Wednesday, 15 November 2017

Dual citizens and EU citizenship: clarification from the ECJ




Professor Steve Peers

One of the basic rules of EU free movement law is that in principle it can only be invoked by EU citizens who are in a Member State other than their Member State of nationality. As a corollary, those EU citizens who are in the Member State of which they are a national cannot invoke free movement law – although ECJ case law in some cases allows them to claim rights on the basis of their EU citizenship instead.

So what happens if someone is a citizen of two Member States? If they are living in one of those two States, at first sight they are Schrodinger’s EU citizen: simultaneously entitled to free movement rights (as they are in a Member State other than their Member State of nationality) and not entitled to those rights (as they are in the Member State of which they are a national). In its 2011 judgment in McCarthy, the ECJ ruled that a dual citizen of two Member States (the UK and Ireland) who had not moved from the UK could not claim rights based on free movement law or EU citizenship. But did that finding rest on the mere fact that Ms McCarthy was a dual citizen of two Member States – or rather upon the fact that she was a dual citizen who had not moved between Member States?

Yesterday’s ECJ judgment in Lounes has clarified this important point. (On the background to the ruling, see Alina Tryfonidou’s analysis). It concerned a Spanish citizen who moved to the UK, who then gained UK nationality and married a non-EU citizen. She invoked free movement rights so that he could stay with her, but the UK government, having changed its law after the McCarthy ruling, argued that she was subject not to EU law, but to the more restrictive family reunion rules applicable to UK citizens.

The ECJ ruled that she was not entitled to invoke the free movement rights (including the family reunion rules) in the EU citizens’ Directive, since she was now a UK citizen in the UK. However, the Court said that she could invoke her EU citizenship based on the Treaties: for that purpose she was still regarded as a Spanish citizen who had moved within the EU. While the Treaty citizenship provisions, unlike the citizens’ Directive, contain no specific rules on family members, the Court said that she should be treated no less favourably than those covered by the Directive, as it would be unjust to treat her worse than a Spanish citizen who had moved to the UK and not acquired UK nationality.

In effect, dual citizens of two Member States who move within the EU therefore form another exception to the rule that EU citizens cannot claim free movement or citizenship rights against their Member State of nationality. They join: EU citizens who move to another Member State and return home (Surinder Singh); EU citizens who live in their State of nationality but who take up economic activity outside it (Carpenter); and EU citizens who live in their State of nationality but would be compelled to leave the EU if their non-EU parent is expelled (Ruiz Zambrano). (The ECJ most recently clarified the status of the first two categories in two 2014 rulings, which Chiara Berneri discussed here; and it most recently clarified Ruiz Zambrano cases in a spring 2017 ruling, which I discussed here).

Comments

The Court’s ruling in Lounes raises several questions. First of all, does it apply only where the EU citizen acquired the second nationality after moving to that second Member State? At first sight, the Court’s ruling suggests this. But it would be odd to deny the same rights to those who gained the second nationality earlier, upon marriage to a national of that second Member State, or to those who have had two nationalities since birth, for instance because: their parents have different nationalities; or they were born in one Member State but one or both parents is a national of another Member State; or they obtained both UK and Irish nationality because they were born in Northern Ireland. Of course, in each of those scenarios, the dual citizen would still need to move within the EU to invoke the EU citizenship rights.

What about those who lost the citizenship of one Member State when they acquired the nationality of another one? The earlier case of Scholz suggests that they, too, keep rights – although that case was decided on free movement rather than citizenship rights.

For dual citizens covered by Lounes, do all the rights derived from the citizens’ directive apply by analogy? A particular issue arises with acquiring permanent residence, where the Court previously suggested in Alarape that only those covered by the citizens’ Directive as such could gain permanent residence. (While gaining permanent residence would be irrelevant to Ms. Lounes as a citizen of the UK, it would be important to establish whether her non-EU husband could obtain that status). But that case concerned a comparison between those covered by the EU citizens’ Directive and those covered by a separate Regulation, not those covered by the Treaties. And in Lounes, the Court insisted upon the citizens’ Directive applying by analogy. So it is arguable that the permanent residence rules still apply. (See also the argument on this made in the Free Movement blog).

