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||Neutral Citation Number:  EWHC 436 (Admin)
||Case No: CO/3944/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||8 March 2016
B e f o r e :
THE HONOURABLE MRS JUSTICE LANG DBE
|| THE QUEEN
on the application of
- and -
||SECRETARY OF STATE FOR
THE HOME DEPARTMENT
Parminder Saini (instructed by MTG) for the Claimant
Julia Smyth (instructed by the Government Legal Department) for the Defendant
Hearing date: 9 February 2016
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mrs Justice Lang:
- The Claimant, who is a national of Algeria, applied for judicial review of the Defendant's decision, dated 22 May 2014, to refuse his application for a residence card under the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations 2006") as the family member of his wife, Mrs Ormazabal, who is a dual Spanish and British national.
- The issues in the claim are:
i) Whether, as the Claimant contends, Mrs Ormazabal continues to be a beneficiary under Article 3(1) of Directive 2004/38/EC ("the Directive"), having exercised her right to free movement as a Spanish national and moved from Spain to the United Kingdom ("U.K.") and acquired the right of permanent residence in the U.K. under Article 16(1) of the Directive. Or, as the Defendant contends, whether she ceased to be a beneficiary under Article 3(1) of the Directive when she acquired British citizenship by naturalisation in August 2009.
ii) Whether the amended definition of an "EEA national" in regulation 2 of the EEA Regulations 2006, which now excludes British citizens, is contrary to the Directive and Article 21 of the Treaty on the Functioning of the European Union ("TFEU").
- It was common ground between the parties that, if Mrs Omazabal was no longer a beneficiary under Article 3(1) of the Directive, the Claimant would not be entitled to a residence card under regulation 16 of the EEA Regulations 2006, as a "family member" of a "qualified person".
- Other claims raising similar issues have been stayed awaiting the outcome of this lead case.
- The Claimant is a national of Algeria, born there on 23 February 1981. He entered the U.K. on a 6 month visitor visa on 20 January 2010, and overstayed illegally. In 2013, he formed a relationship with Mrs Perla Nerea Garcia Ormazabal. They entered into an Islamic marriage on 1 January 2014. They subsequently married in a civil ceremony in London on 16 May 2014.
- On 15 April 2014, the Claimant applied to the Defendant for an EEA residence card, on the basis of his marriage to Mrs Ormazabal. Mrs Ormazabal was born on 15 September 1976 in Spain, and she is a Spanish national. She moved to the U.K. in September 1996 to study English. She then undertook a degree in Applied Computing at the University of East Anglia in Norwich, and was awarded a Bachelor of Science degree in July 2000. Subsequently she took a BTEC Professional Development course at West Herts College, obtaining her Diploma in June 2004. Since September 2004, Mrs Ormazabal has been employed full-time in London at the Turkish Embassy. She stated, through counsel, at the hearing that she worked part-time whilst a student, however, no evidence of this was adduced.
- Mrs Ormazabal became a naturalised British citizen on 12 August 2009 and holds a British passport.
- The Claimant came to the attention of the immigration authorities in May 2014. On 14 May 2014, the Claimant was served with a "Notice to a person liable to removal" (form IS.151A) informing him that he was liable to removal under section 10 Immigration and Asylum Act 1999 on the grounds that he had overstayed in the U.K., in breach of immigration controls. On 14 May 2014, the Claimant was also served with notice of a decision to remove him from the U.K. (form IS.151A Part 2).
- On 22 May 2014, the Defendant sent her decision letter to the Claimant stating:
"You have applied for a residence card as confirmation that you are the family member of Perla Nerea Garcia Ormazabal, a Spanish national who is exercising Treaty rights in the United Kingdom.
Perla Nerea Garcia Ormazabal also holds British citizenship.
She is therefore a dual citizen who holds British citizenship and Spanish citizenship.
The definition of EEA national in Regulation 2 of the Immigration (European Economic Area) Regulations 2006 was amended on 16 July 2012 to preclude dual British citizens/EEA nationals from benefiting from the Directive and therefore also to preclude their family members from relying upon free movement rights.
