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CJEU: A non-EU national may benefit from a right of residence of an EU citizen family member

The conditions for the grant of that right of residence must not be stricter than those laid down by the free movement directive.

Mr Toufik Lounes, an Algerian national, entered the UK in 2010 on a six-month visitor visa and then overstayed illegally. Ms Ormazabal, a Spanish national, moved to the UK as a student in 1996. She has been working there full time since 2004 and resides there. She became a naturalised British citizen in 2009 and also retained her Spanish nationality.

In 2014, Mr Lounes and Ms Ormazabal married. Following their marriage, Mr Lounes applied for the issue of a residence card as a family member of an EEA (European Economic Area) national.

By letter of 22 May 2014, the Secretary of State for the Home Department informed Mr Lounes that his application had been refused. The letter stated that, under the UK legislation transposing the free movement directive,1 Ms Ormazabal had ceased to be regarded as an ‘EEA national’ following her acquisition of British citizenship. Mr Lounes could not therefore claim a residence card as a family member of an EEA national.

Mr Lounes brought a claim before the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court), against the decision of 22 May 2014. The High Court has doubts as to the compatibility of that decision and the UK legislation with EU law and has referred a question on that issue to the Court of Justice.

In yesterday’s judgment, the Court observes first of all that the directive does not confer any autonomous right on family members of an EU citizen who are non-EU nationals, but only rights derived from the rights which the EU citizen concerned enjoys as a result of having exercised his freedom of movement. 

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