Dr Alina Tryfonidou, Associate Professor in EU Law, University of Reading
Last month, the High Court of England and Wales decided to make a reference to the ECJ for a preliminary ruling in the case of Lounes. The case – which is currently stayed awaiting the ECJ judgment on the reference – involves a couple comprised of a dual-British and Spanish national and a third-country national, who have been living together in the UK since 2013 and where they now seek to rely on the EU free movement rights of the former in order to claim family reunification rights for the latter. The question that is central to the resolution of the case is whether a Member State can provide in its legislation that from the moment that a national of a Member State acquires also the nationality of the Member State to which (s)he moved in exercise of EU free movement rights, (s)he ceases to be a beneficiary of EU free movement rights and of the secondary rights attached to them, such as family reunification rights.
Mr Lounes (the Claimant) is an Algerian national who entered the UK for the first time in 2010 and overstayed illegally. In 2013, whilst (still illegally) in the UK, he met and formed a relationship with Mrs Ormazabal, and in 2014 the couple married in London. Mrs Ormazabal was, originally, only a Spanish national. She moved to the UK in 1996 to study and since 2004 she has been employed on a full-time basis. In 2009, she acquired British citizenship whilst maintaining, also, her Spanish nationality and, thus, since then she is a dual-British and Spanish national.
Shortly after the marriage between the Claimant and Mrs Ormazabal took place, the Claimant applied to the Secretary of State for the Home Department (the Defendant) for an EEA residence card as the spouse of an EEA national who had made use of her free movement rights. This, however, brought the Claimant to the attention of the immigration authorities, which led to him being served with a ‘Notice to a person liable to removal’ on the ground that he had overstayed his visa in breach of immigration legislation, as well as a notice of a decision to remove him from the UK. In addition, the Defendant decided to refuse to issue the Claimant with the EEA residence card he had applied for on the ground that the Claimant’s ‘sponsor’ (i.e. Mrs Ormazabal) ‘does not meet the definition of an EEA national defined under Regulation 2 of the Immigration (EEA) Regulations 2006 (as amended on 16 July 2012) as she is also a British citizen’. In response, the Claimant applied for judicial review of the Defendant’s decision.
Under EU law, Union citizens can move to and/or reside in another Member State, usually this being a Member State other than that of their nationality. This right derives from the free movement provisions of the Treaty (Arts. 21, 45, 49, 56 TFEU), which are supplemented by pieces of secondary legislation which, inter alia, provide a number of secondary rights attached to the primary free movement rights stemming from the Treaty provisions. One such set of secondary rights are family reunification rights. Family reunification rights for all Union citizens who exercise free movement rights are laid down in Article 3.1 of Directive 2004/38 (also known as the 'citizens' Directive'), which provides that ‘This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them’ (emphasis added). Point 2 of Article 2 includes ‘the spouse’ in the list of family members mentioned in Article 3.1, whilst Recital 5 of the Directive notes that ‘The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality’ (emphasis added). Accordingly, on the facts in Lounes, the Claimant argued that he can rely on Directive 2004/38 to claim that he can join his wife – who is a Spanish national who has moved to and settled in a Member State (UK) other than that of her (originally only) nationality – in the UK, where she resides.
The national rules applicable in this case are the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003), as these have been amended in 2012, by SI 2012/1547 and SI 2012/2560. The definition of the various terms used in them is provided in section 2(1) of the Regulations. Instead of ‘Union citizen’, the Regulations use the (broader) term ‘EEA national’ when referring to the beneficiaries of free movement rights which are derived from EU law and can be exercised in the UK. The original version of the Regulations provided that ‘“EEA national” means a national of an EEA State’. The 2012 amendments amended this definition, which – following the amendment made by SI 2012/2560 – now reads ‘“EEA national” means a national of an EEA State who is not also a British citizen’ (emphasis added).