Transitional provisions were made in order not to unfairly prejudice the position of persons who have acted in reliance on the previous definition of EEA national, however these do not apply to your sponsor Perla Nerea Garcia Ormazabal.
Therefore, your application for a residence card has been refused on the grounds that your sponsor Perla Nerea Garcia Ormazabal:
- Does not meet the definition of an EEA national defined under Regulation 2 of the Immigration (EEA) Regulations 2006 (as amended on 16 July 2012) as she is also a British citizen.
As your entitlement to rely on the provisions of the Immigration (European Economic Area) Regulations 2006 cannot be established there is no right of appeal against this decision, however redress through other legal channels may be possible and it is recommended you seek legal advice should you choose to do so."
The letter invited the Claimant to consider an application to remain in the U.K. under the Immigration Rules and Article 8 of the European Convention on Human Rights. Although no such application has been determined, it was common ground, for the purposes of this claim, that obtaining leave to remain under U.K. domestic law would require the Claimant to fulfil criteria which are not applicable under the Directive and the EEA Regulations 2006.
The statutory framework
The right of Union citizens to move and reside within the territory of other Member States is provided for by Article 21 TFEU, which provides that every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.
Article 3.1 of the Directive provides:
"1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members….who accompany or join them."
The scheme established by the Directive, and implemented in the U.K. by the EEA Regulations 2006, is as follows:
i) There is an initial right of residence for three months: Article 6 and regulation 13.
ii) A Union citizen will have an extended right of residence if he fulfils the conditions set out in Article 7(1) of the Directive and regulation 14, which uses the term "qualified person" as defined in regulation 6. Accordingly, he must establish that he: (a) is a worker or self-employed person; (b) has sufficient resources not to become a burden on the social assistance system of the host Member State and has comprehensive sickness insurance cover; (c) is a student, has comprehensive sickness cover, and has sufficient resources; or (d) is a family member of a Union citizen who satisfies one of those conditions.
iii) After a continuous period of five years' legal residence, a Union citizen acquires a right of permanent residence (Article 16(1) and regulation 15). In order to "reside legally," a Union citizen must fulfil the conditions in Article 7/regulation 14. Article 16(4) provides that "once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years". Regulation 15(2) is in similar terms, though does not include the words "once acquired".
iv) A person with a right of permanent residence can be removed on serious grounds of public policy or public security (Article 28).
Neither the Treaty nor the Directive confer any autonomous rights upon family members who are third country nationals. Their rights are only acquired by reason of their status as members of the Union citizen's family.
By Article 7(2) of the Directive, non-EEA national family members who are accompanying or joining a Union citizen in the host Member State enjoy an extended right of residence, provided that the Union citizen satisfies the conditions in Article 7(1)(a)(b) or (c) (see also Article 14(2) of the Directive and regulation 14(2) of the EEA Regulations 2006).
In order to acquire a right of permanent residence pursuant to Article 16(2), a non-EEA national family member must have "legally resided" with the Union citizen for a continuous period of five years. In that respect, only periods of residence which comply with Article 7(2) can be taken into account.
A person's spouse or civil partner is treated as their family member: regulation 7(1) and Article 2(2) of the Directive.
Where a non-EEA citizen is in a relationship with a Union citizen but they are not married, the non-EEA citizen will have no EU law right to reside unless inter alia: (i) he can prove that he is a "durable partner" (Article 3(2)(b) of the Directive and regulation 8(5) of the EEA Regulations 2006); and (ii) he has been issued with the relevant residence documentation (Article 3(2) of the Directive and regulation 7(3) of the EEA Regulations 2006).
Amendments to the EEA Regulations 2006 affecting dual nationals
The Directive applies to "all Union citizens" (Article 3(1)). The term "Union citizen" is defined in Article 2(1) as "any person having the nationality of a Member State".
