Judgement of Toufik Lounes, The Court of Justice of the European Union, Case C-165/16

On 14 November 2017, the Court of Justice of the European Union (“CJEU”) issued it's preliminary judgement in the case of Toufik Lounes v Secretary of State for the Home Department, Case C-165/16. This decision will have implications for non-EU national family members of EU nationals who hold British nationality.

You can read a background through an earlier post when this case was initially referred to the CJEU. In brief, Mr Toufik Lounes (“Mr Lounes”) an Algerian national entered the UK in 2010, as a visitor and subsequently overstayed. Ms Ormazabal, a Spanish national had moved to the UK in 1996 as a student had worked since 2004, thereby exercising EEA Treaty Rights and in 2009 became a British citizen.

In 2014 the couple married, and Mr Lounes applied for a residence card, as the family member of an EEA national. On 22 May 2014, the Home Office refused Mr Lounes’s application on the basis that Ms Ormazabal had ‘ceased’ to be an EEA national, on acquiring British nationality.

The CJEU held:

Directive 2004/38/EC (“Directive”) does not ‘confer any autonomous right on family members of an EU citizen who are non-EU nationals, but only rights derived from the rights which the EU citizen concerned enjoys as a result of having exercised his freedom of movement’.

The court noted that the Directive 'is not intended to govern the residence of an EU citizen in the Member State of which he is a national'. Therefore, the Directive regulates whether an EU national can reside in a Member state other than his own and does not ‘confer’ derived rights of residence to non-EU family members in the Member state, that the EEA national is a citizen of.

The court then turned to Article 21 (1) of the Treaty on the Functioning of the European Union (“TEFU”) and found 'every citizen of the EU has the right to move and reside freely within the territory of the Member States. In certain circumstances an individual may be eligible for a derived right of residence based on Article 2 (1) TFEU to ensure the effective exercise, by the EU citizen concerned, of his freedom of movement’.

Although the CJEU agreed with the Home Office through point one - that national laws of a citizen’s nationality take precedence, where there is no exercise of Treaty Rights, the situation is different when there is.

Interestingly, the court based its decision on Article 21 (1) of the TFEU and concluded that there may be a derived right of residence where there has been an exercise of freedom of movement. The court’s rationale being that an EEA national who has uprooted his life, exercised EEA laws and has integrated into another Member would have their rights reduced, if they were unable for example, to be able to live with non-EEA family members.

The reference to the TFEU shows the CJEU willingness to look at primary laws to base a decision.

For those who currently have applications or appeals pending, it is worth requesting the Home to reconsider their case.

Potential applicants – the non-EEA family members of EEA nationals, will need to assess how the nationality of the dual British national family member was obtained, prior to submission of an application.

Importantly, post Brexit, the UK government may look to restrict the ability of non-EU family by not following this judgement. At present the Government’s position is that this will commence on 29 March 2019.

The judgement itself does not deal with Surinder Singh type cases, where the EEA national is a dual national.

RLegal is a firm of private immigration solicitors based in central London. We were established in 2002 and have many years of experience dealing with immigration related cases.

If you require assistance with an EEA related application for a family permit, residence card or permanent residence please contact us by clicking here, sending an email to info@rlegal.com or by telephone at +44 207 038 3980 and of our experienced immigration lawyers will respond to you.