The original version of this article was updated following the decision in Lounes, November 2017. Please contact DavidsonMorris if you have any queries.
The curiosity in English law which saw non-EEA family members of EU nationals naturalising as British citizens subject to restricted rights to reside in the UK has been addressed.
In November 2017, the Court in Lounes found that if the rights given to EU citizens are to be effective and enable them to lead a normal family life with their family members, then they must be able to continue to enjoy those rights after acquiring new nationality in addition to EU nationality of origin.
Applying Article 21 of the treaty on the functioning of the European Union (TFEU), the naturalised EEA national should still be treated as an EEA national and their non-EEA family members should, by extension, continue to be eligible for derived rights of residence.
This applies where the EEA national has exercised their Treaty rights in the host state, i.e. the UK. As such, EEA nationals exercising their Treaty rights in the UK also acquire a right of residence for their family members.
Family Member of EEA National Naturalisation
The Immigration (European Economic Area) Regulations 2006 provide free movement rights within the UK to direct non-EEA family members of EEA nationals.
Under these Regulations, direct family members are entitled to an automatic right of residence which includes the right to work, be self-employed and access to a range of government benefits.
These rights will continue for as long as the person remains a family member of an EEA national who is either:
- residing in the UK for an initial period of three months;
- exercising his or her rights as a ‘qualified person’; or
- a permanent resident in the UK.
Which Family Members Benefit?
Only direct family members of EEA nationals can attain the right of residence.
The Regulations define direct family members to include:
- a spouse (husband or wife) or civil partner of an EEA national;
- direct descendants of an EEA national or their spouse or civil partner who are:
- under the age of 21; or
- dependants of an EEA nationals or their spouse or civil partner;
- dependant direct relatives in the ascending line of an EEA national or their spouse or civil partner.
Registration and Permanent Residence
The right of residence for EEA family members is automatic. There is no requirement to register with the Home Office.
However, non-EEA family members will usually require either a state residence card from Germany or Estonia, or an EEA family permit as proof of their status before entering the UK.
It is permissible under EU law for a person to prove their right of admission at the border without these documents as long as they are able to clearly evidence that they meet the relevant criteria.
Non-EEA family members can also apply for a residence card and, after five years of continual residence in the UK, a permanent residence card, as further proof of their right to reside, work and access benefits in the UK.
The Rights of Non-EEA Family Members of British Citizens
By comparison, the rights of non-EEA family members of British citizens are, in many instances, more restrictive.
British non-EEA family remembers are required to first make an application for a family visa before entry.
There are significant fees attached to these applications.
There are also additional criteria that non-EEA family members of a British citizen must fulfil in order to obtain a visa.
There is, for example, a strict financial requirement applicable to most UK family visa applications.
The rights granted to family members of UK citizens are also more restrictive than the broad ‘rights of residence’ granted to family members of other EEA citizens.
UK Naturalisation for EEA Nationals
Where an EEA national is naturalised as a British citizen, there is no requirement for the person to relinquish their EEA country citizenship.
Since the decision in Lounes, the anomaly that the person will no longer benefit from EEA Regulations and will instead be assessed under the law applicable to British citizens has been removed.
In many cases the EEA rights of residence can be more expansive and easier to qualify for than the equivalent rights that are granted to family members of British citizens.
In McCarthy C-434/09, the Court of Justice of the European Union held that the family members of British citizens who have never exercised their EEA right of free movement and residence in the UK, do not benefit from the Regulations, even if they hold dual nationality with another state.
Since McCarthy, the definition of ‘EEA national’ in the Regulations has been amended to exclude any EEA nationals who also hold British citizenship.
As the EEA national must have exercised their Treaty rights in the UK in order to acquire permanent residency in the UK and then nationality, if the person always lived in the UK with dual nationality and never exercised Treaty rights or used their EEA nationality then McCarthy might still apply.