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EU rights only available to dual nationals who have exercised their free movement rights

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As most experienced EEA Immigration solicitors are aware, Immigration rules relating to EU citizens are more generous than the UK’s domestic Immigration rules. As a result, where possible, it is advantageous to seek to rely on EU rules. Dual nationals with UK citizenship and the citizenship of another EU country, and more specifically, the non-EU citizen partners of dual nationals, will often be advised by Immigration solicitors that they will find themselves in a better position than those of UK citizens who do not have dual nationality. However, in order to benefit from the EU rules which determine who can live in the UK (as opposed to the UK Immigration rules) the dual national needs to have relied on his or her EU citizenship and free movement rights. This is a situation that all British Citizenship lawyers should be aware of when advising clients on dual nationality.

The facts in Kovacevic (British citizen – Art 21 TFEU) Croatia [2018] UKUT 273 (IAC)

The claimant in this case, Ms Kovacevic, was a Croatian national who came to the UK in 1995 and lived and worked here within the Immigration Rules at all times. She naturalised as a British citizen in 2007, retaining her Croatian nationality. Her husband, an Algerian national, entered the UK in 1996. They married in 2014; Croatia joined the EU on 1 July 2013, at which point Ms Kovacevic was already living in the UK as a UK citizen – once Croatia joined the EU, she had no need to rely on her free movement rights to be in the UK because she was already lawfully in the UK and held British Citizenship.

Following their marriage, the claimant’s husband submitted an application for a residence card as the spouse of an EEA national exercising treaty rights in the UK. The claimant also applied for a registration certificate under the Immigration (European Economic Area) Regulations 2006 (the EEA Regulations) to prove her right of residence in the UK. As any Immigration lawyer might have anticipated, the applications were both rejected on the grounds that her naturalisation meant that she did not qualify as a “…Croatian exercising a Treaty right…” in the UK. The couple made further applications asserting the claimant’s right to choose to exercise her rights as an EU citizen by virtue of her Croatian nationality.

The husband’s application was again rejected on the grounds that the EEA Regulations defined an EEA national as someone who did not also have UK citizenship. Although the claimant’s application for a registration certificate was granted, it was then revoked because she was a British citizen.

The impact of Lounes

At the same time the claimant exercised her right of appeal against this decision and her husband was engaged in a judicial review challenge, Mrs Justice Lange made a reference to the Court of Justice of the European Union in the case of Lounes v Secretary of State for the Home Department. That case involved similar facts to the extent that it involved a Spanish national, Ms Ormazabal, who moved to the UK in 1996 to study, and then from 2004 continued to work in the UK. She naturalised as a British citizen and subsequently began a relationship with an Algerian citizen who had come to the UK on a visitor visa but had then become an overstayer. He applied for a residence permit as the family member of an EEA national and was rejected. The Court of Justice of the European Union decided that as Ms Ormazabal had exercised her free movement rights in coming to the UK first to study and then to work, she should not be deprived of those rights as the result of her naturalisation as a British citizen. She – and her partner – could rely on the more favourable EU rules.

Lounes only helps if you have exercised Treaty rights

The latest EEA Regulations reflect the CJEU decision in Lounes, but it did not help Ms Kovacevic or her partner. The Upper Tribunal said that despite the impressive array of arguments put forward on behalf of Ms Kovacevic, they could not overcome the ‘clear and decisive’ ruling in Lounes that a Union citizen who resides in an EU member state of which he or she is a national is not a beneficiary under the Citizens’ Directive. In common with Mrs McCarthy in the familiar McCarthy No 1 case, Ms Kovacevic had never exercised her treaty rights and an EU citizen once Croatia had acceded to the EU. As a result, despite her dual British/Croatian nationality, she could not rely on Treaty rights.

OTS Solicitors are Legal 500 recommended Immigration lawyers with experience in all aspects of Immigration law and Human Rights. We have helped many clients with their dual nationality issues and with other matters relating to the EEA citizenship, EU citizenship and in connection with non-EU citizen family members. To discuss your situation in confidence with one of our top Immigration lawyers, call our London offices on 0203 959 9123.

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