EU Law and Family Unity: The Opinion in Lounes

Lounes v Secretary of State for the Home Department (C‑165/16 EU:C:2017:407) (30 May 2017)

An Algerian, Toufik Lounes entered the UK as a visitor on a six-month visa in January 2010. He overstayed illegally. He formed a relationship with Perla Nerea García Ormazábal in 2013. Thereafter they entered into an Islamic marriage in January 2014. A civil ceremony took place in May 2014 shortly before which Lounes was notified of his liability to removal as an overstayer and a removal decision was served on him. A month earlier, an application for an EEA residence card had been made on the basis of the couple’s marriage. García Ormazábal 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. In August 2009, she became a naturalised British citizen and acquired a British passport. Lounes was refused an EEA residence card because of his wife’s dual nationality. In McCarthy (C‑434/09), dubbed “hard to defend” by Professor Peers, the CJEU held that Directive 2004/38/EC 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.

In the present proceedings it is undisputed that before becoming British, García Ormazábal exercised her free movement rights and, as a Spanish national, acquired a right of residence in the UK under the directive. The issue was whether an EU citizen such as García Ormazábal, who had exercised her rights of free movement and residence in accordance with the directive and then obtained the host member state’s nationality, may nevertheless rely, for her and/or for her non-EU spouse’s benefit, upon the rights and freedoms conferred by the directive in the light of its scope ratione personae (“by reason of the person”)? For Advocate General Bot depriving her of her EU law rights because of her naturalisation as a British citizen “would annihilate the effectiveness” of the rights derived by her from article 21(1) TFEU. In 2012, the British authorities had used the outcome in McCarthy as an excuse to amend (and re-amend) the domestic regulations transposing the directive to preclude dual EU nationals holding British citizenship from the rights conferred by the directive. This meant that, owing to her British passport, García Ormazábal no longer qualified as an EEA national despite retaining her Spanish passport.

Mrs Justice Lang

Citing cases such as Micheletti (Case C-369/90), G1 (Sudan) [2012] EWCA Civ 867 and Pham [2015] UKSC 19 (see here), the British authorities defended the legality of the domestic regulations and – making a series of points – stressed that no EU free movement imperative dictated the result that García Ormazábal should be put in a more advantageous position than any other British citizen (whose family members are subject to domestic immigration rules) and any other EU citizen (whose right of residence, even if permanent, would still be qualified).

According to the home office, EU law no longer protects a person’s right to reside in the UK upon the acquisition of British citizenship, and, instead, international and domestic law provides protection. It was equally argued that EU law does not facilitate or regulate a person’s entry and residence (nor that of his family members) any more than it does the residence of a British citizen without dual nationality. García Ormazábal and Lounes resisted the argument that they lost entitlement to the rights conferred by the directive in the UK from the date on which she was naturalised. Instead, García Ormazábal continued her “beneficiary” status within the meaning of article 3(1) of the directive, with the result that she and the family member who accompanies her may continue to rely upon the rights guaranteed by that legislation.

Lang J held that 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 García Ormazábal’s specific history, her Ladyship queried the compatibility of the 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?

An issue also arose as to whether the answer to the question posed could be different depending on whether García Ormazábal held a right of residence for more than three months granted pursuant to article 7 of the directive or a right of permanent residence in the UK conferred by article 16.

Advocate General Yves Bot

Asserting the supremacy of EU law, AG Bot judged that a non-EU national may benefit from a right of residence in the member state in which his EU citizen family member resided before acquiring its nationality developing a family life there.

Certain preliminary observations needed to be made. First, contrary to the UK government’s claims, it was wrong to put the situation at issue on the same footing as a purely domestic situation. Despite García Ormazábal’s present British nationality, recognising her third-country national spouse’s right of residence could not be treated as falling solely within the ambit of UK national legislation.

The actual exercise of García Ormazábal’s rights of free movement led to her take possession of a right of permanent residence in the UK. Moreover, it was on the basis of her permanent and regular residence permit, issued pursuant to article 16 of the directive, that she obtained British nationality in accordance with UK legislation: the UK did not dispute this point.

