Brex DM

This is question that we have touched upon in previous blogs. Our previous advice had been that a European national needed to think carefully about naturalising as a British Citizen. The UK government’s position had been that becoming British would result in a loss of free movement rights subject to certain exceptions set out in a statutory instrument which can be found here. The loss of free movement rights had serious consequences for those dual European/British nationals who wished to be joined by their family members from outside of Europe – e.g. a dual British/German national who wanted to have her Pakistani husband join her in the UK could not rely on European law and her spouse would have to try to meet the UK Immigration Rules to make a successful application to join his European/British national spouse in the UK.

The Court of Justice in the case of C-165/16 Lounes has thrown a spanner in the works for the UK approach. The court has held that EU citizens who move to the UK and later naturalise as British retain their free movement rights. The European Court of Justice has turned to Article 21 of the Treaty of the Functioning of the European Union to state that family members of these dual nationals will have a derived right of residence. As the court states, these family members “must be able to build a life with their third-country-national spouse, by means of the grant of a derived right of residence to that spouse.” It’s now over to the UK government to see how they deal with this. Any benefit from this judgement may of course be short-lived thanks to BREXIT.

Do please contact us if you need Immigration Advice. We have expert immigration practitioners in both Edinburgh and Glasgow.