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).
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