AG Bot explained that “an inextricable link” existed between García Ormazábal’s exercise of her rights under the directive and her acquisition of British nationality. As a result, the UK may not subsequently disregard the rights exercised by her on the basis of EU secondary law just as it may not disregard the fact that she retained her original Spanish nationality. EU citizens exposed to a situation where they are in danger of losing any rights conferred by the directive because of naturalisation fall within the ambit of EU law because of the “nature” and “consequences” of their harsh predicament.

(i) Citizens’ Directive

As demonstrated by Micheletti, Mesbah (C‑179/98), Kaur (C‑192/99), Zhu and Chen (C‑200/02) and Rottmann (C‑135/08), each member state was free to lay down the conditions for the acquisition and loss of nationality. However, that competence needs to be exercised in line with EU law and the national rules in question “must have due regard to EU law” in situations “manifestly falling under EU law”. In particular, Rottmann concerned a decision to withdraw naturalisation and serves as authority for the proposition that when that competence is exercised in respect of an EU citizen and affects the rights conferred and protected by the EU legal order, it is amenable to judicial review carried out in the light of EU law.

The court’s decisions in O and B (C‑456/12), Iida (C‑40/11) and Ymeraga and Ymeraga-Tafarshiku (C‑87/12) held that the directive confers no autonomous right on third-country nationals. The settled jurisprudence is clear that EU citizenship law only grants non-EU citizens rights as a derivative function of an EU citizen’s exercise of freedom of movement and residence. Accordingly, as shown recently by Rendón Marín (C‑165/14, see here), a non-EU national’s derived right of residence exists, in principle, only when necessity arises to ensure that an EU citizen can effectively exercise her rights to move and reside freely in the EU.

By providing that all EU citizens who move to or reside in a member state other than the member state of their nationality and their family members who accompany or join them are “beneficiaries” of the rights granted by the directive, the terminology underpinning article 3(1) has made “nationality a determining criterion for the scope ratione personae of the directive”. The result is that García Ormazábal’s acquisition of British nationality produced a change in the legal rules applicable to her. The UK relied on this point to illustrate that her naturalisation precluded her from continuing to be classified as someone who can be treated as beneficiary under article 3(1).

Clearly, by exercising her freedom of movement and leaving Spain and coming to the UK to study and work, García Ormazábal fell within the directive’s scope. Her acquisition of British nationality caused her to be excluded her from the directive’s scope ratione personae. Her circumstances were distinct from those found in McCarthy, Ymeraga and Others where EU citizens had never exercised their right of free movement and had always resided in the member state of their nationality. Despite the flexibility to be adopted in interpreting the directive’s provisions, article 3(1) had to be interpreted strictly to mean that its scope ratione personae is limited to EU citizens who reside in a member state other than their home state.

Since García Ormazábal was no longer a beneficiary it followed that her spouse Lounes was not entitled, under the directive, for a derived right of residence in the member state of which she became a national. To find otherwise would constitute a departure from the natural meaning of article 3(1) and the decided cases.

Guidance for the answer to the question asked by Lang J was found in O and B where a literal, systematic and teleological interpretation of the directive had been espoused. Following the line of authority found in Singh (C‑370/90) and Eind (C‑291/05), the CJEU laid down conditions on which non-EU national family members of an EU citizen are entitled, under EU law, to a derived right of residence facilitating their residence EU citizen in the home member state. The court said that the directive did not apply and ruled that in such circumstances non-EU nationals may not invoke a derived right of residence pursuant to the directive.

The wording of article 3 and of article 6, article 7 and article 16 – in “another member state” or in “the host member state” – confirmed that these provisions apply to an EU citizen who has exercised his right of freedom of movement by becoming established in a member state other than his member state of his nationality. Equally, the directive’s purpose illustrates that it is not intended to apply to an EU citizen who enjoys an unconditional right of residence because he resides in the member state his nationality. It is clear from article 1(a) of the directive that its object is only to establish the conditions governing the exercise of the right of free movement and residence within the member states’ territory. AG Bot reasoned that:

61. Thus, if acquisition of the nationality of the host member state is, in my view, part of the further integration of the Union citizen in that state, which is the aim of the directive, it must nevertheless be stated that, having regard to the scope ratione personae of the directive, this alteration of civil status excludes the Union citizen ipso facto from entitlement to the rights conferred by the directive.

