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In an opinion published today in Case C-165/16 Lounes, Advocate General Bot has advised the Court of Justice of the EU to hold that an EU citizen who becomes a British citizen retains important EU law rights over and above her rights as a British citizen. If the Court agrees, this is likely to have a significant impact on negotiations concerning the rights of EU citizens in the UK after Brexit.
The EU law right at issue was the right of EU citizens to bring their non-EEA family members with them to reside in the U.K. Due to U.K. immigration policy, British citizens have no right to bring a non EEA spouse to live with them in the UK: they are permitted to do so only if they meet certain requirements, in particular a minimum earnings requirement. Poorer British citizens either have to live apart from their spouse or go to their spouse’s country to live. EEA citizens, however, have that right under EU law, in particular Directive 2004/38.
The facts in Lounes were that a Spanish citizen came to the UK in 1996 and took British nationality in 2009. She retained Spanish nationality. In 2013 she started a relationship with an Algerian national who had overstayed his UK visitor visa. They married in 2014. The Home Office sought to deny her husband residence.
The Advocate General held that Directive 2004/38 did not apply: it was confined to EU citizens who lived in Member States of which they were not citizens. But, he argued, general principles of EU law, derived from Article 21.1 TFEU(rights of EU citizens to reside and move freely within the EU), combined with the fact that her acquisition of British citizenship was intimately linked to her exercise of her EU law rights, meant that she should be held to have an EU law right to have her husband live with her in the UK. Further, if she lost her EU law right on acquiring British citizenship:
“88. The deeper integration which [she] desired in the [UK] by becoming naturalised would ultimately deprive her of the rights granted to her in respect of her spouse by EU law, which would manifestly be likely to harm her pursuit of family life in [the UK] and thus, in the end, the integration which she has sought. What is given with one hand would therefore be taken away with the other.”
He regarded that result as “illogical and full of contradictions”.
If this approach is followed, it has significant implications for the approach to the post-Brexit protection of the rights of EU citizens already living in the UK. In particular, it means that – if Leave campaigners’ repeated promises that Brexit would not affect the rights of EU citizens already in the UK are to be honoured- even those EU citizens who have taken, or go on to take, British citizenship will need to be within the scope of the system of protection of EU law rights set out in the withdrawal agreement.
The case also illustrates why the EU is unlikely to accept that the UK courts are left to determine what the content of those continued rights are: after all, the Home Office has vigorously argued against the approach taken by the Advocate General.
Finally, the Advocate General’s comment on the illogicality of the position argued for by the Home Office is perhaps symptomatic of a widespread EU incomprehension of the serious restrictions that the UK chooses to impose on the rights of its own citizens to live in their own country with those whom they have chosen to marry.
Please click here to read the Opinion.