According to Advocate General Bot , , a non EU national may benefit from a right of residence in the Member State in which his EU citizen family member resided before acquiring the nationality of that Member State and developing a family life there In order to guarantee the effectiveness of the rights conferred by citizenship of the EU the conditions for the grant of that derived right of residence ought not, in principle, to be stricter than those laid down by the free movement directive.
Mr Toufik Lounes, an Algerian national entered the UK in 2010 on a 6 month visitor visa and subsequently overstayed. MsGarcía Ormazábal, a Spanish national, moved to the UK as a student in 1996 and began working full time in the UK in2004. She became a naturalised British citizen in 2009. In April 2014, Mr Lounes and MsOrmazábal married. Following their marriage Mr Lounesapplied to the Secretary of State for the Home Department for the issue of a residence card as a family member of an EEA (European Economic Area) national. On 14 May 2014, he was servedwith a notice, together with a decision to remove him from the UK, on the grounds that he had overstayed in that State in breach of immigration controls. In addition, by letter of 22 May 2014, the Secretary of State for the Home Department informed Mr Lounes that his application for a residence card had been refused. The letter stated that, in accordance with UK law, Ms Ormazabal was no longer regarded as an EEA National as she had acquired British nationality and consequently she was no longer entitled to rely upon the rights conferred by the Directive on freemovement.
Mr Lounes brought an action before the High Court of Justice and having doubts about the compatibility of UK Legislation with EU, the High Court sought a ruling on the question.
The opinion confirmed that although it is for each member state to lay down the conditions for the acquisition of nationality, that competence must be exercised having due regard to EU Law. The Advocate General concluded that the rights conferred by Article 21(1) of the TFEU demands that EU Citizens should be able to continue family life they have until then led with their spouse in the member state whose nationality they have subsequently acquired. The conditions for granting a derived right of residence to a 3rd country national , a member of the family of an EU national should not, in principle, be stricter than those laid down by the Directive. See Press release here.
The Grand chamber will now proceed to consider the opinion with a view to issuing final judgement.