In a landmark judgment, the Court of Justice of the European Union (CJEU) has found that EU citizens who become nationals of another EU Member State retain the right to have a non-EU spouse live with them.
The Court found that the British government had breached the rights of a dual British-Spanish citizen seeking to have her Algerian husband live with her in the UK by denying him permanent residency.
The conditions for the grant of a right of residence for a non-EU spouse must not be stricter than those laid down by the free movement directive.
The Secretary of State for the Home Department stipulated that under the UK legislation implementing the free movement Directive 2004/38/EC, the Spanish national had ceased to be regarded as an ‘EEA national’ following her acquisition of British citizenship. Her husband could not therefore claim a residence card as a family member of an EEA national but had to follow the UK Immigration Rules which are stricter.
The directive does not confer any autonomous right on family members of EU citizens who are non-EU nationals, but only derived rights from the rights which the EU citizens concerned enjoy as a result of having exercised their freedom of movement (move to and reside in a ‘Member State other than that of which they are a national’).
The Court stated that if a EU national acquires British citizenship, the directive will cease to govern his residence in the UK and will no longer apply to him. Consequently, his spouse would not benefit from a derived right of residence in the UK on the basis of the directive.
However, a non-EU national and family member of the EU citizen, may be eligible for a derived right of residence based on Article 21(1) TFEU where the grant of such a right is necessary to ensure the effective exercise by the EU citizen concerned of his freedom of movement and of the rights which Article 21(1) TFEU affords him (the right to lead a normal family life, together with family members, in the host Member State).
EU nationals must be able to continue to enjoy their right in the host Member State, after they have acquired the nationality of that Member State in addition to their nationality of origin. They must be capable of building a family life with their third-country-national spouse, by means of the grant of a derived right of residence to that spouse.
Otherwise, it would be contrary to the logic of gradual integration in the host Member State because EU citizens will be deprived of the right to a normal family life in the host Member State as they have sought, by becoming naturalised in that Member State, to become more deeply integrated in that State.
It was presumed that former Home Secretary Theresa May is the Prime Minister of the United Kingdom who will trigger the Article 50 of the Lisbon Treaty.
Suggestions for EU Nationals in the UK:
EU, EEA, Swiss Citizens, and their family members who do not have EU/EEA Permanent Residence Card for the UK should start to consider to apply.
EU, EEA, Swiss Citizens and their family members who have been living continuously for 5 years and exercised their Treaty Rights are eligible to apply for Permanent Residence Card according to EU law, and it is also possible to apply for both Permanent Residence Card and Naturalisation as a British Citizenship at the same time if qualifying individuals have been living continuously in the UK for at least 6 years.
Those who are not eligible to apply for Permanent Residence Card can apply for a registration certificate, which will confirm that they exercise extended rights of residence and ensure that they have sufficient evidence of exercising their treaty rights.
It should be noted that it will take at least two years for the UK to leave EU from when notice is given under Article 50 of the Lisbon Treaty.
However, EU, EEA, Swiss Citizens and their family members are advised to look into the main areas of concerns, which need to be scrutinised and opportunity costs should be evaluated.
Leave Camp won by 52% to 48% where more than 30 million people voting. Once Article 50 of the Lisbon Treaty is invoked, the two-year process of negotiating will start in regards to a new trade relationship with UK’s former partners.
Once the UK officially leaves EU, EU Nationals most probably will require the valid leaves to enter the UK, thus we advise to apply for Permanent Residency in the UK when there is still time to do so.
Please contact us to discuss further if you have any further queries in the meantime.
Administrative Review is for assessing whether the original refusal was incorrect based on the evidence supplied initially. Under the new rules, additional evidence can now be submitted in certain circumstances according to paragraph AR2.4 of Appendix AR, only if the case worker has made an error (defined in AR2.11(a) or (b)).