After a five-month deliberation it has ruled that the Home Office was wrong to refuse a dual British-Spanish citizen the right to have her Algerian husband live with her in the UK.
Immigration barristers say the ruling will have widespread implications for EU citizens applying for British passports and those married or considering marriage to a third-country national.
“This is great news for EU citizens who have moved to another European country because it enables them to benefit from sensible EU rules on being joined by family members,” said immigration barrister Colin Yeo, an expert on freedom of movement.
The ECJ 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. However, after Brexit, all those rights will be lost unless an agreement is reached to retain them.
The case of García Ormazábal and her husband, Toufik Lounes, was referred to the European court by the high court in London in 2016 after the Home Office rejected an application by the Algerian for permanent residency in the UK.
He had come to the UK in 2010 on a six-month visa and then overstayed illegally.
Ormazábal moved to the UK as a student in 1996 and has been working full time in the UK since 2004. She became naturalised as a British citizen in 2009 but also retained her Spanish nationality.
The Home Office had argued that Ormazábal’s rights under the freedom of movement directive no longer applied when she became a British citizen and that she should be treated like any other British national living in the country who would have to go through strict immigration procedures to assess whether her husband qualified for a spouse visa.
The Home Office argued that domestic immigration laws applied instead and therefore he was not entitled to apply for residency under EU legislation.
The ECJ ruled that the European directive governing Ormazábal’s rights did cease to govern her residence in the UK. However, it concluded that her husband had a “derived right” under freedom of movement rules.
It said that if the freedom of movement rules were to be effective, European citizens such as Ormazábal, who move to another member state and acquire citizenship of the country, must be able to continue to have the right to build a family.
She took the Home Office to court, but last year the high court referred the Lounes case to Europe asking the court to decide whether the British government had breached freedom of movement family rights.
The high court told the ECJ it had doubts as to the compatibility of the Home Office’s decision and UK legislation with EU law and sought direction from the European court on the application of its own laws.
The case was of such significance that Spain and Poland, as well as the UK home secretary, made legal submissions on it.
The ECJ decided that the EU directive on freedom of movement family rights does not confer rights on EU citizens who have not exercised those rights by moving to another country within the bloc. However, it does confer those rights on an EU citizen who has moved to another country and these are known as“derived rights”.
It said that denying Ormazábal these rights on the grounds that she had become a British citizen was legally wrong.
The ECJ confirmed that this interpretation of European law “would amount to treating Ms Ormazábal in the same way as a British citizen who has 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.”
Barrister Yeo said the ruling would unlikely guarantee family rights for an EU citizen who became a citizen of another member state and renounced or lost citizenship of the EU member state from which they had moved. This was not at issue in this case and therefore it would be open to legal argument.
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