Advocate General Bot has released his Opinion on a test case regarding the freedom of movement rights of dual citizens resident in the UK under EU law, after a reference for a preliminary ruling from the High Court in Lounes v SS of the Home Department  EWCH 436 (Admin).
Ms Ormazábal, a Spanish citizen, moved to the UK in 1996 and became a naturalised British citizen in 2009. Her husband Mr Lounes (the Claimant) is an Algerian national who entered the UK on a 6-month visitor's visa in 2010, and overstayed. They married in 2013. Mr Lounes applied for a residence card as the spouse of an EEA national, and was promptly served with a refusal, as well as a notice of the decision to remove him from the UK, on the grounds that he had overstayed illegally.
The question is whether an EU national who has become a naturalised British citizen can still rely on her freedom of movement rights for the benefit of her spouse, a third-country national.
Freedom of Movement Framework:
Under EU law, specifically Article 21(1) Treaty on the Functioning of the European Union ('TFEU'), every EU citizen shall have the right to move and reside freely within the territory of the Member States.
Directive 2004/38 lays down Union citizens' right to permanent residence in the territory of Member States, and this applies also to their spouses under 2(2) of that Directive. Under 3(1), it applies 'to Union citizens who move or reside in Member States other than that of which they are a national'.
This Directive was transposed into UK law under the Immigration (European Economic Area) Regulations 2006. These Regulations use the term 'EEA national' instead of 'Union citizen', defined in regulation 2(1), and a statutory instrument amended this definition in 2012 so that it now means 'a national of an EEA state who is not also a UK national.'
This is problematic for dual citizens, who could no longer rely on their rights under these Regulations. British citizens could not rely on them either, because the UK is excluded from the definition of an EEA state. The High Court felt that this provision was not acte clair and was dubious about whether the amendment to the Regulation unlawfully restricted freedom of movement rights, and so asked the CJEU for a preliminary ruling.
In AG Bot's Opinion…
Firstly, AG Bot is clear that, despite the UK government's submissions, the issue is not purely domestic merely because Ms Ormazábal is now a British national. She, and dual citizens like her, who stand to lose their EU rights by becoming naturalised British citizens, fall within the ambit of EU law. It is also settled case law that there is no autonomous right for the third party national, in this case Mr Lounes: the right exists to ensure that there is no restriction on a Union citizen's ability to exercise their right to settle in a Member State.
As for Directive 2006/38, in AG Bot's Opinion Article 3(1) is absolutely clear that the beneficiaries of the Directive are meant to preclude nationals of the Member State in question, and therefore Ms Ormazábal should not have been able to rely on the Directive from the moment she acquired British nationality.
AG Bot acknowledges that this is paradoxical: acquisition of nationality is part of a further integration into the Member State, which is the aim of the Directive, but at the same time alters the citizen's legal status to preclude them from benefiting from the Directive [at 61]. But any alternative interpretation would be a stretch, given the clarity of the literal meaning of the provision.
That said, AG Bot is of the opinion that although third party nationals like Mr Lounes aren't entitled to residence on the sole grounds of Directive 2004/38, they should still be able to obtain a derived right of residence under the case law of 21(1) TFEU. This is given a dynamic interpretation, and the provisions of the Directive would be applied by analogy [see 72]. The Court prohibits, it is stressed, any prohibition on the rights to free movement.
The Grand Chamber judgment will follow later in June, delivered by 15 judges, so look out for that. It will be an important test case for EU citizens who are deciding the best way to settle in Britain after Brexit, and whether obtaining British citizenship will be the best way to do that. See more in the Guardian.