Finally, what happens after Brexit, for dual citizens of the UK and another Member State? For those who moved before Brexit Day, it will be important to ascertain whether the withdrawal agreement (if there is one) fully guarantees the continuation of ECJ case law on this issue, given that family reunion is still a disputed issue between the UK and EU27 sides. For those who arrive within a transition period (if one is agreed), the issue will be whether the withdrawal agreement also guarantees the full application of EU laws and case law to them. For those who arrive after that transition period ends, the issue will be whether the UK has made any commitments at all on this issue, or whether UK law only will apply – in which case more restrictive family reunion rules will apply. If there is no deal on this issue between the UK and EU27, then the UK’s more restrictive rules will apply – unless those rules change as a consequence of an election that might then follow. (Note that UK citizens living in Spain cannot obtain Spanish nationality at present).

Those who have two nationalities already, and who fall in love with someone who has a third nationality, inevitably bring out the greatest tension between the arid dictates of immigration law and the human need of family members to live their lives together. It remains to be seen whether those whom EU law has joined together, will be split asunder by Brexit. 

JHA4: chapter I:6
Barnard & Peers: chapter 27, chapter 13

Photo credit: thinkSPAIN

53 comments:

  1. Very fascinating piece. Just a clarification. When at the end of paragraph 3 you write "argued that she was subject not to EU law, but to the more restrictive family reunion rules applicable to EU citizens", do you mean "the more restrictive family reunion rules applicable to UK citizens"?

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  2. Dear Steve,

    With the Directive applying by anology, does this mean like Surinder Singh cases the EEA national will have to continue to exercise treaty rights until the non-eea national gains permanent residence?

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    1. Assuming that applying the Directive by analogy also means that the permanent residence rules apply, then presumably yes.

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    2. Dear Steve,

      Thank you for your reply.

      Surely rights derived from Article 21 are not dependent on whether the eea national continues to be a qualified person?

      Looking at it from a Surinder Singh perspective the ECJ court in Eind said the returning EEA national does not need to be a qualified person in order to benefit from a derived right of residence.

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  3. After Brexit, if there is a deal, Kahveci and Inan (C-7/10 and C-9/10) which is similar to Lounes, but concerns naturalized Privileged Third Country Nationals, will apply to dual UK-EU citizens. If the Court hadn't decided in the way it did in Lounes, dual UK-EU citizens would have been in a better position as Privileged Third Country Nationals than as dual EU citizens in the Member State of naturalization.

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    1. That case differs from the usual approach of the ECJ to dual citizens of non-EU and EU countries - see Mesbah and the later case of Demirci, as discussed here - http://eulawanalysis.blogspot.co.uk/2015/01/the-ups-and-downs-of-dual-citizenship.html

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    2. Very true. But I think that the Court in such a case would still apply Kahveci and Inan and not Demirci. Especially as Demirci and Mesbah concerned social benefits and not family reunification. The Court seems also inspired by Kahveci while not directly referring to it.

      Kahveci and Inan para. 35:
      "That aim pursued by Decision No 1/80 would be impeded if acquisition of the nationality of the host Member State were to require a worker who retains Turkish nationality to forego the benefit of the conditions which promote family reunification in the host Member State."

      Lounes para. 58:
      "As is stated, in essence, by the Advocate General in point 86 of his Opinion, it would be contrary to the underlying logic of 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."

      The reasoning and even wording is nearly identical.

      Looking forward to your thoughts on it.

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  4. Dear Steve, from what I can undeerstand, a family member of a EU citizen who moved to the UK and acquired also a British citizenship, can derive the right to reside from their dual citizen relative. Is the correct? Many thanks. Laura

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    1. Yes, that's what this judgment establishes.

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  5. Thank you very much! Kindest regards. Laura

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  6. Dear Steve, is this ruling enforceable by people in similar situation? For instance a Eu family member of a Eu and British citizen? Thanks. Marisa

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  7. Hi Steve my girl friend born in England 1970 and she moved Ireland 1974 her mother was British and father was Irish she hold both nationality Irish and British is she still exercise her free movement rights in Ireland to keep me in Ireland ?

