An Algerian national, an illegal overstayer in the UK, who married a Spanish national who had become a UK citizen, was entitled to continue to benefit from the right of residence in the UK to which he would have been entitled before his wife took out British citizenship, according to the opinion of an advocate general of the EU Court of Justice.

Advocate General Yves Bot was considering the case of Toufik Younes, referred from the High Court in London. Mr Lounes entered the UK in 2010 on a six-month visitor visa and then overstayed illegally. In 2014 he married Ms Perla Nerea García Ormazábal, a Spanish national who had moved to the UK as a student in 1996, began working there full time in 2004 and became a naturalised British citizen in 2009.

Following their marriage, Mr Lounes applied to the Home Secretary for a residence card as a family member of an EEA (European Economic Area) national. However he was served with a notice, together with a decision to remove him from the UK, on the grounds that he had overstayed in breach of immigration controls.

The Home Secretary further informed Mr Lounes that his application for a residence card had been refused, and 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 movement and Mr Lounes could not therefore claim a residence card as a family member of an EEA national.

On Mr Lounes bringing proceedings, the High Court expressed its doubts regarding the compatibility of the UK legislation with EU law and asked the Court of Justice for a ruling.

Mr Bot's opinion states that although it is for each member state to lay down the conditions for the acquisition and loss of nationality, that competence must be exercised having due regard to EU law.

He also notes that the Directive on Free Movement clearly limits its scope to EU citizens residing in a member state other than that of which they are nationals, and that following Ms García Ormazábal's acquisition of British nationality, her legal situation has profoundly altered, both in EU law and in national law. Thus, he takes the view that she no longer falls within the definition of a "beneficiary" within the meaning of the directive, and her spouse is not eligible, on the basis of the directive, for a derived right of residence in the UK.

However, under article 21(1) of the Treaty on Furtherance of the European Union, member states must permit EU citizens who are not their nationals to move and reside within their territory with their spouse and, possibly, certain members of their family who are not EU citizens. Under CJEU case law, in order to ensure the effectiveness of that article, the provisions of the Free Movement Directive in the case of the return of an EU citizen to their member state of origin are to be applied by analogy.

By choosing to be naturalised in the UK, Ms García Ormazábal has expressed her wish to live in that state in the same way as she would be prompted to live in her member state of origin, creating strong, lasting ties with the host member state, and the Advocate General proposes that that case law should be applied by analogy to the present case.

It follows, in his view, that the effectiveness of the rights conferred by article 21(1) demands that EU citizens, such as Ms García Ormazábal, should be able to continue the family life they have until then led with their spouse in the member state whose nationality they have acquired.

He concludes that the conditions for granting a derived right of residence to a third-country national, a member of the family of an EU citizen, should not, in principle, be stricter than those laid down by the directive. 

Click here to view the advocate general's opinion.