EEA citizens currently applying for naturalisation in the UK may be shocked to learn that the rights of their non-EEA family members will suffer when they gain dual citizenship.
EEA nationals exercising their treaty rights in the UK also acquire a right of residence for their family members.
In many cases the EEA rights of residence can be more expansive and easier to qualify for than the equivalent rights that are granted to family members of British citizens.
As a consequence of naturalisation, non-EEA family members of dual citizens may suddenly discover that they are no longer eligible to live and work in the UK.
EEA Family Member Rights
The Immigration (European Economic Area) Regulations 2006 provide free movement rights within the UK to direct non-EEA family members of EEA nationals.
Under these Regulations, direct family members are entitled to an automatic right of residence which includes the right to work, be self-employed and access to a range of government benefits.
These rights will continue for as long as the person remains a family member of an EEA national who is either:
- residing in the UK for an initial period of three months;
- exercising his or her rights as a ‘qualified person’; or
- a permanent resident in the UK.
Which Family Members Benefit?
Only direct family members of EEA nationals can attain the right of residence.
The Regulations define direct family members to include:
- a spouse (husband or wife) or civil partner of an EEA national;
- direct descendants of an EEA national or their spouse or civil partner who are:
- under the age of 21; or
- dependants of an EEA nationals or their spouse or civil partner;
- dependant direct relatives in the ascending line of an EEA national or their spouse or civil partner.
Registration and Permanent Residence
The right of residence for EEA family members is automatic. There is no requirement to register with the Home Office.
However, non-EEA family members will usually require either a state residence card from Germany or Estonia, or an EEA family permit as proof of their status before entering the UK.
It is permissible under EU law for a person to prove their right of admission at the border without these documents as long as they are able to clearly evidence that they meet the relevant criteria.
Non-EEA family members can also apply for a residence card and, after five years of continual residence in the UK, a permanent residence card, as further proof of their right to reside, work and access benefits in the UK.
The Rights of Non-EEA Family Members of British Citizens
By comparison, the rights of non-EEA family members of British citizens are, in many instances, more restrictive.
British non-EEA family remembers are required to first make an application for a family visa before entry.
There are significant fees attached to these applications.
There are also additional criteria that non-EEA family members of a British citizen must fulfil in order to obtain a visa.
There is, for example, a strict financial requirement applicable to most UK family visa applications.
The rights granted to family members of UK citizens are also more restrictive than the broad ‘rights of residence’ granted to family members of other EEA citizens.
UK Naturalisation for EEA Nationals
Where an EEA national is naturalised as a British citizen, there is no requirement for the person to relinquish their EEA country citizenship.
There is a risk, however, that the person will no longer benefit from EEA Regulations and will instead be assessed under the law applicable to British citizens.
As a result the rights of non-EEA family members to reside in the UK may be jeopardised.
In McCarthy C-434/09, the Court of Justice of the European Union held that the family members of British citizens who have never exercised their EEA right of free movement and residence in the UK, do not benefit from the Regulations, even if they hold dual nationality with another state.
Since this decision, the definition of ‘EEA national’ in the Regulations has been amended to exclude any EEA nationals who also hold British citizenship.
Transitional provisions apply to any person who relied on a dual British/EEA family member for their right of residence prior to 2012.
In all circumstances where family members have not yet obtained a permanent right of residence in the UK, EEA nationals should be aware of the potential consequences that may flow from naturalisation.