Despite the clear paradox, extending the scope ratione personae of the directive to someone in García Ormazábal’s situation who had acquired the host member state’s nationality would constitute a departure from the “very wording” of article 3(1) and firmly established jurisprudence. The clear link between García Ormazábal’s exercise of her rights under the directive and her acquisition of British nationality was apparent but her naturalisation profoundly altered her legal situation not only in EU law but also in national law.

Accordingly, third-country nationals in Lounes’s situation are not entitled to a derived right of residence under the directive. However, that is not to say that they cannot obtain a derived right of residence on the basis of the provisions of the Treaty.

(ii) Article 21(1) TFEU

In particular, under article 21(1) TFEU member states must allow EU citizens who are not their nationals to move and reside within their territory with their spouse and, possibly, certain other family members who are not EU citizens.

Importantly, the CJEU gives article 21(1) TFEU “an extremely dynamic interpretation”. Indeed, to preserve its effectiveness the court applies the directive’s provisions “by analogy” in situations where as a result of the return of EU citizens to their home state neither they nor their family members are any longer provided coverage to the rights conferred by the directive.

Dissecting the court’s jurisprudence, AG Bot recalled the historic principle that where the directive was not applicable, in circumstances where an EU citizen has exercised his freedom of movement and returns to his home member state, his non-EU spouse, must be entitled to a derived right of residence in the home state in conditions “at least equivalent to those which he would enjoy under the Treaty or secondary law in the territory of another member state”. In other words, the EU citizen must thus enjoy at least the same rights of entry and residence as would be granted to him under EU law if he chose to enter and reside in another member state.

In particular, Singh and Eind show that after moving to and residing in another member state EU citizens and their non-EU family members accompanying or joining them returning to the EU citizens’ state of origin must not be treated less favourably than they were in the host member state. The rationale underpinning the approach was that dispensing with the third-country national’s rights would result in deterring the EU citizen from leaving the home state to find work in another member state if no certainty existed in relation to continuing a family life that may have taken root in the host member state because of marriage or family reunification.

An obstacle from exiting the home member state was all too apparent. In O and B the court transposed, mutatis mutandis, the earlier analysis in Singh and Eind. To avoid and overcome the obstacle, one that is clearly capable of inhibiting the germane right to free movement guaranteed by EU law, the CJEU constructed the principle of a right to return to the home member state whereby the conditions for granting a derived right of residence to the EU citizen’s non-EU family member may not be stricter than those laid down by the directive.

AG Bot found that the court’s solution, of applying the directive’s provisions mutatis mutandis when EU citizens return to their home member state, to be “transposable to the present case.” He acknowledged the clear difference between the cases. Notably, in O and B the EU citizen left the host state to return to the home state whereas in the present case no physical movement occurred because García Ormazábal did not leave the host state and resides there having chosen to acquire its nationality. Yet the juxtaposed cases shared the similarity that by choosing to be naturalised in the UK, García Ormazábal wished to live there in the same way as she would be prompted to live in Spain, building strong, lasting ties with the UK and becoming permanently integrated there. AG Bot noted a parallel between the reasoning in O and B  – the principles of which were recently recalled in Chavez-Vilchez (C‑133/15, see here) – and the approach that he advised the CJEU to follow in the present case.

The “inextricable link” between García Ormazábal exercising her free movement rights and her acquisition of British nationality made it even more compelling to opine that the directive’s provisions needed to be transposed mutatis mutandis. After all, she only came to acquire British nationality under British law after having first being granted a permanent residence permit pursuant to article 16 of the directive. She therefore took her integration in the UK “to its logical conclusion by requesting her naturalisation”. She did this in accordance with the objective envisaged by the EU legislature in both in article 21(1) TFEU and the directive. Importantly, recital 18 of the directive aims to make the permanent residence permit a genuine vehicle for integration for assimilation into the host member state’s society. Moreover, the fulfilment of the conditions in article 16 comprised clear evidence that “genuine residence and goes hand in hand with creating and strengthening family life in the host state.” Overall, AG Bot concluded that:

86. To deprive her henceforward of the rights to which she has till now been entitled in respect of the residence of her family members because, by being naturalised, she has sought to become more deeply integrated in the host member state, would annihilate the effectiveness of the rights which she derives from article 21(1) TFEU.

