07:47, May 30 1279 0 theguardian.com

2017-05-30 07:47:02
UK wrong to deny residency rights in test case, EU's legal adviser says

The Home Office was wrong to deny the Algerian husband of a dual British-Spanish citizen the right to live with her in the UK, according to the initial opinion of the European court of justice’s advocate general in a test case.

In the AG’s official “opinion”, Toufik Lounes does have the right to remain in the UK even though his wife, Perla Nerea García Ormazábal, became a British citizen in 2010 – a change in status that it had been claimed meant she had lost the right she had previously enjoyed to bring her family to the UK.

The panel of 15 judges will hand down its final ruling on the matter this summer. The judgment will then be considered by a high court judge, who referred the Lounes case to Europe last year.

The Home Office had argued that the woman’s freedom of movement rights, which enable EU citizens to live with their family in any other state within the EU, had fallen away once she naturalised. The advocate general, Yves Bot, agreed that this appeared to be the case under the European directive 2004/38 on freedom of movement, but found that García Ormazábal had legacy rights as an EU national.

The rights she used to reside in the UK continued to apply even though she had become a British national subsequently, under article 21 of the superior and overarching treaty on the functioning of the European Union (TFEU), he found.

“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,” said Bot.

The opinion is not the final word on the case, with a full ruling yet to be arrived at by the panel of the grand chamber, which heard the case earlier this month.

However, it is seen as a significant step in a case that could have widespread implications for all EU citizens applying for British passports and those married or considering marriage to a third-country national.

The case was referred to the European court by the high court in London last year after the Home Office rejected an application by Lounes for permanent residency in the UK on the basis that his wife remained an EU national as a dual British-Spanish citizen.

The Home Office had argued that García Ormazábal’s rights under the freedom of movement directive no longer applied because she had become a British citizen in 2010.

They argued that instead, domestic immigration laws applied and therefore he was not entitled to apply for permanent residency under EU legislation.

Bot sided with the Home Office in part of his opinion, which centres on the complex interplay between domestic and EU law. He found that she did not have rights under the 2004/38 freedom of movement directive.

In his opinion Bot said: “García Ormazábal 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 member state of which his spouse is now a national.

“Her legal situation has profoundly altered, both in EU law and in national law, on account of her naturalisation.”

But he found that “although it is for each member state to lay down the conditions for the acquisition and loss of nationality, that competence must be exercised having due regard to EU law and the national rules in question must have due regard to EU law”.

“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 said.

Lounes came to the UK on a six-month visitor visa in 2010 and illegally overstayed, according to the high court ruling on the case last year.

The high court judges referred the matter to the European court for future clarity on the complex interplay between European treaties, directives and British legislation.

They described it as a “test case” and stayed its judgment pending the European court’s interpretation of the law. They heard that in 2013 Lounes formed a relationship with García Ormazábal and the couple married on 16 May 2014.