Secretary of State for the Home Department v Anita Kovacevic

A Union citizen residing in a Member State of which that citizen is a national is not a beneficiary of the Citizens Directive under Article 3(1), even if the citizen also holds the nationality of another Member State.

A derived right under Article 21(1) TFEU for a third-country-national spouse requires the Union citizen previously to have exercised free-movement rights as a Union citizen. A dual national who entered and lived in the United Kingdom under domestic immigration law before becoming a Union citizen, and who has never exercised free movement, is in a purely domestic situation. Revocation of an erroneously issued registration certificate does not engage Article 21(1) where it neither deprives that person of the substance of Union citizenship nor impedes free movement.

The claimant was a Croatian national who entered the United Kingdom in 1995 and became a British citizen in 2007, while retaining Croatian nationality. Croatia joined the European Union in 2013. Her Algerian husband sought a residence card, and she obtained a registration certificate under the Immigration (European Economic Area) Regulations 2006. The Secretary of State later revoked that certificate because she was also a British citizen.

Judge Herbert in the First-tier Tribunal allowed the claimant’s appeal. The Secretary of State appealed. After the CJEU judgment in Lounes v Secretary of State for the Home Department (Article 21 TFEU - Directive 2004/38/EC), Case C-165/16, the Upper Tribunal had to decide whether a dual Croatian/British citizen who had never exercised EU free-movement rights acquired a right of residence under the Citizens Directive or Article 21(1) TFEU.

1. Appeal allowed. The First-tier Tribunal made a material error of law. Its decision was set aside and the claimant’s appeal was remade and dismissed.

2. Article 3(1) of the Citizens Directive did not apply. Following Lounes v Secretary of State for the Home Department (Article 21 TFEU - Directive 2004/38/EC), Case C-165/16, a Union citizen residing in a Member State of which she is a national has an unconditional domestic right to reside there and is not a beneficiary of the Directive. The claimant’s dual nationality did not alter that conclusion.

3. Article 21(1) TFEU also gave no right of residence. Lounes protected a Union citizen who had first exercised free movement as a Union citizen and later acquired the host State’s nationality. The claimant entered and resided in the United Kingdom under domestic immigration law before Croatia became a Member State. She had never exercised free-movement rights as a Union citizen.

4. Her position was analogous to McCarthy v Secretary of State for the Home Department, C-434/09. The revocation of the registration certificate neither deprived her of the genuine enjoyment of the substance of Union citizenship nor impeded her freedom to move and reside in other Member States. Her work, Croatian nationality, erroneously issued certificate and wish to regularise her husband’s status did not establish the requisite link with EU law.

5. Under regulation 20(2) of the Immigration (European Economic Area) Regulations 2006, the Secretary of State could revoke a registration certificate where its holder never had a right to reside under the Regulations. The claimant had no such right under the Regulations, Article 21 TFEU or the Citizens Directive. No further CJEU reference was required because the position was acte clair.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was allowed. The First-tier Tribunal decision was set aside and the claimant’s appeal against revocation of her registration certificate was dismissed.
• First-tier Tribunal: Judge Herbert allowed the claimant’s appeal on 11 July 2016.