A third-country national, who is a member of the family of an EU citizen, may be granted right of residence in the member state in which this citizen lived before obtaining the nationality of that state, the European Court of Justice said in a ruling delivered on Tuesday 14 November (case C-165/16).
Mr Toufik Lounes, an Algerian national, entered the United Kingdom in 2010 on a six-month visitor visa and then overstayed illegally. In 2014, he married Ms Perla Nerea García Ormazábal, and Spanish national who had been living in the United Kingdom since 1996, firstly as a student and then in full-time employment since 2004. García Ormazábal acquired British nationality in 2009. Following their marriage, Lounes was refused a residence card as a member of the family of a European national and was issued with notice that he was to be expelled.
In response to questions from the High Court of Justice of England and Wales, the Court adopted the reasoning of Advocate General Yves Bot (see EUROPE 11798). It notes that the directive (2004/38) does not confer autonomous rights to non-European members of the family of an EU citizen, only derived rights. The only beneficiaries of the rights conferred by the directive are EU citizens who have moved to or reside in a member state other than that of which they are nationals and their family members.
The Court said that, since García Ormazábal acquired British citizenship, the directive has ceased to govern her residence in the United Kingdom. This conclusion is not called into question by the fact that García Ormazábal has retained her Spanish nationality. Consequently, Lounes cannot benefit from a derived right of residence in the United Kingdom on the basis of the directive.
However, the Court considers that Lounes should be granted right of residence on the basis of Article 21(1) TFEU. It says that granting a right of residence to Lounes is necessary in order to ensure the effective exercise by García Ormazábal of a normal family life in the host member state with their family members, even after acquisition of British nationality.
Any interpretation to the contrary would amount to treating García Ormazábal in the same way as a British citizen who has never left the UK, disregarding the fact that she has exercised her freedom of movement and that she has retained her Spanish nationality. The Court adds that García Ormazábal would be deprived of the right to normal family life on the grounds that, through her naturalisation, she sought to become more deeply integrated in the United Kingdom. (Original version in French by Mathieu Bion)