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    1. I can't comment on individual cases. But if the judgment applies to all dual citizens who move, not just those who acquired their second nationality after moving, then it should apply to circumstances like these. It's also necessary to fall within the definition of "family member" in the EU Directive which is applied by analogy.

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  8. Is this ruling binding for the UK secretary of State? Thanks. Marisa

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  9. Is this ruling binding in Uk? Thanks.

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  10. Hi
    Is this case of dual nationality considered in the agreement made on the 8th of December 2017 between UK and EU?
    Thank you very much

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  11. No, the issue is not specifically mentioned. See further my blog post on the agreement.

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  12. Can you foresee that they will eventually have to consider this case on the final agreement. Otherwise there will be people referring to the ECJ Judgement in Lounes (in the case of Spanish citizen moving to the UK and obtaining the British nationality) to the British court during the 8 years period where they can refer to the EJC.
    Thank you very much.
    Angel

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    1. A Barnier adviser tells me on Twitter that people covered by Article 21 TFEU will be covered. If so then Lounes will apply.

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  13. Thank you very much for your prompt reply.
    Angel

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  14. Hi Steve

    Great post. Do you think this decision on Lounes would extend to dual national children of EEA national parents present in the UK? Lets say, for example, a dual national child born in the UK to EEA national parents who were exercising treaty rights in the UK at the time of birth but who did not have PR at that time and later acquired it, enabling the child to then acquire British citizenship by registration (with the parents both remaining as non British citizens)? Do you think that, due to the decision in Lounes, that dual national child would retain rights under s 21 TFEU after becoming a British citizen? If not (due to lack of movement of the child), would the answer be different if the child exited and reentered the UK (on his/her EU passport) with his/her parents for a holiday abroad before acquiring British citizenship?

    Thanks very much

    Michael

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    1. Interesting question. I wonder if it's necessary to examine the position of such a child separately from the parents; if one or both of them are EU citizens who have moved then their child would be covered as a family member. As far as I can see the issue would only arise if the child become old enough to marry a non-EU citizen, in which case the issue would be whether the child has moved within the EU or not. As to the definition of moving, the ECJ case law from 2014 says that returning EU citizens' rights under the 'Surinder Singh' case law are only triggered if an EU citizen has lived for over three months in another Member State.

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  15. This comment has been removed by a blog administrator.

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  16. Do you know when the Home Office will update their residence card process following this ruling?

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  17. Hi Steve,
    Just to confirm, I am a French national living in UK since 1996. I met my husband in 2012 and we got married in September 2012. He got his residence card as a family member of an EEA in March 2013. However, I became british in March 2017, but I am still French as well as becoming british. Now my husband needs to apply for Permanent residency in March 2018 so will Lounes apply in our situation? Even though home office has not yet issued any new guidance?
    Looking forward to your reply.

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    1. I can't advise on individual cases, but in principle Lounes should apply to a case like this. As far as I know there's no Home Office response, but keep checking.

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  18. Just to clarify something..

    If this lady had only lived in Spain and had dual Spanish/British nationality (through parents or whatever), then decided to come to UK with her nonEU spouse, would this same ruling apply in this circumstance?

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    1. It should do, although in that scenario Spanish law would have applied to the question of whether her spouse could have joined her in Spain (assuming she had not otherwise moved within the EU first).

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  19. Dear Professor Peers, the Uk doens't comply with the ECJ Lounes ruling yet. Do you think that they try to avoid it? Thank you. Laura

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  20. Hello Steve,
    Thank you for the article. Can you please help me to understand- after Lounes, are dual EEA and British citizens able to bring their third country spouse to UK under EEA Family Permit without having to apply for VISA for spouse of British national? If yes, which rule/document would prove it? Was it officially published by HO yet? Thank u so much.

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    1. In principle they should be able to bring their non-EU spouse to the UK on that basis (although they would only be covered by the ruling if they have moved within the EU). As far as I know the UK government has not implemented the ruling, but keep checking.

