The European Court of Justice (ECJ) has ruled an EU national who becomes a British citizen does not lose the right to have a non-EU spouse live with them in the UK.
The court ruled the UK Home Office was mistaken in denying a dual British-Spanish citizen the right to bring her Algerian husband with her to Britain.
immigration Solicitors in London, migrant rights groups, and barristers told the Guardian that the ruling will have strong implications for EU nationals who are applying for British passports who are married or engaged to non-EU nationals, for example, someone from the UAE. One stated:
“The court has held that the UK has been wrong to refuse to recognise free movement rights for all those EU citizens who have been naturalising as British following the Brexit referendum. After Brexit, though, all those rights will be lost unless an agreement is reached to retain them.”
The details of the case
Toufik Lounes, an Algerian national, entered the UK on a six-month visa in 2010. He failed to leave the country, making him an illegal overstayer. His Spanish/British citizen wife, Garcia Ormazabal came to the UK as a student in 1996 and has been working full-time since 2004.
The Home Office argued that Mr Lounes would have to be sponsored in accordance with the UK spouse visa requirements, including the minimum income threshold of £18,600 because Ms Ormazabal’s rights under the freedom of movement directive were lost when she became a British citizen. Therefore, Mr Lounes could not apply for EU Permanent Residency.
The case was referred to the ECJ last year. The court spent five months deliberating the decision.
The court concluded that although the European directive governing Ms Ormazabal’s rights did stop governing her residence in the UK once she had obtained British Citizenship, Mr Lounes had a “derived right” thanks to the freedom of movement rules. The ECJ stated that for the freedom of movement principle to be effective, EU nationals must be able to move between states with the right to build a family wherever they are.
The ECJ said denying this right “would amount to treating Ms Ormazabal in the same way as a British citizen who had never left the UK, disregarding the fact that she has exercised her freedom of movement by settling there and that she has retained her nationality of origin.”
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