The UK has formally recognised the Lounes judgement eight months after the case was decided by the Court of Justice of the European Union.
The case of C-165/16 Lounes was decided by the Court of Justice of the European Union (‘CJEU’) on 14 November 2017. However, the necessary amendments to the Immigration (European Economic Area) Regulations 2016 will not come into force until 24 July 2018, over eight months after the original judgement.
The case of Lounes concerned a Spanish national who, after acquiring permanent residence in the UK, decided to naturalise as a British citizen. Ms Lounes later married an Algerian national in the UK. The question for the court was whether her husband would be able to accompany her in the UK on the basis of EU law.
The CJEU concluded that EU nationals who decide to naturalise as British citizens (‘Dual Nationals’) are able to retain their free movement rights under EU law once they had become British. This decision was based on the belief that:
‘…it would be contrary to the underlying logic of the gradual integration that informs Article 21(1) TFEU to hold that such citizens, who have acquired rights under that provision as a result of having exercised their freedom of movement, must forego those rights – in particular the right to family life in the host Member state – because they have sought, by becoming naturalised in that Member State, to become more deeply integrated in the society of that state’.
This judgement is of particular significance to EU nationals who, after naturalising as British, wish for their family members to join them in the UK on the basis of EU law rather than relying on the more restrictive UK domestic Immigration Rules.
The Immigration (European Economic Area) (Amendment) Regulations 2018
Until recently the UK had failed to acknowledge the Lounes judgement. As such, family members still ran the risk of being unable to reside with them in the UK under EU law.
However, the Immigration (European Economic Area) (Amendment) Regulations 2018 (‘the Amendment Regulations’) were laid before Parliament on 3 July 2018 and are due to come into force on 24 July 2018. These Amendment Regulations seek to incorporate the Lounes judgement to ensure that EU nationals who have naturalised as British citizens in the UK based on exercising their rights to free movement, do not lose those same rights on becoming British.
Of note, paragraph 1 of the schedule to the Amendment Regulations expands the definition of an ‘EEA national’ to include:
‘a national of an EEA state who is also a British citizen and who prior to acquiring British citizenship exercised a treaty right to reside as such a national, in accordance with regulation 14 or 15’.
The main change however can be seen with the insertion of a whole new regulation, 9A, which sets out that a Dual National will continue to be treated as an EEA national where they were considered to be a ‘qualified person’ at the time of obtaining British citizenship or where they held permanent residence.
As the majority of EEA nationals who naturalise as British citizens in the UK will first need to have obtained a right of permanent residence, this should effectively mean that those nationals will not lose their free movement rights upon becoming British.
The new amendments introduce a number of positive measures, however this is a complex area of law and as such we recommend that advice on complicated cases is sought.
If you require legal advice or would just like to discuss your situation with one of our experts, please contact us.