Professor Steve Peers

A fundamental principle within EU law concerning the freedom of movement posits that it primarily pertains to EU citizens residing in a Member State different from their home country. Consequently, EU citizens residing in their own Member State cannot generally invoke this law. However, ECJ case law sometimes permits them to assert rights based on their EU citizenship.

This begs the question: what happens to citizens of two Member States? If residing in one of their countries of citizenship, they appear to exist in a legal gray area. They simultaneously qualify for and are excluded from free movement rights. The ECJ’s 2011 ruling in McCarthy established that a dual UK-Ireland citizen residing in the UK couldn’t claim rights based on free movement law or EU citizenship. Yet, this verdict’s basis remains unclear – was it solely due to her dual citizenship or because she hadn’t moved between Member States?

The ECJ’s recent judgment in Lounes provides clarification on this crucial point. The case involved a Spanish citizen who moved to the UK, subsequently obtaining UK citizenship and marrying a non-EU national. Invoking free movement rights for her spouse’s residency, she faced opposition from the UK government, which, following McCarthy, argued that UK law, not EU law, applied, leading to stricter family reunion rules.

The ECJ determined that she couldn’t utilize free movement rights (including family reunion rules) found within the EU citizens’ Directive as a UK citizen residing in the UK. However, the Court affirmed her ability to invoke EU citizenship based on the Treaties. In this context, she was still considered a Spanish citizen who had relocated within the EU. While Treaty citizenship provisions lack specific family member regulations, the Court emphasized that she deserved equal treatment to those under the Directive, highlighting the injustice of facing harsher conditions than a Spanish citizen who moved to the UK without acquiring citizenship.

Essentially, dual citizens of two Member States moving within the EU constitute another exception to the rule restricting EU citizens from claiming free movement or citizenship rights against their home Member State. They join other exceptions like EU citizens returning home after moving to another Member State (Surinder Singh), EU citizens engaged in economic activity outside their State of nationality (Carpenter), and EU citizens residing in their home Member State facing potential expulsion from the EU due to a non-EU parent’s expulsion (Ruiz Zambrano).

Comments

The Court’s judgment in Lounes raises several points of contention. Firstly, does it solely apply if the EU citizen acquired their second nationality after relocating to that Member State? The ruling appears to suggest this, yet denying the same rights to those who acquired it earlier, such as through marriage or birthright, would be illogical. Of course, relocation within the EU remains a prerequisite for invoking EU citizenship rights.

Another question arises concerning individuals who relinquished one Member State’s citizenship upon acquiring another. The Scholz case suggests they retain rights, although its decision was grounded in free movement, not citizenship rights.

For dual citizens under the Lounes ruling, do all rights stemming from the citizens’ directive apply analogously? Acquiring permanent residence presents a particular challenge, as the Alarape case implied that only those directly covered by the citizens’ Directive could attain it. While this wouldn’t apply to Ms. Lounes as a UK citizen, her non-EU spouse’s eligibility remains unclear. Notably, Alarape compared those covered by the EU citizens’ Directive with those under a separate Regulation, not the Treaties. Given the Court’s emphasis on the citizens’ Directive’s analogous application in Lounes, the permanent residence rules might still apply.

Lastly, post-Brexit implications for dual UK-Member State citizens arise. For pre-Brexit Day movers, the withdrawal agreement’s (if any) guarantee of continued ECJ case law application on this matter needs examination, especially since family reunion remains a point of contention between the UK and EU27. For arrivals within a potential transition period, the question becomes whether the agreement also guarantees the full application of EU laws and case law. For those arriving post-transition, any UK commitments on this issue and the potential application of solely UK law, with stricter family reunion rules, require consideration. Absent a UK-EU27 agreement on this, the UK’s more restrictive rules would apply unless altered by subsequent elections. Notably, UK citizens residing in Spain currently can’t acquire Spanish nationality.

Individuals with dual nationalities seeking a life with a third-country national expose the stark contrast between immigration law’s rigidity and the human need for family unity. Only time will tell if Brexit will unravel the unions that EU law has brought together.

JHA4: chapter I:6

Barnard & Peers: chapter 27, chapter 13

Photo credit: thinkSPAIN