The conditions for granting a derived right of residence to a third country national, a member of whose family is an EU citizen, ought not to be stricter than those laid down by the directive on the free movement of EU citizens, said Advocate General Yves Bot in an opinion delivered on Tuesday 30 May (case C-165/16).
Mr Toufik Lounes, an Algerian national, entered the UK in 2010 on a six-month visitor visa and then stayed on illegally. In April 2014, he married Ms Perla Nerea García Ormazábal, a Spanish national, who had moved to the UK first as a student in 1996 and then began working full time in the UK in 2004. García Ormazábal became a naturalised British citizen in 2009. After their marriage, Lounes had his application for the issue of a residence card as a family member of an EEA (European Economic Area) national rejected and was served with a notice, together with a decision to remove him from the UK.
In response to a request from the High Court of Justice (England and Wales) for a ruling, the Advocate General observes that there is an inextricable link between the exercise of the rights conferred on García Ormazábal by the directive on the right of citizens of the EU and their family members to move and reside freely within the territory of the member states (2004/38/EC) and her acquisition of British nationality. However, García Ormazábal’s legal situation has profoundly altered on account of her naturalisation: she no longer falls within the definition of a “beneficiary” within the meaning of the directive. It follows that her spouse is not eligible, on the basis of the directive, for a derived right of residence in the United Kingdom.
The Advocate General notes, however, that, under Article 21(1) TFEU, member states must permit EU citizens who are not their nationals to move and reside within their territory with their spouse and, possibly, certain members of their family who are not EU citizens. He refers, in this regard, to the Court’s case-law in accordance with which, in order to ensure the effectiveness of that article, the provisions of the free movement directive in the case of the return of an EU citizen to his member state of origin are to be applied by analogy.
In so far as, by choosing to be naturalised in the UK, García Ormazábal has expressed her wish to live in that state in the same way as she would be prompted to live in Spain, creating strong, lasting ties, ttherefore, the Advocate General proposes that that case-law should be applied by analogy to the present case.
Consequently, the Advocate General takes the view that the effectiveness of the rights conferred by Article 21(1) TFEU demands that EU citizens, such as García Ormazábal, should be able to continue the family life they have until then led with their spouse in the member state whose nationality they have acquired. Thus, Lounes should have a right of residence in the EU. (Original version in French by Mathieu Bion)