EU Nationals with Non-EU Spouses to Keep EEA Immigration Rights

In November 2017, the European Court of Justice announced that EU migrants who become British citizens will retain the right to bring spouses and partners from non-EU countries to the UK. In what proved to be a defeat for the British government, the court maintained that the Home Office had been wrong in cases where EU nationals were refused the right to bring their partners to live with them in the UK.

The case referred by London’s High Court that sparked the ECJ’s ruling concerned Spanish-born UK citizen, Perla Nerea García Ormazabal and her Algerian husband, Toufik Lounes. Having gained her British citizenship in 2009, Ms Ormazabal went on to marry Mr Lounes in 2014. He had entered the UK on a six-month visitor visa in 2010, overstaying illegally after its expiry. Once married, he applied for a residence card, something that family members of European Economic Area (EEA) nationals are entitled to.

Rather than grant his application, the Home Office instead looked to deport the Algerian international. With Ms Ormazabal having gained British citizenship, they argued that UK legislation should now replace that of the EEA’s freedom of movement directive for EU nationals. Under this strict immigration procedure, something applicable to all British nationals since 2012, the husband would need to be assessed before qualifying for UK access.

Having been referred to the European Court of Justice, judges soon concluded that the man had a ‘derivative right to reside’. They said that thanks to the dual Spanish and British nationality of Ms Ormazabal, the couple had the right to build a family life together, despite the husband’s non-EU status. The government, in response to this setback, have been quoted as saying they will review the ruling and consider its impact.

The ruling itself can be interpreted as only applying to European citizens who have exercised their right to move within the EU, and have family rights linked to that move. With Brexit looming, it isn’t certain that EU citizens living in the UK will be able to count on this new ruling, and with the UK no longer under European Court of Justice jurisdiction, a return to UK immigration law could be likely.

At Marsans, we offer comprehensive advice on all UK immigration and nationality matters, with expertise in European immigration law. Despite the imminent restructure that Brexit is sure to bring to immigration rights, you can be sure that Marsans will always be at the forefront of legislative changes and landmark cases.

If you, or a family member, have any questions surrounding immigration law and your rights as a UK, EU or even non-EU citizen, then please don’t hesitate to get in touch with our dedicated immigration team.