Dual British Nationality: a risk to your family’s freedom?

Dual British Nationality: a risk to your family’s freedom?

Introduction

On 30th May 2017 it is expected that a full sitting (a rare occurrence) of the Grand Chamber of European Court of Justice (ECJ) will reveal its judgement on the case of Lounes.

The case was referred by the High Court in March 2016, with clarity sought on whether naturalisation as a British citizen permits restrictions on the right to free movement under Treaty Articles and EU Directive(s).

The case has been heralded as a ‘milestone in the relationship between European Union law on free movement and the domestic interpretation of that law’.

Context – unlawfully resident:

Under the Directive 2004/38/EC – every citizen of the Union has a primary and individual right to move and reside freely within the territory of the Member States.

However, since 2012 following the case of McCarthy, the British Government has taken a strict approach in denying citizens, who obtain dual nationality any rights under EU law.

Simply put, the Government states that as soon as a person becomes British his or her rights under EU law are lost.

On the issue of free movement, the Government has claimed that ‘the right to move and reside freely within the territory of (EU) Member States, cannot apply to a national of the Member State where he resides’.

As such the moment a person becomes a British citizen, any family member living with them from outside the EU who was previously resident under EU law will become unlawfully resident.

How does the Case of Lounes apply?

Ms Lounes was a Spanish citizen who came to the UK exercising her rights of free movement. She eventually settled, obtained permanent residence and acquired British citizenship.

On obtaining her citizenship, she believed that her husband (Algerian national) would be permitted to remain in the UK.

Her husband applied for a residence card using her automatic right to bring a family member into the country. This was refused on the grounds that Ms Lounes could not rely on her rights, as she was foremost a British national.

What are the arguments of Lounes?

The arguments of Lounes can be briefly summarised as follows:

  1. The rights to free movement are both primary and individual right(s),
  2. The right to free movement is a fundamental one, which cannot be overruled,
  3. The right to free movement and family should be adapted to dual nationals and cannot be dismissed irrespective of nationality,
  4. There is no provision in the EU law for removal of such rights on the ground of a change of immigration status under domestic law.

What will happen next?

We will have to await the decision of the ECJ, but should the Government win:

It will mean that all EU nationals living in the UK, who have also acquired dual British nationality, will no longer be able to rely on their free movement rights after gaining British nationality as they no longer be recognised by the UK as EU citizens in that context

(Parminder Saini, counsel for Lounes).

Whilst the impact of this case may not have a future bearing on UK citizens following Brexit negotiations, its impact will have a lasting effect on EU and non-EU family members for years to come…

We at Liberty Law Solicitors are experienced immigration specialists, should you have an immigration matter, do not hesitate to contact us on 01582 459955.

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