In this judgment, the CJEU has embraced AG Bot’s opinion that EU law does not take away with one hand that which it has given with the other. The outcome means that a non-EU national is able to benefit from a right of residence in the member state where his EU citizen family member resided before acquiring its nationality in addition to her original nationality. The conditions governing the grant of the said right of residence must not be stricter than those set out in the Citizens’ Directive (2004/38/EC). Toufik Lounes is Algerian. He entered the UK as a visitor on a six-month visa in January 2010 and overstayed illegally. Lounes formed a relationship with Perla Nerea García Ormazábal (Mrs Lounes) in 2013. Thereafter, in January 2014, they entered into an Islamic marriage. A civil ceremony took place in May 2014. Shortly before that, Mr Lounes was notified of his liability to removal as an overstayer and a removal decision was served on him. A month earlier, he had applied for an EEA residence card on the basis of his marriage. Mrs Lounes moved from Spain to the UK to study English in 1996. She attended university in the UK and after receiving an undergraduate degree in applied computing she undertook professional training and obtained full-time work in London at the Turkish Embassy.
She resided in the UK in the exercise of her rights under the Directive. In August 2009, she became a naturalised British citizen and acquired a British passport. Mr Lounes was refused an EEA residence card because of his wife’s dual nationality. In McCarthy (C‑434/09, EU:C:2011:277), the CJEU held that the Directive does not apply to an EU citizen who had never exercised his right of free movement, had always resided in the member state of his nationality and was, additionally, a national of another member state. Lang J thought it was unclear whether the amendments to the definition of “EEA national” unlawfully restricted her right to free movement under article 21 TFEU and the Directive. Therefore, taking account of Mrs Lounes’s specific history, her Ladyship queried the compatibility of UK legislation with EU law and referred the following of question to the CJEU: Are she and her spouse both beneficiaries of the Directive, within the meaning of article 3(1), whilst she is residing in the UK, and holding both Spanish nationality and British citizenship? Continue reading