The effect of the above amendments is that a British national cannot rely in the UK on the rights stemming from the EU free movement provisions (including family reunification rights), and this is so even when that person is a dual British-EU national who has made use of his free movement rights. On the facts in the Lounes case this meant – as the referring court noted that it was submitted by the Defendant – that ‘after naturalisation as a British citizen, Mrs Ormazabal could no longer exercise any EU right to free movement within the UK despite her Spanish nationality and Union citizenship. In that respect, she was in the same position as other British citizens living in the UK who did not have dual nationality. She could, of course, exercise her EU right to free movement in other EU countries. It followed that the Claimant’s application to reside in the UK had to be determined according to UK domestic immigration law only; he could not rely upon the Directive and the EEA Regulations 2006’.
The Reference for a Preliminary Ruling
The question referred to the ECJ is the following:
‘Where a Spanish national and Union citizen:
i) moves to the United Kingdom, in the exercise of her right to free movement under Directive 2004/38/EC; and
ii) resides in the United Kingdom in the exercise of her right under Article 7 or Article 16 of Directive 2004/38/EC; and
iii) subsequently acquires British citizenship, which she holds in addition to her Spanish nationality, as a dual national; and
iv) several years after acquiring British citizenship, marries a third country national with whom she resides in the United Kingdom;
are she and her spouse both beneficiaries of Directive 2004/38, within the meaning of Article 3(1), whilst she is residing in the United Kingdom, and holding both Spanish nationality and British citizenship?’
The national court, therefore, asks, in essence, whether the amendments made in the 2006 Regulations which preclude Union citizens who, also, acquire British citizenship, from continuing to benefit from the rights stemming from the EU free movement provisions, are contrary to Article 21 TFEU and Directive 2004/38.
The referring court in its judgment observed that this is a test case and that similar claims have been stayed awaiting the outcome of this case.
Comments: What must the ECJ rule?
The Explanatory Notes to the amending instruments point out that the amendments made to the 2006 Regulations described earlier, were made in order to give effect to the ECJ judgment in Case C-434/09 McCarthy. However – and this is the important question – are the Regulations (as amended) a correct implementation of the ECJ’s judgment in McCarthy?
McCarthy involved a claim for family reunification rights in the UK by a dual UK and Irish national who was born – and had always lived – in that Member State. The only ‘external’ element in the case was the fact that Mrs McCarthy was a national of two Member States. The Court found that the situation was purely internal to the UK and, thus, was not covered by Article 21 TFEU, since it involved a Union citizen who had never exercised free movement rights and who had always resided in a Member State of which she is a national, where she was claiming family reunification rights. This indicates that the mere fact that someone holds the nationality of two Member States does not suffice for bringing that person within the scope of the free movement provisions of the Treaty, in the absence of the exercise of free movement rights. The Court in McCarthy distinguished the facts in that case from those in Garcia Avello which, according to it, involved dual Member State nationals residing in one of their States of nationality who had never exercised free movement rights but whose situation was not purely internal to a Member State because the contested measure could potentially deter the exercise of such rights.
The Court’s approach in the above cases demonstrates that what makes a situation purely internal to a Member State is not the mere fact that a Union citizen pursues an economic activity and/or resides in a Member States the nationality of which he possesses but rather the fact that the rights stemming from the free movement provisions have not been exercised and/or are not going to be impeded as a result of the contested measure. This is, in fact, also exemplified in an older case (Scholz) where the Court held that a German national who – having exercised free movement rights – settled in Italy, was still covered by (what is now) Article 45 TFEU and could rely on that provision against Italy, even after becoming naturalised as an Italian national.
Accordingly, in all cases, the important question is not whether a Union citizen seeks to exercise rights deriving from the EU free movement provisions in her Member State of nationality, but rather, whether there is a sufficient cross-border element. And although the Court’s approach in cases such as Angonese, Carpenter, Schempp and Ruiz Zambrano (all of which involved Union citizens seeking to enforce their EU rights in their Member State of (sole) nationality) demonstrates that it is increasingly easy to establish such a cross-border element on the facts of a case, there are still instances where such a link fails to be established, obvious, recent, examples of this being Iida (which involved a merely hypothetical obstacle to free movement) as well as McCarthy itself.