Under the EEA Regulations 2006, the term "EEA national" is used in place of "Union citizen". The Immigration (European Economic Area) (Amendment) Regulations 2012 (2012/1547) and the Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2012 (2012/2560) amended the definition of the term "EEA national" in regulation 2(1) of the EEA Regulations 2006.
Prior to the 2012 amendments, the definition read:
""EEA national" means a national of an EEA State"
Following SI 2012/1547, the definition reads:
""EEA national" means a national of an EEA State who is not also a United Kingdom national"
The definition was re-amended by SI 2012/2560 to read:
""EEA national" means a national of an EEA State who is not also a British citizen"
Prior to the amendment, a U.K. national who did not hold dual nationality could not benefit from the Regulations, because the definition of "EEA State" in regulation 2(1) excluded the United Kingdom. However, British citizens who were also nationals of another EEA State could successfully rely on the Regulations. Following the amendment, they can no longer do so, because British citizens are expressly excluded. Paragraph 2 of Schedule 3 to the 2012 Regulations made transitional provisions to address the position of certain family members who had acted in reliance on the previous definition, but the Claimant does not fall within these provisions.
Statutory instruments are accompanied by an Explanatory Note which is not part of the regulations, but "is of use in identifying the mischief which the regulations were attempting to remedy" (Pickstone v Freemans plc  AC 66, per Lord Oliver at ). Explanatory memoranda (which are prepared by the Home Office and laid before Parliament) may also be used for this purpose.
The Explanatory Note to SI 2012/1547 states:
"Paragraph 1 of Schedule 1 to these Regulations makes various changes to the interpretation provisions in regulation 2(1) of the 2006 Regulations. These amendments include provisions which-
(a) make it clear that a person will not be regarded as the spouse, civil partner of another person for the purpose of the 2006 Regulations where a spouse, civil partner or durable partner of either person is already residing in the United Kingdom; and
(b) make it clear that a person will not be regarded as an EEA national where they are also a United Kingdom national.
This amendment of the definition of an EEA national reflects the ECJ's judgment in the case of C-434/09 Shirley McCarthy v Secretary of State for the Home Department. Schedule 3 to these Regulations makes transitional provisions to address the position of persons who have acted in reliance on the previous definition."
The Explanatory Memorandum to SI 2012/1547 states, at paragraph 7.7:
"Paragraph 1(d) of Schedule 1 gives effect to the ECJ judgment in McCarthy. This determined that a person who holds the nationality of the host Member State and has never exercised their right of free movement and residence does not benefit from the terms of the Free Movement Directive. Transitional provisions have also been made by way of paragraph 2 of schedule 3 of the amending Regulations to provide continuation of rights for those who have already placed reasonable reliance on the pre-McCarthy position which enabled British citizens to fall within the definition of EEA national for the purposes of the Regulations where they held another EEA nationality."
The Explanatory Memorandum to SI 2012/2560 states at paragraph 7.10:
"Paragraph 7 of the Schedule to the Regulations amends the reference in the 2006 Regulations to "UK nationals" so that they refer instead to "British citizens". An amendment was made to the EEA Regulations in July 2012 to implement the ECJ's judgment in the case of McCarthy (C-434/09) in order to make clear that dual nationals are not normally able to exercise free movement rights in the countries of their citizenship. In the process of drafting guidance on these changes it became clear that this amendment – and the 2006 Regulations in general – should refer to "British citizens" rather than to "UK nationals" since only the former have the right of abode in the UK."
Application of the statutory scheme to the Claimant and Mrs Ormazabal
It was common ground that Mrs Ormazabal was exercising her right to free movement as an EU citizen when she moved from Spain to the U.K. The Defendant's case was that she could no longer rely upon those rights within the U.K. once she became a naturalised British citizen in August 2009.
The Claimant relied in particular upon the fact that Mrs Ormazabal had acquired the right of permanent residence under Article 16 of the Directive (dated 29 April 2004) and regulation 15 of the EEA Regulations 2006 (which came into force on 30 April 2006) on a date after April 2006 but before she was naturalised as a British citizen in August 2009. The Claimant contended that her right of permanent residence under the Directive was not lost by the act of naturalisation. Whilst not making any formal concessions, the Defendant did not engage with the question whether or not Mrs Ormazabal had in fact acquired the right of permanent residence because her case was that, as a matter of law, it made no difference to the position once she became a British citizen.