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  21. Dear Sir

    My question is with regards to Toufik Lounes v the Secretary of State for the Home Department (C‑165/16). I would really appreciate your kind help to resolve this puzzle. If someone before naturalising as a British National, was himself a Direct/Core Family Member (Article 2 (2) (a) of the Directive 2004 38 EC) of an EEA national (Polish) in another member State (Cyprus), then both had moved to the United Kingdom, in 2006 from Cyprus after getting EEA Family Permit for non-EEA family member. The Non-EEA family member then had completed the qualifying residence period of 5 year in the State (UK) and he was granted Permanent Residence and then he naturalised as British Citizen, would this judgement apply to this scenario.
    Many thank

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  22. Mr Peers, many thanks for this. I have a worrying thought that post brexit (if it happens) the UK may well want to scrap the right to dual nationality. What do you think? Thanks.

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    1. That's the sort of idea that narrow-minded individuals like Nick Timothy might conceivably push for; but then again he is blamed for losing the Conservative party its majority with his approach. There are obvious issues about how it would apply in Northern Ireland. Hard to get it through Parliament, at least with the current numbers.

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    2. Many thanks for taking the time to reply.

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  23. Just to clarify. UK nationals living in Spain can apply for (and be granted) naturalisation in Spain. What they cannot be is dual nationals as they would have to relinquish their UK nationality when becoming Spaniards. This follows from the Spanish constitution and it could not be modified through a simple legal modification. It would require a constitutional reform. Interestingly enough, it would be legal for that person to recover the UK nationality after naturalisation (or never loose it if the UK denies the renunciation)ad be a dual national.

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  24. Hello Steve... You question whether the court's decision rests upon " the mere fact that Ms McCarthy was a dual citizen of two Member States" or upon the fact that she is a dual citizen who has not exercised her right to free movement....I thought the court had made it clear that the decision was down to McCarthy's failure to exercise her free movement rights....I suppose my question is how and why could/would it rest on the mere fact that she was a dual national? Thank you in advance. Kind regards, Andrea

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    1. Because there are parts of that judgment that refer to dual nationals generally, and parts that refer to the supposed lack of exercise of free movement.

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  25. Hello Mr steve
    I'm non eu national
    I got married in may 2013 to eu citizen and recently in January 2018 my wife became a British citizen and we weren't aware of the effects of dual nationality.
    And here is my question and can you please answer it?
    Do you think i can apply for my permanent residence in May 2018 under lounes case and carry on normal life? Or
    I will issued another 5 years under lounes case?
    By the way lounes case has determined by the high Court on 25 April 2018
    And home office agreed to amend the EEA regulations.
    Many thanks in advance

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    1. I can't answer individual questions but in principle once the EEA Regs are amended to give effect to the latest development any non-EU citizens married to a dual EU27/UK national should be able to claim permanent residence by analogy with the rules set out in the free movement Directive: see the discussion and link on this point in the blog post.

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  26. Dear Professor, after the High Court hearing on Lounes case, will other Judges follow Lounes ruling (Common Law) before the amendment of the EEA Regs? Many thanks, Laura

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    1. Thanks for your question. As far as I am aware the common law won't change the position as regards this issue - it will depend on the amendment of the Regs.

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  27. Thanks a lot for your answer. I was hoping that this could happen in analogy with the High Court outcome on 25/4. So we have to wait until the HO amend the Regs and let's hope it'll be soon. Regards. Laura

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  28. Hello mr Steve.
    Do you think in lounes judgment means that EEA nationals are free to progress to British citizenship without first weighing up the effect it will have on their TCNs family members?
    Thanks for your time

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    1. Remember the result has to be implemented in UK law first; and there is the possibility that the UK will try to unpick it after Brexit day. In principle the answer is yes, but anyone who would consider this should hesitate and look into the details of how it might affect their family's individual position and what might happen after Brexit day.

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  29. Dear Professor Steve, the HO has mentioned Lounes judgement in settled status application scheme, published on 21/6/18 (pages 24 and 53). So it seems that all is sorted now? Many thanks. Regards. Laura

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    1. They mention their intention to bring in changes to the immigration rules to deal with Lounes soon, and incorporate them into the settled status scheme. Those changes are not with us yet.

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    1. I can't answer about individual cases but in principle the UK government has now implemented the Lounes judgment, so dual citizens of the UK and another EU Member State can rely on EU free movement law to obtain entry for their non-EU spouse. It would be best to consult a lawyer for the details.

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