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?
Advocate General Bot thought that 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.
The Court of Justice
(i) Citizens’ Directive
In its judgment, mentioning McCarthy (C‑202/13, EU:C:2014:2450), the CJEU said that the Directive does not confer any autonomous right on non-EU national family members of an EU citizen. The rights of such individuals are derived from the rights which the relevant EU citizen enjoys as a consequence of having exercised his freedom of movement.
A literal, contextual and teleological interpretation of the Directive shows that it only governs the conditions determining whether an EU citizen can enter and reside in member states other than that of which he is a national. As the court held in O and B (C‑456/12, EU:C:2014:135) and Chavez-Vilchez (C‑133/15, EU:C:2017:354, see here) the Directive does not confer a derived right of residence on non-EU nationals who are family members of an EU citizen in the home member state. Moreover, the wording of article 3(1) is clear that EU citizens who move to or reside in a “member state other than that of which they are a national”, and their family members as defined in article 2(2) who accompany or join them, are covered by the scope of the Directive and benefit from the rights it confers.
Furthermore, article 6, article 7(1) and (2) and article 16(1) and (2) make references to an EU citizen’s right of residence and the derived right of residence conferred on the EU citizen’s family members either in “another member state” or in “the host member state”. McCarthy (C‑434/09) and O and B show that whilst the Directive aims to facilitate and strengthen the exercise of the right of EU citizens to move and reside freely within EU territory, the Directive lays down conditions governing the exercise of that right and this is clear from the terms of article 1(a). The Directive sets out conditions governing the exercise of the right of EU citizens to move and reside freely within the member states’ territory. It does not intended to govern the residence of an EU citizen in the home member state because, as held in McCarthy (C‑434/09) and O and B, under a principle of international law the EU citizen concerned enjoys an unconditional right of residence there.
No dispute arose in the instant case as regards (i) the fact that Mrs Lounes exercised her freedom of movement when she left Spain to move to the UK in 1996 and (ii) that she was the Directive’s “beneficiary” until she became a British citizen. Subsequent to her acquiring British citizenship, she lived in the member state of which she is a national and has an unconditional right of residence there under international law. Mrs Lounes’s acquisition of British citizenship meant that she ceased to be a “beneficiary” under article 3(1) of the Directive which no longer governs her residence in the UK because that residence is inherently unconditional.
The analysis of the inapplicability of the Directive to Mrs Lounes remained unaltered by the fact that she used her free movement rights to arrive in the UK and resided there or by her continuing to hold Spanish nationality in addition to British citizenship. She had not been residing in a “member state other than that of which [she is] a national” as stated in the Directive and was therefore no longer its “beneficiary”. As a consequence of the decisions in McCarthy (C‑434/09), McCarthy (C‑202/13) and O and B, the CJEU held that:
44. … Mr Lounes, who is a third-country national, likewise does not fall within that definition and thus cannot benefit from a derived right of residence in the United Kingdom on the basis of Directive 2004/38.
(ii) Article 21(1) TFEU
Every citizen of the EU has the right to move and reside freely within the territory of the member states and the conclusion was markedly different on article 21(1) TFEU. The CJEU reiterated the principle developed in Chavez-Vilchez and O and B that a non-EU family member of an EU citizen may derive right of residence based on article 21(1) TFEU in circumstances where granting such a right is necessary to ensure the EU citizen’s effective exercise of his freedom of movement and of the rights afforded by article 21(1).
Notably, article 21(1) TFEU does not confer any autonomous right of residence on a third-country national such as Mr Lounes but – as shown by Iida (C‑40/11, EU:C:2012:691) and O and B – it does confer a right derived from the rights enjoyed by the relevant EU citizen. A non-EU national is able to derive a right of residence on the principle in situations where it is necessary to ensure that the EU citizen can effectively exercise his freedom of movement. As held in Rendón Marín (C‑165/14, EU:C:2016:675, see here), Iida and O and B, the structure of this right is justified on the ground that refusing such residence would interfere with that freedom and with the exercise and the effectiveness of the rights afforded by article 21(1) TFEU to the EU citizen concerned.
