Derived right of residence: ”what is given with one hand would therefore be taken away with the other”

In potential landmark case (C-165/16), Advocate General Bot, enhanced the derived right of residence based directly on Article 21(1) TFEU.

The case at issue concerns a Spanish national, moved to the United Kingdom and later became a naturalised British citizen, while retaining her Spanish nationality, and her husband, an Algerian national, entered the United Kingdom on a six-month visitor visa and then overstayed illegally. The application for a residence card as a family member of an EEA national had been refused on grounds of national law in the UK. His spouse, was no longer regarded as an EEA national because she had acquired British nationality, even though she had also retained her Spanish nationality.

Advocate General Bot, observed that considering the case law on the ECJ, on the one hand, the Algerian national is not entitled “on the sole basis of the provisions of Directive 2004/38”, to a derived right of residence in the Member State of which his spouse is now a national, ,but on the other hand, “the effectiveness of the rights conferred by Article 21(1) TFEU demands that Union citizens, ____ who have acquired the nationality of the host Member State following and by reason of residence under and in conformity with the conditions set out in Article 16 of the directive, should be able to continue the family life they have until then led in that State with their spouse, a third-country national.”

Under Article 21(1) TFEU, and subject to its implementing measures, Member States must permit Union 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 Union citizens.

In Singh (C-370.90), in the context of derived right of residence to a third-country national, the ECJ identified the concept of EU citizen who exercised the right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national and return to his Member State of origin,

In O. and B.(C-456/12), the Court establishes the principle of a right for the Union citizen to return to his Member State of origin, in respect of which the conditions for granting in that State a derived right of residence to the third-country national who is a member of his family may not be stricter than those provided for by the Directive 2004/38.

In the present case and in the same context (i.e. derived right of residence to a third-country national), the Advocate General Bot, suggested a new concept: “Union citizens who have acquired the nationality of the Member State in which they have genuinely resided pursuant to and in conformity with the conditions set out in Article 16 of Directive 2004/38 and have during that period created a family life with a third-country national.”  (emphasis added).

The substance of rights invoked is the same: to grant the effectiveness of Article 21(1) TFEU the provisions of Directive 2004/38 should apply mutatis mutandis.

The situations are not similar. However, the ratio decidenti in the previous cases (if the third-country national had no derived right of residence, the worker, a Union citizen, could be deterred from leaving the Member State of which he is a national in order to pursue gainful employment in another Member State) and the suggested ratio decidenti in the present case (to continue the family life which she has started, the EU national would then be forced to leave that State to move to another Member State in order to be able to claim once again the rights conferred by Directive 2004/38), are both determined by the effectiveness of Article 21(1) TFEU.

Recalling the reference for a preliminary ruling made by the Upper Tribunal London in [Home Department v Rozane Banger (C-89/17)] who asked the ECJ whether the principles contained in Surinder Singh (C-370/90) or alternatively the Directive 2004/38 operate to confer derived right of residence to unmarried partners, and providing that the ECJ judgment in the present case will follow the Advocate General’s opinion, a new reference for preliminary ruling is expected for soon.

In the same context, it is interesting to observe the evolution of the “substance of rights test” from Zambrano, McCarthy and Dereci :

  • Purely internal situations. The key factor of the test is whether the decision to deny derived right of residence would require the EU national to leave the EU (and not merely a Member State).
  • Situations where the EU national exercised the right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national. The key factor is whether the decision to deny derived right of residence would require the EU national to leave that Member State.

Lastly, in his Opinion, Advocate General Bot, underlined that as the case at issue, denial of derived right of residence to a third country national (spouse) in the host Member State where the EU citizen became naturalised would practically mean that “What is given with one hand would therefore be taken away with the other.”

It will be probably useful to apply mutatis mutandis the same reasoning, to other cases.

Tanel Feldman

Immigration Law Associates

 

 

 

 

 

 

 

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