Latest News Case comment: C-165/16 Toufik Lounes v Secretary of State for the Home Department Background: Under EU law, and in particular the Treaty on the Functioning of the European Union (TFEU) and the Citizens Directive (2004/38), the family members of EU nationals are entitled to accompany those exercising EU free movement rights into their host Member States, regardless of their nationality. So, for example, the Chinese wife of a German national can accompany her husband if he chooses to move to Italy. These rules have been implemented into UK domestic law for some years now. For those from outside the EU, there are significantly more barriers to joining a spouse in the UK, regardless of your nationality. Visas are normally issued on a fixed-term basis at first, and can come with restrictions such as not being able to claim benefits or apply for assistance from a local authority in the event of homelessness. You also have to show that you have enough income to support yourself. Why does the Lounes matter? The case of Lounes concerns the rights of non-EU nationals (sometimes referred to as ‘Third Country Nationals’ or ‘TCNs’) who are family members of people who hold dual nationality of the UK and another EU Member State. Many EU countries allow or recognise the idea of ‘dual nationality’, whereby one person can be a citizen of more than one country. The UK is one of them: indeed, after the result of the EU referendum there was a significant increase in the number of applications for Irish citizenship from British nationals. Following the result of the EU referendum that there has also been a spike in applications from EU nationals to acquire citizenship of the UK. This is entirely understandable given the significant uncertainty of the rights of EU nationals and their family members in a post-Brexit world. As things stand it seems to be generally accepted that the concept of ‘free movement of people’ as we currently understand it will cease to apply. Rightly or wrongly, until as recently as 2012 it was perceived that the TCN family members of UK nationals or dual citizens would have a more secure status compared to EU nationals without British citizenship. This all changed following the ECJ’s (European Court of Justice) decision in the case of C-434/09 McCarthy. That case concerned a British national who acquired Irish citizenship on the basis of her ancestry. She then attempted to use EU free movement law rights to facilitate her spouse, a Jamaican, moving to the UK. The ECJ found that EU free movement law did not apply in McCarthy because she had never exercised Treaty rights in a Member State other than her own. In other words, as she had never left the UK and lived or worked in another EU country, she couldn’t rely on EU free movement law for the purposes of family reunification. Since McCarthy, the Home Office’s position has been that upon the acquisition of British citizenship, EU free movement law ceases to apply to the British citizen, who by extension cannot rely on EU free movement law to enable TCN family members to accompany them in the UK. This is reflected in the current domestic Regulations that implement the Citizens Directive: EU nationals do not include British citizens. Facts of this case Ms García Ormazábal, a Spanish national, moved to the United Kingdom in September 1996. Following periods of study and employment, in August 2009 she became a British citizen while also retaining her Spanish nationality. Mr Lounes, an Algerian national, entered the UK in January 2010, on a six-month visitor visa. He did not extend this visa and overstayed illegally. He met Ms Ormazabal in 2013 and they were married in 2014. They continue to live together in the UK. There is therefore a key difference in Lounes compared to McCarthy, in that the dual national in Lounes had exercised EU free movement rights, whereas the dual national in McCarthy had not. Under EU law, a domestic court or tribunal can make a reference to the ECJ on a question of interpretation of EU Treaties, Regulations or Directives. The ECJ’s judgment upon referral are in the form of direct answers to the questions referred, preceded by a discussion of the relevant law surrounding the issue and a formal Opinion from the ECJ’s Advocate-General. ECJ cases are binding on EU member states – unlike judgments of the European Court of Human Rights, which, under the Human Rights Act 1998, need only be ‘taken into account’. ECJ rulings remain binding on the UK until the UK has formally left the EU, so the fact that Article 50 has been triggered does not end the ECJ’s jurisdiction. Considering the background to this case, the implications of the ECJ’s judgment in Lounes were therefore significant. Had EU nationals who had acquired British citizenship potentially risked their family members’ status in the UK? Advocate General’s Opinion When cases go before the ECJ, before the judges decide the case, an Advocate-General assists the court by offering an advisory Opinion. There are eleven Advocates-General that work with the ECJ in this function. Their Opinions are not binding on the judges, but more often than not they are followed by the court. Sometimes the court will arrive at the same conclusion as the Advocate-General but via different legal reasoning. In Lounes, the Advocate-General agreed with the Home Office’s interpretation of the Citizens Directive – in that Ms Ormazabal could no longer be considered a ‘beneficiary’ under Article 3 upon acquiring British nationality. However, the Advocate-General arrived at a different conclusion with regards to the Treaty on the Functioning of the European Union. Advocate-General Bots considered that it would be illogical for EU nationals who have exercised their free movement rights and taken genuine and positive steps to integrate into their host Member State to find that, upon acquiring the nationality of their host country, that their family rights were actually less favourable. To hold otherwise could create a deterrent for EU nationals (of any citizenship) to exercise their Treaty rights and forge strong links with their host states, and would therefore be contrary to the idea of free movement. In this situation, the TCN family members derive rights under EU law from dual-national citizens in the same way as family members of EU nationals who are not dual nationals. The situation is similar in some ways to TCNs who have a derivative right to reside as the result of being the carers of UK citizens, without whose presence the person that they look after would not be able to exercise their EU Treaty rights – so-called ‘Zambrano’ carers, after the family who brought the key case to the ECJ. Under these provisions, where a British citizen would effectively be prevented from exercising their rights under EU law if their carer (e.g. parent/guardian) had to leave the EU, their carer is entitled to remain in the UK in order to enable the British citizen to continue residing here. The ECJ’s decision The Court largely agreed with the opinion of the Advocate-General. The case of McCarthy was distinguishable because of the very different facts. In Lounes, there had been an exercise of Treaty rights, whereas in McCarthy there had not. The ECJ held that this gave Ms Ormazabal rights derived not from the Directive, but from Article 21 TFEU. The Directive ceased to apply to Ms Ormazabal once she was naturalised as a British citizen. It was noted that as a principle of international law, a country cannot refuse its own nationals the right to the enter its territory. The ECJ held that in a situation where an EU national has exercised Treaty rights and has become so integrated into their host Member State that they have acquired nationality of that state, the rights of their family members could not be any stricter than the rights afforded to family members of EU nationals under the Directive. In other words, EU nationals with dual nationality were effectively to be treated as ‘beneficiaries’ under the Citizens Directive. To hold otherwise would undermine the effectiveness of Article 21 TFEU by discouraging free movement and integration into different Member States. Comment and implications This judgment will provide a big relief to EU nationals who applied for British citizenship after Brexit. It provides security for thousands of people living in the UK who would otherwise face the same obstacles that non-EU nationals currently have to deal with, such as minimum income requirements and ‘right to rent’ rules. It will require a relatively minor amendment of the Immigration (European Economic Area) 2016 Regulations to include dual national citizens, in order to ensure that family members of UK-EU dual nationals are treated the same as family members of EU nationals without British citizenship. The status of family members of EU nationals after Brexit, whether dual citizens or otherwise, remains uncertain. It is to be hoped that this judgment will mitigate that uncertainty until at least March 2019.