Contrary to the UK’s arguments, Mrs Lounes’s position could not be regarded as a purely domestic situation on the ground that she had acquired British citizenship by residing in the UK in addition to her Spanish nationality. In Freitag (C‑541/15, EU:C:2017:432), the CJEU held that a link exists with EU law with regard to nationals of one member state who are lawfully resident in the territory of another member state of which they are also nationals.
In her capacity as EU citizen, a dual national of two member states such as Mrs Lounes who had used her right of free movement to move and reside outside her home state is able to rely on the rights pertaining to EU citizenship, especially the rights laid down in article 21(1) TFEU, also against one of those two member states. As held in Metock (C‑127/08, EU:C:2008:449) the right to lead a normal family life, together with family members, in the host member state is a part of the rights enjoyed by nationals of member states under article 21(1) TFEU.
The effectiveness of article 21(1) TFEU would be undermined by denying someone such as Mrs Lounes, who had moved from one member state to another member state, the right to have a normal family life merely because she subsequently acquired the nationality of the host member state as well.
Denial of such rights would result in an EU citizen being treated like a citizen of the host member state who never left that state and elected to remain stationary. This would disregard that someone in Mrs Lounes’s situation elected to exercise her freedom of movement by settling in the host member state while she retained her original nationality. Consequently:
55. A member state cannot restrict the effects that follow from holding the nationality of another member state, in particular the rights which are attendant thereon under EU law and which are triggered by a citizen exercising his freedom of movement.
EU citizens such as Mrs Lounes who exercise their right of free movement and reside in the host member state for many years pursuant to and in accordance with article 7(1) or article 16(1) and obtain its nationality intend to become permanently integrated there.
The court endorsed AG Bot’s view at para 86 of his opinion that the underlying logic of gradual integration that informs article 21(1) TFEU would be defeated if it were held that citizens, who have acquired rights by virtue of that provision because they exercised their freedom of movement, must waive or surrender those rights because they wanted deeper integration in the host state’s society by becoming naturalised there. Moreover, such a result would also treat EU citizens who opt to naturalise in the host member state less favourably than those EU citizens who do not. The outcome was particularly perverse because:
59. … The rights conferred on Union citizens in the host member state, particularly the right to a family life with a third-country national, would thus be reduced in line with their increasing degree of integration in the society of that member state and according to the number of nationalities that they hold.
The CJEU explained that the rights article 21(1) TFEU confers on an EU citizen, including the derived rights enjoyed by her family members, intend to promote the gradual integration of the EU citizen concerned in the host member state’s society. For the rights article 21(1) TFEU confers on EU citizens – especially their right to lead a normal family life with their family members in the host member state – to be effective, citizens who find themselves in Mrs Lounes’s circumstances:
60. … must be able to continue to enjoy, in the host member state, the rights arising under that provision, after they have acquired the nationality of that member state in addition to their nationality of origin and, in particular, must be able to build a family life with their third-country-national spouse, by means of the grant of a derived right of residence to that spouse.
Applying the approach in Chavez-Vilchez, the grant of the derived right of residence must not be stricter than the conditions contained in the Directive which needs to be applied by analogy to the context of the present case.
The CJEU’s desire to preserve family unity is commendable. However, as with most of its decisions the clarification provided tends to obscure things in one way or another.
Analysts suggest that the highly anticipated ruling raises questions about the exact point in time at which the benefits of judgment begin to bite. Professor Peers thinks that it would be odd if Lounes only covers situations where the EU citizen acquired the host member state’s nationality after moving there because this approach would leave out numerous cases where there was no movement: for example, acquisition of the second member state’s nationality through marriage or through a parent. Similarly, the ruling does not address lost or renounced citizenship cases.
Peers points out that potential problems also arise in relation to whether all the rights derived from the Directive apply by analogy. In light of the judgment in Alarape and Tijani (C-529/11, EU:C:2013:290), he questions whether Mr Lounes could obtain permanent residence.
Despite the potential pitfalls of the judgment, the outcome in Mr Lounes’s case is still seen as an “important milestone” by his counsel because it shows that the roots of EU free movement law run much deeper than the Directive’s provisions on free movement. However, with Theresa May campaigning wildly for a no deal Brexit, it seems that such statements may be a bit optimistic about what the future has in store for EU nationals and their non-EU family members.