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CJEU: Non-EU national may benefit from a right of residence

In order to guarantee the effectiveness of the rights conferred by citizenship of the EU, the conditions for the grant of that derived right of residence ought not, in principle, to 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 Perla Nerea García Ormazábal, a Spanish national, moved to the UK as a student in 1996 and began working full time in the UK in 2004. She became a naturalised British citizen in 2009.

In April 2014, Mr Lounes and Ms García Ormazábal married. Following their marriage, Mr Lounes applied to the Secretary of State for the Home Department for the issue of a residence card as a family member of an EEA (European Economic Area) national. On 14 May 2014, he was served with a notice, together with a decision to remove him from the UK, on the grounds that he had overstayed in that State in breach of immigration controls.

In addition, by letter of 22 May 2014, the Secretary of State for the Home Department informed Mr Lounes that his application for a residence card had been refused. The letter stated that, in accordance with UK law, Ms García Ormazábal was no longer regarded as an ‘EEA national’ because she had acquired British nationality. Consequently, she was no longer entitled to rely on the rights conferred by the directive on free movement1 and Mr Lounes could not therefore claim a residence card as a family member of an EEA national.

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