Some good news for naturalised European Union citizens sponsoring third-country national family members

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The Grand Chamber of the Court of Justice of the European Union has confirmed today in the case of Toufik Lounes v the Secretary of State for the Home Department (C‑165/16) that European Union citizens who have exercised their free movement rights by moving to the UK and subsequently naturalised as British citizens are able to sponsor their third-country national family members to enable them to obtain a right of residence in the UK.

It has, somewhat controversially, as in the Lounes case, been the UK's position that upon naturalising as a British citizen, an EU national would cease to be treated as a person exercising free movement and would instead be treated as a British citizen.  The UK has also not allowed dual British and EU nationals to 'elect' to be treated as an EU national where they have also possessed British citizenship.

The CJEU has confirmed however that the right of residence conferred upon a third-country national in this type of scenario will be limited, insofar as it will be what is known as a 'derivative right of residence', derived not from the Citizens Directive (Directive 2004/38) which governs the majority of situations, but from the Treaty of the Functioning of the European Union.  

The CJEU held that:

"... in a situation in which a citizen of the European Union (i) has exercised his freedom of movement by moving to and residing in a Member State other than that of which he is a national, under Article 7(1) or Article 16(1) of that directive, (ii) has then acquired the nationality of that Member State, while also retaining his nationality of origin, and (iii) several years later, has married a third-country national with whom he continues to reside in that Member State, that third-country national does not have a derived right of residence in the Member State in question on the basis of Directive 2004/38. 

The third-country national is however eligible for a derived right of residence under Article 21(1) TFEU, on conditions which must not be stricter than those provided for by Directive 2004/38 for the grant of such a right to a third-country national who is a family member of a Union citizen who has exercised his right of freedom of movement by settling in a Member State other than the Member State of which he is a national."

Other types of derivative rights of residence include 'Zambrano' carers and 'Chen' scenarios.  Whilst a derivative right of residence allows lawful residence in the UK and enables lawful work and study, the UK Home Office's current position is that it will never lead to permanent residence.  So unlike those exercising free movement rights derived from the Citizens Directive who can usually acquire permanent residence after 5 years, those with derivative rights of residence will not.  The Home Office's current position is also that even after 10 years of residence, discretion will not exercise under the domestic long residence immigration rules which normally allow an application to be made for indefinite leave to remain after 10 years of continuous lawful residence.

So whilst this judgment is very much welcomed by practitioners and no doubt by EU citizens who have subsequently naturalised as British, it is as yet unclear how this will be implemented by the Home Office and what the long-term benefit (if any) will be for a third-country national obtaining a derivative right of residence.

Comment

John Vassiliou

John Vassiliou has worked with McGill and Co since 2010. His experience covers all aspects of UK immigration law, British nationality law, European Union law, the Refugee Convention, and the European Convention on Human Rights.