ExpatBriefing: European Court Rules In Major UK Immigration Case

Tuesday November 28, 2017.

By Hans Esser, for ExpatBriefing.com 28 November, 2017

Europe's top court has delivered a landmark ruling that will benefit married couples where one is an EU citizen who newly takes up citizenship in an EU country and their non-EU spouse seeks to join them.

The case concerned a Spanish citizen – Ms Ormazabal – who relocated to the UK and later decided to become a UK citizen, while retaining her Spanish citizenship. She married an Algerian national – Mr Toufik Lounes – and he applied for a residence card from the UK to join her, which was rejected.

The UK's High Court sought an opinion from the European Court of Justice (ECJ) as to whether that decision had been lawful.

The reason for the UK rejecting the request is relatively complex, concerning EU legislation.

The letter from UK authorities had argued that the EU's Free Movement Directive, which all member states must follow, no longer applied to Ms Ormazabal having acquired UK citizenship.

The Free Movement Directive (Directive 2004/38/EC), – on the right of citizens of the Union and their family members to move and reside freely within the territory of the member states – is basically intended to ensure EU nationals are not impeded from living where they chose within the EU, under not worse terms than would be afforded to a national of that territory.

However, the Directive limits its benefits to EU citizens who move to or reside in a "member state other than that of which they are a national," and these benefits extend to their family members who accompany or join them.

Since Ms Ormazabal had taken up UK citizenship, she was no longer "an EU citizen residing in a member state other than that of which [she] was a national," it was argued. That is, the UK, as her new home country, was no longer a foreign EU member state for her.

The European Court of Justice ruled against the UK, finding that Mr Toufik Lounes is entitled to benefit from Ms Ormazabal's right of residence in another state, and this right is not lost on her subsequent acquisition of the citizenship of that member state (in this case UK citizenship).

The Court reasoned that agreeing with the UK's decision would amount to treating an EU national in the same way as a British citizen who has never left the UK, disregarding the fact the EU citizen, in this case, had exercised her freedom of movement by settling in the UK and retaining her nationality of origin.

The Court also said it would be contrary to the aim of the directive to deprive EU citizens of the right to a normal family life in another member state because they have sought, by becoming naturalized in that member state, to become more deeply integrated in that state.

The decision of the European Court of Justice is of significance because UK nationals must currently earn at least GBP18,600 (USD24,579) per year before they can obtain a UK spousal visa for a non-EU spouse and there are also other onerous requirements. The decision means the normal spousal visa rules applying to UK citizens do not apply where an EU citizen has made their home in the UK and subsequently acquired UK citizenship and seeks to have their spouse join them.

The European Court of Justice decision is also notable because it adds to the existing "Surinder Singh" exception, which allows a UK national who has lived in another EEA state with their non-EU spouse, to obtain a UK spouse visa if they move back to the UK.

ExpatBriefing: European Court Rules In Major UK Immigration Case

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