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13 July 2018

Home Office to amend EEA Regulations for dual nationals

3 mins

With all the continued uncertainty surrounding Brexit, it is welcome news that the Secretary of State has laid amendments to the current Immigration (EEA) Regulations 2016  (‘the Regulations’) to the benefit of certain dual EEA and British citizens.

In 2012, the Home Office took the decision to amend the definition of an ‘EEA national’ for the purposes of the Regulations, narrowing the definition to exclude individuals who also held British citizenship. The Home Office sought to defend the amendment on the basis of the Court of Justice of the EU (‘CJEU’) decision in the case of McCarthy (C-434/09). In McCarthy the Court had considered the position of a dual British/Irish citizen who wished to rely on the Regulations to obtain a residence card for her partner. The CJEU however held that Ms McCarthy’s partner was not entitled to such a document because she had never exercised her free movement rights. She had in fact been born in the UK and was a dual citizen by birth. However, the Home Office’s reworking of the definition of an ‘EEA national’ was a step too far as it included all EEA nationals, regardless of how they had acquired British citizenship.

Fast forward to November 2017 and the case of Lounes (C165/16) came before the CJEU. The CJEU was asked to considered whether an EEA national (Spanish in that case) who moved to the UK to exercise their free movement rights under the Citizens’ Directive (implemented by the Regulations) and subsequently naturalised as a British citizen could rely on her rights of free movement to secure the immigration position of her husband. The Court held that she could because such EEA nationals and their family members were to be treated as if they were beneficiaries of the Citizens’ Directive as a result of Article 21 of the Treaty of the Functioning of the EU (TFEU). Article 21 confers on every citizen of the European Union the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the EU Treaties.

The Home Office has now taken steps to implement Lounes and has done so by amending the definition of an ‘EEA national’ in the Regulations. The definition will now extend to dual British and EEA nationals provided that they naturalised as British following a period of residence in the UK under the Regulations (and can show that they were a qualified person during that period, and have continued to be). It does not extend to those individuals who acquired their EEA nationality after becoming British or to dual nationals who have never exercised free movement rights.

This will be welcome news to the millions of EEA nationals currently in the UK. It means that those individuals who had previously delayed a British citizenship application because they were concerned about their family members’ rights of residence in the UK, can now considering applying for citizenship should they so wish.

The amendments to the Regulations come into force on 24 July 2018.  

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