Part 2 – ‘Dual Nationality – A Continued Right to Family Life’
We wrote last week regarding the case of ‘Lounes’ which was referred by the High Court to the European Court of Justice (ECJ) in March 2016.
The case focused on whether the UK Government was permitted to consider Ms Lounes as no longer a European Union (EU) citizen, because she acquired British nationality.
If this position by the Home Office was accepted by the ECJ, it would mean that ‘all EU nationals living in the UK, who have acquired dual British nationality, would no longer be able to rely on their free movement rights, as they would no longer be recognised by the UK as EU citizens’…
Please read the previous full article here [Part 1: ‘Dual Nationality – A Risk to your Family’s Freedom’].
As stated in our previous article, an early judgement was expected around 30th May 2017.
The Advocate General (AG) has subsequently released his full opinion (here) on the case.
Although the AG opinion is non-binding, both the AG and ECJ agree with each other in the majority of cases, so it is a major indicator of what is yet to come from the ECJ’s final judgement.
What did the Advocate General have to say?
The AG stated that Ms Lounes ‘legal situation was profoundly altered by her acquisition of British nationality’ and agreed that she no longer fell within the definition of a ‘beneficiary’ (entitled) within the meaning of the free movement Directive.
Under these circumstances, it could be argued that Ms Loune’s husband does not have a derived right of residence under the Directive.
However, the ‘Right to Family’ under Article 21(1) Treaty on the Functioning of the European Union (TFEU) still remains active in law.
As such the Article ‘demands that EU citizens should be able to continue the family life they have until then led with their spouse in the Member State whose nationality they have acquired’
The opinion of the AG concludes:
‘The conditions for granting a derived right of residence to a third-country national (non-EU), a member of the family of an EU citizen, should not in principle be stricter than those laid down by the directive’.
What does this all mean?
The opinion has highlighted that EU law cannot be overruled in favour of domestic rules. In essence EU law still trumps UK law and the Home Office must continue to take heed of this (despite impending Brexit negotiations).
Secondly, the opinion has confirmed that Member States are obliged to permit EU citizens who are not their nationals to move and reside with their respective territory under the Directive. This extends to certain family members who are not EU citizens.
It would therefore be counter-intuitive of the Directive and Treaty Articles which protect both the right to free movement and family life to be destroyed by naturalisation. This is because under EU law permanent residence is sought as a genuine means for integration for all of its citizens.
The Barrister for Ms Lounes has heralded this as a provisional victory and has stated that ‘the implication for those seeking dual nationality is that their family member’s rights are protected’.
The final judgement by the ECJ is expected in the summer.
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