European free movement rights and dual nationality

11 June 2017

Despite a rather indecisive general election result Prime Minister Theresa May and the Conservatives are still in power and Brexit is, it seems, still on track, just about. So, possibly as soon as early 2019, the UK will no longer be part of the EU.

But up until that point it is likely that Europeans and their family members will be able to take advantage of European free movement law so, for the moment, European free movement law continues to develop.

In any event, a few years ago, in 2011, European free movement rights in the UK suffered a blow. This was because of a court decision in a case called "McCarthy". This decision did not come from a British court: it came from the European Court of Justice (ECJ), which is the "supreme court" for European free movement law.

This was one of those cases that tests the boundaries of the law. The applicant in the case, Mrs McCarthy, had been born in and was resident in the UK but she also held Irish nationality, ie she was a dual British/Irish national. She had never been to Ireland but nonetheless she held Irish citizenship - as some people do - by way of entitlement.

She had married a Jamaican national, but he had no right to stay in the UK under British immigration law. However, he applied to the Home Office for an EEA Residence Card, on the basis that he was married to an European national in the UK and that therefore he could take advantage of European free movement law - the Republic of Ireland being of course an EU member state. This might seem rather counterintuitive (not least perhaps because Irish nationals in the UK are not really thought of as "Europeans"), but there was a kind of legal logic behind it, and previous decisions of the ECJ indicated that this principle might be a good one.

But the Home Office refused the application, partly on the basis that European law did not enable Mr McCarthy to take advantage of free movement principles. The Home Office decision was appealed and it eventually ended up with a reference being made to the ECJ, for them to make a binding decision on the issue.

In the event, however, the ECJ decided that this was a step too far, and they ruled that Mr McCarthy could not take advantage of European free movement law in the way that he and his wife had hoped. Crucial to their decision was the fact that Mrs McCarthy had not moved from Ireland to the UK - she was here already.

Some people thought this decision was unfair, but what happened next even more people thought was unfair: the Home Office consequently amended the EEA Immigration Regulations to make them more far more restrictive about dual nationals and free movement rights. The amended Regulations contained a blanket principle that if a European national in the UK also holds British citizenship then their family members cannot take advantage of European free movement rights - and this of course somewhat extended the principles established in the McCarthy case.

The EEA Immigration Regulations have a slightly peculiar character: they are British regulations written by British civil servants (which the immigration authorities will follow in their decision-making), but they are supposed to accurately reflect European free movement law. If they are deemed not to accurately reflect European law then they are deemed to be unlawful.

And, at last, the amended Regulations are now being tested in a new case in the European Court called "Lounes". This case concerns a Spanish lady, Mrs Ormazabal, who had come to live and work in the UK and who had eventually acquired British citizenship and thus dual nationality. Her Algerian husband, Mr Lounes, had made an application for an EEA Residence Card, which the Home Office of course refused.

This case was also appealed and in this case also a question was referred to the European Court. The question put was, in simplest terms: was it correct and lawful under European law that if a European national comes to the UK and acquires British citizenship and dual nationality their spouse could not take advantage of European free movement principles?

The full Court has not yet made its decision (only a preliminary decision has been made so far) and quite a lot hangs on it. If the Home Office’s decision is legal then we stay where we are. But if it is not legal then the Home Office will have to change the EEA Immigration Regulations. Readers will note that the facts in this case are not entirely the same as in the McCarthy case, but if the Home Office’s decision is found to be unlawful then to what extent it will have to change the Regulations will depend on the content and scope of the Court’s judgement, which is thus awaited with bated breath.

Garth Coates Solicitors