by Laura Morales
The Court of Justice of the European Union — CJEU — has come out, once again, in defence of the human rights of European nationals. In November 2017, the CJEU overruled the UK High Court, and confirmed that European nationals can retain the rights conferred to them by EU law after acquiring a second European nationality, as long as this second nationality was acquired by exercising their free movement right.
Facts of the case
Ms Perla Nerea Garcia Ormazabal is a Spanish national who originally moved to the UK in 1996 to study. Following her studies, she decided to stay to work and has been employed full time since 2004. In August 2009, she became a British citizen and retained her Spanish nationality. Mr Toufik Lounes is an Algerian national who originally entered the UK in January 2010 with a tourist visa valid for six months. Once his visa expired, he remained in the UK as an over-stayer. Ms Ormazabal and Mr Toufik met and started a relationship in 2013 and got married in May 2014. After their wedding, Mr Toufik submitted an application in the UK for a residence card. The application was submitted under EU law, but it was refused. The Home Office decided that since becoming a British citizen Ms Ormazabal could no longer be considered an EEA national, therefore Mr Toufik could not apply for a residence card under EU law.
The Directive 2004/38 confers what’s known as “free movement right” to EEA nationals. This enables citizens of EU nations to move to other states within the union to work and live freely. Family members who themselves are not EEA nationals have the right to accompany their EEA-national relatives while these relatives are exercising their free movement right. The Directive does not confer any rights to EEA nationals, or their family members, while they are living in their home country. The scope of the Directive, in its application to the family members of EEA nationals who are residing in their home nation, has been clarified in cases such as McCarthy v UK. Prior to Lounes, the CJEU established in McCarthy v UK that EEA nationals who had never exercised their free movement right cannot benefit from the Directive. Furthermore, the CJEU has re-confirmed this principle in other European cases like O and B and Chavez Vilchez. It is worth mentioning that McCarthy is fundamentally different to Lounes. Both cases deal with British/European nationals and both live in the UK. However, in McCarthy, we have a British national who never exercised her right to free movement and acquired her Irish citizenship on the basis of her ancestry. In Lounes, we have a British national who moved from Spain to the UK and acquired British citizenship through the exercise of her free movement right. Nevertheless, after McCarthy in 2014 the Home Office denied rights conferred by the Directive to family members of EEA nationals who acquired British Citizenship through exercising their free movement right. The judgement in Lounes changes this.
Judgement from the Court of Justice of the European Union
The CJEU took a different approach than British Courts. Following the advisory opinion of Advocate General Yves Bot, the CJEU decided that Mr Lounes is entitled to apply for a residence card under EU law, just as any non-EEA family member of an EEA national exercising their free movement rights is able to do. Contradicting the UK’s judgement, the CJEU held that the precedent of McCarthy should not apply to someone in Ms Ormazabal’s situation. They held that Ms Ormazabal should not be treated exclusively as a British national. In their view, the fact that she acquired her British citizenship through the exercise of her rights under the Directive had to be acknowledged. The precedent that has now been set is that the rights granted by the Directive should not cease to apply once an EEA national has become a dual-national by acquiring the citizenship of a host Member State after having exercised free movement right.
The judgement in Lounes is particularly important because it allows European nationals to continue using EU Law to bring family members with them to the UK after acquiring British citizenship. To understand the significance of this ruling, it is important to be clear on the differences between EU and British Immigration law.
Currently, to bring a family member into the UK under EU law, the EEA national only needs to show that he/she has acquired permanent resident status or that he/she is a Qualified Person using his/her “free movement right”. To be a Qualified Person, an EEA national has to be either a worker, self-employed, student, self-sufficient or a jobseeker. There is currently no fee to apply for a family permit (entry visa) for a family member. Once in the UK, the family member would need to apply for a residence card — once granted, this would be valid for 5 years. The price of this second application is £65. At the end of the 5-year period, providing the EEA national has been a Qualified Person during this time, the family member would have the right to apply for a permanent residence card — the price of this third application is also £65. This is the final step in becoming a permanent resident in the UK. The total cost of this process is £130.
