IMPACT – MEDIUM

In a case that could benefit some non-EU spouses of EU nationals in the U.K., the EU Court of Justice has clarified the derived rights to reside of non-EU family members where the EU national has become a naturalized British citizen.

The case was brought by a Spanish national who moved to the U.K. as a student in 1996, worked there since 2004 and became a British citizen in 2009, while retaining her Spanish citizenship. In 2014, she married an Algerian national who was in the U.K. on an expired visit visa. The U.K. denied her husband’s derived residency application on the basis that she was no longer exercising her rights of free movement when she became a naturalized British citizen.

But the Court disagreed, finding that the right to lead a normal family life in the host EU Member State must include the ability to continue to enjoy such rights after acquiring nationality in the host state in addition to their nationality of origin.

“Accordingly, the Court holds that a non-EU national… is eligible for a derived right of residence under Article 21(1) TFEU [Treaty on the Functioning of the EU], on conditions which must not be stricter than those provided for by the directive for the grant of such a right to a third-country national who is a family member of an EU citizen who has exercised his right of freedom of movement by settling in a Member State other than the Member State of which he is a national,” the Court held in a two-page written decision.

The case is Toufik Lounes v Secretary of State for the Home Department, C-165/16.

BAL Analysis: The ruling may benefit some non-EU spouses in the U.K. in similar situations, who would be able to apply for residency under derived rights rather than having to meet more stringent criteria as the spouse of a British citizen. The court does not address whether the non-EU spouse would still have a derived right to reside if the EU spouse has given up their home country’s citizenship.