87. Such a solution would, in my view, be illogical and full of contradictions.

88. The deeper integration which Ms Ormazábal desired in the host member state by becoming naturalised would ultimately deprive her of the rights granted to her in respect of her spouse by EU law, which would manifestly be likely to harm her pursuit of family life in that state and thus, in the end, the integration which she has sought. What is given with one hand would therefore be taken away with the other.

For her to continue the family life which she started, García Ormazábal would then be forced to leave the UK to move to another member state to yet again claim the rights conferred by the directive: particularly the possibility of residing with her spouse, i.e. Lounes. It was therefore clear that the effectiveness of the rights granted by article 21(1) TFEU expects that people such as her must be enabled to continue the family life they have until then led in that host state with their non-EU spouse because:

90. … The treatment afforded to Ms García Ormazábal may not be less favourable than that accorded to her under the directive before her naturalisation or than would be granted to her by EU law if she in the end moved to another member state.

It was thus not acceptable to deny Lounes a derived right of residence on the basis of article 21(1) TFEU. It was unnecessary to consider whether an EU citizen such as García Ormazábal could rely upon the provisions of article 20 TFEU because the route suggested by AG Bot safeguarded “the effectiveness of the citizenship of the Union to which she is entitled”.

Comment

In their analysis of the directive, Peers, Tomkin and Guild argued that the McCarthy (C‑434/09) judgment “should be set aside at the earliest opportunity” because it “is contradictory and confused”. As they explain, a “striking” feature of the CJEU’s jurisprudence is that its generous decisions “are often soon followed by a conservative counter-reaction leading to an overall lack of direction which manifests itself in incoherent and conceptually flawed judgments”. McCarthy is particularly “inconsistent” with earlier judgments and “creates many anomalies and by comparison with essentially identical situations.”

While discussing the later “abuse of rights” case of McCarthy (C‑202/13, see here and here), also involving a dual Irish British national like McCarthy (C‑434/09), Peers chastised AG Szpunar for mishandling the situation by:

Having opened a Pandora’s Box by arguing implicitly that no dual citizens of two Member States can ever rely on the citizens’ Directive, the Advocate-General immediately tries to close it again, by calling upon the Court to reverse the rule which he has himself created.

The professor was unhappy that AG Szpunar failed to recommend “overturning the judgment or for limiting its scope”. The Advocates General do at times have a habit of getting things wrong. For example, in Van Gend & Loos (26/62), AG Roemer opined that some provisions of the treaty could have “direct effect” for citizens to rely on but that article 12 of the EEC Treaty was not one of them. His advice was ignored and the ECJ held that the provision was capable of creating personal rights for Van Gend.

Citizenship and Nationality

“The concept of citizenship is parallel but not identical to nationality,” explains Eric Fripp in his new book: emphasising that “each denotes legal affiliation to, or membership of, a state.” He proceeds to observe:

nationality identifies a person’s relationship with a state for the purposes of international law, whilst citizenship identifies the relationship of membership, created by national laws, between a particular person or his or her state.

Fripp’s analysis invokes the approach taken by Paul Weis that in conceptual and linguistic terms “nationality” and “citizenship” underline “two different aspects of the same notion: state membership.” The former emphasises the “international” and the latter stresses the “national, municipal aspect.” Yet the two terms are used “interchangeably” but that is “understandable, because in the vast majority of cases citizenship and nationality co-exist, and the existence of nationality follows from the possession of citizenship.” Fripp’s deconstruction of these concepts leads him to draw on Hirsch Ballin and he observes that citizenship is a form (“standard”) of legal membership describable as “at least potentially free of tribal and ethnic colouring.” In particular:

… citizenship marks the end of subjection of people to the political, tribal, ethnic, or religious entities to which they have been subordinated for centuries, based on a specific single identity.

Eric Fripp is a true socialist and Lamb Building offers free immigration seminars twice a year. Each year’s spring and autumn series of lectures consists of four sessions of 1.5 hours each, i.e. 12 hours per year. Cutting-edge updates are provided on free movement law, detention, deportation, judicial review, ECHR rights, medical claims and asylum cases. You do not need to have any special “instructing solicitor” status to attend. You can be anyone who is involved in immigration law.

About mkp

Advocate High Courts of Pakistan
This entry was posted in Citizens Directive, Citizenship and Nationality, CJEU, Employment, Integration, Permanent Residence, Proportionality, Spouses, Working and tagged , , , , , . Bookmark the permalink.

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