Since July 2012, bringing family members into the UK under British Law has become far more difficult. First, applicants now have to meet the financial requirement, which is very difficult for most and simply impossible for many. To meet this requirement the British national — the sponsor of the applicant — has to demonstrate that he/she is earning over £18,600 a year (an additional £3,800 for the first non-British child is required, and £2,400 for each non-British child thereafter). This amount is not negotiable. Whether the applicant and the sponsor are going to live in Mayfair London or a small town in the north of Scotland has no bearing whatsoever on the financial requirement. Also irrelevant is whether or not the sponsor is a homeowner in the UK. If the sponsor cannot meet the financial requirement using income from employment or self-employment, there are other routes. For instance, the applicant and/or the sponsor can meet the financial requirement using savings only. To do this, they will need to show that the sum of their savings, for the six months prior to the submission of the application, amount to a minimum of £62,500. If they cannot meet the financial requirement the application will simply be refused. The financial requirement has been challenged a number of times in the Supreme Court, most recently in MM and others v Home Office, but the judiciary, once again, sided with the Government, recommending only that the rules be amended in cases involving children.
The financial requirement is not the only significant hurdle. Under UK Immigration law, application fees are extremely high. Since 6th April 2018, the application fee for a 2.5-year entry visa, one which allows the applicant to join a British family member in the UK, is £1,523. On top of this fee, there is a £600 compulsory contribution towards the NHS known as the “immigration health surcharge” (IHS). Many applicants from non-English speaking countries also have to comply with the English requirement, which amounts to passing a compulsory A1 English exam that costs at least £150. Following a 2.5-year stay in the UK, applicants have to apply for further leave to remain (the application fee is £1,033, and the IHS fee is £500). At the end of the 5-year period, they may at last be entitled to apply for settlement (the application fee is £2,389, plus, in most cases, a more advanced English exam and an additional ‘Life in the UK’ exam must be passed which together cost £200). Therefore, it will cost over £6500 for a family member of a British national to settle in the UK. This does not take into account the yearly increases to the fees or the legal help that may be required to submit these complex applications. Furthermore, quite recently, the Government announced its intention to double the IHS, which would significantly increase the total cost.
Additionally, the number of family members that you can bring to the UK under EU law is considerably larger than under UK law. Under EU law you can bring spouses, civil partners or unmarried partners; children of any age, as long as they are dependent on the EEA national; grandchildren; parents; grandparents; siblings; nephews/nieces; aunts/uncles; cousins; and, quite often, other extended family members, as long as they are part of the EEA-national’s household. Under UK law you can only bring spouses, civil partners or unmarried partners; minor children and, under very exceptional circumstances, adult dependent relatives (ADR) that require care. The threshold of evidence required for ADR applications’ is so high that it is nearly impossible to meet, and although these rules have been challenged, the Court of Appeal has repeatedly sided with the Government. In a recent review, the Home Office confirmed the rules for applications surrounding ADR will not be changed.
The hardship of the UK Immigration rules to bring family members to the UK is such that many have opted for voluntary exile, many more families are being separated and some others have decided to move to Europe to be able to benefit of the Surinder Singh immigration route.
A strong argument can be made that the UK Government has failed to uphold the protection granted by Article 8 of the ECHR to family life. It is absurd that a family member of an EEA national has only to spend £130 to settle in the UK, while a family member of a British national must spend over £6,500 to do the same. However, the incredibly expensive fees are not the only issue. Perhaps as important is the extremely stressful process that families are being subjected to under UK Immigration law.
Furthermore, EU law provides far more protection to EEA nationals that have exercised free movement rights than Article 8; the rights provided by EU law are far more extensive. The disproportionate higher protection granted under EU law is foreseeable because the Directive 2004 was drafted not only to protect the rights of EU nationals but to promote their free movement.
Before Lounes, some EEA Nationals decided not to acquire British citizenship once they became aware of the implications it could have for them and their family members. The Lounes judgement has therefore been welcomed by EEA nationals. The British Government has repeatedly failed to provide EEA nationals with clarity about their status and rights given the ongoing Brexit negotiations. It remains unclear what Lounes will mean for EEA national post-Brexit. It may be that acquiring British citizenship turns out to be the best way to guarantee one’s right to remain. Given this, it is no surprise that applications for British citizenship from EEA nationals had significantly increased since the referendum. Nevertheless, whatever may happen in the UK, the judgement in Lounes will continue to benefit the vast majority of Europeans, and their family members, living and naturalizing in a Member State other than their own.
We are yet to see if the judgement in Lounes will be of any help post Brexit, but, at least until December 2020, EEA nationals can safely apply for British citizenship and still be protected by the Directive in the UK.