In McCarthy, it was clear that free movement rights were neither exercised nor were they going to be impeded as a result of the contested measure. The situation in Lounes, however, is fundamentally different, because it does involve the exercise of free movement rights (the original movement of Mrs Ormazabal from Spain to the UK) and the contested national measure (i.e. the removal of the Claimant from the UK) is capable of impeding the exercise of those rights.
However, which right exactly which is stemming from the free movement provisions can be impeded as a result of the refusal of family reunification rights in a situation such as that pertaining in Lounes?
The aim of the free movement provisions is, primarily, to protect the free movement rights of Union citizens. These have, always, been read as including the right to move to another Member State to take-up an economic activity and/or residence there; in other words, it is clear that these provisions cover the initial right of a Union citizen to move to, and settle in, the territory of another Member State. However, in more recent case-law, the Court has made it clear that the free movement provisions, also, require Member States not to act in a way which discourages Union citizens from continuing to exercise the free movement (see S & G case) and/or residence (see Metock case) rights they derive from the EU free movement provisions: in other words, Member State measures amount to a restriction caught by the EU free movement provisions not only when they prevent a Union citizen from exercising his/her initial right to move to another Member State and/or to take-up residence there, but also, if they discourage a Union citizen from continuing to reside in the territory of the host State or, more broadly, from continuing to exercise the rights stemming from the free movement provisions (e.g. to continue to pursue an economic activity in a cross-border context).
Hence, in a situation like that in Lounes, where the initial rights to free movement and taking-up of residence in the host State had already been exercised by Mrs Ormazabal and would not be impeded as a result of the contested measure, a breach of Article 21 TFEU can, still, be established, since the contested measure can discourage her from continuing to reside in the UK: as noted in Metock, Union citizens are liable to be discouraged from continuing to reside in the territory of the host Member State if they are refused the right to be joined or accompanied by their close family members in its territory.
Legislation such as the 2006 Regulations which refuse family reunification rights to all Union citizens who hold (or, also, hold) British nationality – irrespective of whether there is a cross-border element on the facts of the case – amounts, therefore, to a restriction on the exercise of the rights stemming from the free movement provisions. Such a restriction is, clearly, unjustifiable under the public policy derogation from the free movement provisions, as it is an en bloc refusal of free movement rights to Union citizens and their family members, and is, thus, not based on the personal conduct of the persons involved in a specific case, which is required by Article 27(2) of Directive 2004/38.
Accordingly, the ECJ must rule that legislation such as the 2006 Regulations is in breach of the EU free movement provisions (and of Directive 2004/38). The UK will only correctly implement McCarthy if it amends its legislation to provide that persons who hold dual nationality of the UK and another Member State are not beneficiaries of the rights stemming from the EU free movement provisions (and the secondary legislation implementing them) in the UK only if they have never exercised free movement rights (as established in McCarthy) and/or if the rights stemming from the free movement provisions will not be impeded as a result of the contested measure (as established in Garcia Avello).
Barnard & Peers: chapter 13
JHA4: chapter I:6
 For a discussion of the distinction between potential obstacles and purely hypothetical obstacles to the exercise of free movement rights for the purpose of establishing a cross-border element see A. Tryfonidou, ‘(Further) Signs of a Turn of the Tide in the CJEU’s Citizenship Jurisprudence, Case C-40/11 Iida, Judgment of 8 November 2012, not yet reported’ (2013) 20(2) MJ 302, pp. 307-313.
 As Advocate General Tesauro noted in his Opinion in Singh, para. 5: ‘the simple exercise of the right of free movement within the Community is not in itself sufficient to bring a particular set of circumstances within the scope of Community law; there must be some connecting factor between the exercise of the right of free movement and the right relied on by the individual’. In other words, in order for a breach of the free movement provisions to be established, it does not suffice that free movement rights have been exercised, but it must be proved, in addition, that such rights are impeded as a result of the contested measure. This is also evident by the fact that in some cases (e.g. Cowan) the Court read the free movement provisions together with the prohibition of discrimination laid down in Article 18 TFEU and (only) found a breach of the latter, where a person who had exercised free movement rights was discriminated against in the host State but the discrimination complained of was not capable of impeding the exercise of those rights.