Lounes, R (on the application of) v Secretary of State for the Home Department

A national of a Member State who has exercised free-movement rights and later acquired the nationality of the host Member State may raise a question about the continuing application of the Free Movement Directive. The wording of Article 3(1), read with Article 21 TFEU, does not resolve whether naturalisation extinguishes or affects the Union citizen’s Directive rights in the host state. Where the issue cannot be determined with complete confidence and without real doubt, the national court must refer it to the CJEU. The derived residence rights of a third-country national spouse depend on the answer to that question.

The claimant, an Algerian national, sought judicial review of the refusal of his application for an EEA residence card as the spouse of a dual Spanish and British citizen. His wife had moved from Spain to the United Kingdom, exercised free-movement rights and later acquired British citizenship by naturalisation.

The central issues were whether she remained a beneficiary under Article 3(1) of Directive 2004/38/EC after naturalisation, and whether the amended definition of an EEA national in the Immigration (European Economic Area) Regulations 2006 was compatible with Article 21 TFEU and the Directive.

1. Reference required. The court held that the question whether a Union citizen who had moved to the United Kingdom, exercised rights under Article 7 or Article 16 of Directive 2004/38/EC, and later acquired British citizenship remained a beneficiary of the Directive was unclear.
2. The same uncertainty affected the position of the citizen’s third-country national spouse. Family members had no autonomous rights under the Treaty or Directive; their residence rights were derived from the Union citizen’s status.
3. The court considered the competing interpretations of McCarthy C-434/09. The claimant submitted that it concerned a person who had never exercised free movement, whereas the defendant contended that residence in the state of nationality was itself a fundamental bar. The court concluded that the issue required authoritative determination.
4. The court also considered the effect of the 2012 amendments excluding British citizens from the definition of an EEA national. It was necessary to determine whether that amendment unlawfully restricted rights under Article 21 TFEU and the Directive.
5. The applicable acte clair test was whether the national court could decide the issue with complete confidence and with no real doubt. That threshold was not met. The question was therefore referred to the CJEU as a test case, with other similar claims stayed pending its outcome.

First-instance judicial review proceedings. The court referred a question concerning the interpretation of Article 3(1) of Directive 2004/38/EC and Article 21 TFEU to the CJEU.