Dual British/European nationality – still not always easy

Some while ago in 2017 the CJEU (Court of Justice of the European Union) made a favourable decision about European/British dual nationals. The CJEU is the supreme court for EU law matters, and its decisions are binding on the national courts and decision-makers of the EEA countries in relevant legal areas.

The court, in a case called “Lounes”, decided that Ms Ormazabal, a Spanish national who had come to the UK and had after some years also acquired British citizenship, could still rely on EU legal rights and her non-EEA husband was thus entitled to an EEA residence card.

The Home Office had rather uncharitably decided that the fact of her having also acquired British citizenship stopped her from taking advantage of EU law but the CJEU (in a slightly complicated judgement) said that the Home Office was wrong. This of course was a very encouraging result for some European/British dual nationals.

But a new somewhat similar case called “Kovacevic” recently reached the UK Upper Immigration Tribunal. Ms Kovacevic is a Croatian national who came to the UK before Croatia became a member of the EU on 1 July 2013, so of course she did not come here under EU free movement law. But on 1 July 2013 she became an EU national, and in 2007 she also became a British citizen and thus a dual national.

Like Ms Ormazabal she wanted her non-EEA husband to have an EEA residence card and so, you might think, her position would be similar to that of Ms Ormazabal and he would be able to get it.

So her husband applied for an EEA residence card, and Ms Kovacevic also applied for an EEA registration certificate for herself. But the Home Office refused her husband’s application and – in an episode of evident indecisiveness – initially granted her application for an EEA registration certificate but subsequently changed their decision and revoked it. In both cases the Home Office employed similar reasoning to that it employed in the Lounes case.

The parties appealed and the case eventually reached the Upper Immigration Tribunal (UT). The hope was that the UT would reach a similar kind of decision that the CJEU had reached in the Lounes case, ie a nice one. As explained above, the UT is bound by decisions of the CJEU.

But the Tribunal did not oblige, because they identified a crucial difference between Ms Ormazabal’s case and Ms Kovacevic’s. Ms O had originally come to the UK under free movement principles and EU law, whereas Ms K had come under the immigration rules and British law. This, the Tribunal decided, prevented Ms K from taking advantage of EU law vis-à-vis her and her husband’s applications.

To be just a little bit technical, Ms O and her husband had been able to take advantage of the Treaty on the Functioning of the European Union (TFEU), which says in most relevant part that:

 “Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States”.

 This sounds good, because the Treaty must be interpreted broadly and purposively, and these words might rather imply that family members of EEA citizens – whatever their nationality – should also have such rights, otherwise the right to move and reside would be rendered not strongly meaningful. Most people (although there are exceptions) like to be with their family members. And so the CJEU helpfully reasoned in Ms O’s case.

But the UT – relying substantially on previous decisions of the CJEU, including the case of Lounes itself  – found that because Ms K had not previously exercised EU free movement rights she could not avail herself of the TFEU. This was the crucial difference.

There was, we have to say, a certain logic in the Tribunal’s decision, and it is probably not eminently challengeable. But of course the decision must have been very disappointing for the parties, particularly because, at first glance, the case looked so similar to the Lounes case.

But there we are. These European dual nationality cases can be tricky, and if you find yourself in this kind of situation you are well advised to take good legal advice.

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