Case could mean EU citizens who become British citizens and keep dual nationality may be unable to bring family members to UK
Judges at the European court of justice have gathered to rule on a landmark case that could have widespread implications for all EU citizens applying for British passports.
The court in Luxembourg will consider whether the British government has breached the family rights of a dual British-Spanish citizen seeking to have her Algerian husband live with her in the UK.
In a rare sitting, the full panel of 15 judges met to hear the arguments of the British government and of the Spanish woman in the Grand Chamber on Monday after the case was referred there by the high court in London last year.
Such is its significance that Spain and Poland, as well as the UK home secretary, also made legal submissions.
The case was brought following a decision by the Home Office to refuse a dual British-Spanish citizen the right to have her husband, an Algerian citizen, live with her in the UK.
She had come to the UK exercising her rights under the European treaty on freedom of movement. She settled in the country, acquired permanent residence and then applied and acquired British citizenship. However, she also retained her Spanish citizenship, which she believed enabled her to have her husband, Toufik Lounes, join her.
He applied for a residence card using her automatic right to bring a family member into the country. The Home Office refused his application on the grounds that she could not rely on her EU freedom of movement rights, which include the right to bring in a family member, as she was a British national as well as an EU national.
She took the Home Office to court, but last March the high court referred the Lounes case to Europe asking the court to decide whether that was lawful.
While British nationals can bring in family members from non-EU countries provided they meet certain UK immigration law criteria such as having a minimum amount of wealth, this case is not challenging those laws. Instead it is focused on EU laws that allow any individual who moves to a different EU country to do so with their family including adult dependents.
Parminder Saini, an immigration barrister and counsel for Lounes, said the case would be a milestone in the interplay between EU law and European case law on free movement and the UKs domestic interpretation of that law.
He said it would have wider implications for every EU state as it concerns the ability of any EU member state to curtail freedom of movement rights under their domestic law.
If the Home Office wins, it would pave the way for other EU member states to act in a similar fashion if they so wish. It would also mean that EU citizens who become British citizens and retain dual nationality may have the freedom to bring family members to the country curtailed.
If the UKs interpretation of the law is correct, it shall mean that all EU nationals living in the UK, who have also acquired dual British nationality, will no longer be able to rely on their free movement rights after gaining British nationality, as they will no longer be recognised by the UK as EU citizens in that context, said Saini.
Colin Yeo, an immigration barrister who has written about the case in his Freedom of Movement blog, said the Home Office was relaxed about dual citizenship until a case in 2011 when a British woman tried to bring in her Jamaican spouse arguing that she had freedom of movement rights to bring in family members.
Shirley McCarthy was born in the UK and had always resided in the country, but applied to become an Irish national with her Irish ancestry. She applied for a residency permit as an Irish national wishing to live in the UK under EU law and then advanced the argument that under EU freedom of movement laws she had the right to have her husband join her in the UK.
The European court of justice rejected that argument, ruling that the 2004/38 freedom of movement direction did not apply to an EU citizen who has never exercised his right of free movement, who has always resided in a member state of which he is a national and who is also a national of another member state.
At this point the Home Office started to take the view that EU law rights are instantly lost the moment an EU national becomes British, said Yeo.
Mondays case in Luxembourg is being keenly watched by immigration barristers. In the current Brexit climate many EU citizens are considering whether taking on British citizenship is the way to secure their right to stay in the country if the government does not secure a deal on their rights.
This case will confirm whether that means they will be stripped of other rights as a result of doing so.
The preliminary opinion of the advocate general of the European court is due on 30 May, with the Grand Chambers judgment to be published in the summer.