Brexit is expected some time in 2019 but, as far as we know, European free movement rights will continue up until that point. So, for the moment, litigation in the European legal field carries on as normal.
As is well known, EEA nationals living in the UK and exercising Treaty rights can bring their family members into the UK, even if such family members are not EEA nationals.
Or can they? Well, as a primary and general principle they can. But what if the EEA national has also acquired British citizenship and thus holds dual European/British citizenship? Well, according to the Home Office then No, they can’t.
This Home Office understanding came about several years ago, as a result of a case called “McCarthy” heard by the European Court of Justice (as it was then known), and it was a case that was British in origin. This case dealt – very basically – with the subject of someone who was attempting to rely on European legal rights, although they had never physically been to the European country in question.
The Home Office interpreted this case to mean that an EEA national who had also acquired British citizenship could not rely on European legal rights to bring their family members to the UK, and they consequently changed the British EEA Immigration Regulations accordingly. But some people thought at the time that the Home Office view was not a correct reflection of the ECJ’s decision and that the Immigration Regulations were therefore not properly lawful.
This subject is now being revisited by the ECJ (which has, in the intervening years, changed its title to the probably more impressive-sounding “Court of Justice of the European Union” (CJEU)).
The facts of the case are this. A Spanish lady, Perla Ormazabal, came to the UK and exercised Treaty rights. After some years she acquired British citizenship, and she retained her Spanish citizenship, and thus she became a dual national. Her husband Toufik Lounes is an Algerian national and he applied to the Home Office for an EEA Residence Card on the basis of the relationship. Not altogether surprisingly the Home Office refused the application.
The matter reached the High Court in a Judicial Review application but the Court, in the person of Mrs Justice Lang, was not inclined to make a decision. She decided that a decision from the CJEU was required in order to settle the matter and she thus referred a question to the CJEU. (This is a standard procedure in cases involving European law.)
The question referred very simply asked whether a EEA national in the position of Mrs Ormazabal, who comes to the UK, exercises Treaty rights and ultimately acquires British citizenship and thus dual nationality, is entitled to have her non-EEA family members granted status under European law; and this surely reflects the unease in the legal profession as to whether the Home Office interpreted the case of “McCarthy” correctly when it amended the EEA Immigration Regulations.
The CJEU evidently considers this to be an important case, and it will be heard by the full chamber of 15 judges. At the moment it is only the UK that has the rule about dual nationality. If the Court decides that the rule is unlawful under European law then the Home Office will have to abandon it. But if the Court decides that the rule is an acceptable understanding of European law then other EEA states will be able to apply such rules.
The decision from the Court is expected in the next few weeks, and many people who may be affected – as well as some lawyers – are waiting for the decision with bated breath. We will keep our readers informed about this.