15 November 2017

The Court of Justice of the European Union (CJEU) yesterday handed down a landmark judgment in the case of Lounes determining the ability of family members of EEA nationals to derive EU law rights after their EEA national family member has naturalised in the host member state.

The case arose after the Home Office’s refusal to allow Mr Lounes, an Algerian national the right to reside in the UK with his wife Ms Ormazabal, a Spanish national, who had exercised Treaty rights in the UK as a student and later naturalised as a British citizen. The UK government position was that as the family member of a British citizen Mr Lounes was required to meet the stringent provisions for family members under domestic UK law rather than the more relaxed provisions under EU law.

One of the questions to determine was whether Ms Ormazabal should be able to continue to enjoy Free Movement rights after she had naturalised as a British citizen and by extension whether Mr Lounes could be treated as her family member under EU law.

In its long-anticipated judgment, the CJEU held that where an EEA national:

• has exercised Treaty Rights by moving to and residing in a host member state (other than that of which s/he is a national);
• has then acquired the nationality of the host member state while retaining his/her nationality of origin; and
• several years later marries a third-country national with whom s/he resides in that member state

the third country-national is eligible for a derived right of residence under Article 21(1) TFEU, on conditions which must not be stricter than those provided for by the Free Movement Directive. Mr Lounes is therefore entitled to reside with Ms Ormazabal in the UK on the basis of her EU law rights, notwithstanding that she is also a British citizen.

Whilst the judgment was published in mid-November 2017, it remains to be seen when the Home Office will update its guidance to caseworkers dealing with such cases. In addition, questions remain over the status of family members of naturalised EEA nationals post Brexit and their eligibility to acquire permanent residence.

For further information on the implications of the Lounes judgment, please contact your assigned LDS or LDA lawyer or enquiries@lauradevine.com.