. 307-313.
[2] As Advocate General Tesauro noted inward his Opinion inward Singh, para. 5: ‘the elementary practise of the right of costless motility inside the Community is non inward itself sufficient to select a item put of circumstances inside the compass of Community law; in that location must hold out some connecting cistron betwixt the practise of the right of costless motility as well as the right relied on yesteryear the individual’. In other words, inward lodge for a breach of the costless motility provisions to hold out established, it does non suffice that costless motility rights receive got been exercised, but it must hold out proved, inward addition, that such rights are impeded every bit a resultant of the contested measure. This is also evident yesteryear the fact that inward some cases (e.g. Cowan) the Court read the costless motility provisions together amongst the prohibition of discrimination put downwardly inward Article xviii TFEU as well as (only) found a breach of the latter, where a someone who had exercised costless motility rights was discriminated against inward the host State but the discrimination complained of was non capable of impeding the practise of those rights.