It was common ground that time spent by Mrs Ormazabal in the U.K. before the Directive and the EEA Regulations 2006 came into force, could be counted towards the five year period of lawful residence required to acquire the right of permanent residence (Lassal (C-162/09); Ziolkowski & Ors C-424/10 & 425/10).
At the hearing, I asked counsel to explain how, and when, Mrs Ormazabal acquired a right of permanent residence, as it was not apparent from the evidence which had been adduced when she began to exercise her extended rights of residence, either as a "worker" or as a student who had comprehensive sickness cover, under Article 7 and regulations 14 and 6. It appeared that the Claimant's lawyers had not previously explored this issue with Mrs Ormazabal, and so took instructions from her in court. Counsel's response that she worked part-time to support herself as a student, prior to commencing full-time work in September 2004, was not supported by evidence, either in the form of a witness statement or documentary evidence of payslips, tax records etc. She did not suggest that she had comprehensive sickness cover as a student. After discussions between the parties over the short adjournment, the Defendant was only willing to concede that her lawful residence (for the purpose of acquiring the right of permanent residence) began in September 2004 when she began full-time work. If this analysis was correct, she was naturalised as a British citizen, on 12 August 2009, shortly before she had completed 5 years lawful residence, and before she acquired a permanent right of residence.
However, since she studied for 8 years in the U.K., from the age of 20, it seemed to me to be likely, on the balance of probabilities that she had worked during that time, and I was reluctant to shut her out from pursuing this point merely because of what appeared to me to be under-preparation by her lawyers, and bearing in mind that the Defendant had not previously challenged the Claimant's assertion that she had acquired the right of permanent residence before naturalisation.
In those circumstances, I would respectfully invite the Court to consider Mrs Ormazabal's status on two alternative bases:
i) Either, that she was exercising her extended rights of residence under Article 7 of the Directive and regulation 14 of the EEA Regulations 2006 when she was naturalised as a British citizen on 12 August 2009, but had not yet acquired the right of permanent residence in the U.K.
On either basis, the Claimant submitted that, after naturalisation, Mrs Ormazabal continued to exercise her right to free movement, both as an EU citizen and a Spanish national, by residing in the U.K., and that she is entitled to have her spouse reside with her, under the terms of the Directive and the EEA Regulations 2006. On the Claimant's case, even if she did not have the right of permanent residence as at the date of naturalisation, she has since acquired it by the passage of time spent working in the U.K.
ii) Or, that she acquired the right of permanent residence in the U.K. under Article 16 of the Directive and regulation 15 of the EEA Regulations 2006, at an unknown date after implementation of the Directive in April 2006, but before she was naturalised as a British citizen on 12 August 2009.
The Defendant submitted that, after naturalisation as a British citizen, Mrs Ormazabal could no longer exercise any EU right to free movement within the U.K. despite her Spanish nationality and Union citizenship. In that respect, she was in the same position as other British citizens living in the U.K. who did not have dual nationality. She could, of course, exercise her EU right to free movement in other EU countries. It followed that the Claimant's application to reside in the U.K. had to be determined according to U.K. domestic immigration law only; he could not rely upon the Directive and the EEA Regulations 2006.
The Claimant's legal submissions
The Claimant submitted that the restriction introduced by the 2012 amendment to the definition of an "EEA national" unlawfully fetters and restricts the scope of free movement rights under Article 21, TFEU and the Directive.
As a Spanish national and Union citizen, Mrs Ormazabal continues to be a beneficiary of the Directive, within the meaning of Article 3(1), in respect of her residence in the U.K. The status of Union citizenship and Spanish nationality are intrinsically connected, and cannot be disregarded by the U.K. merely because she has also subsequently acquired British citizenship. The reference to moving or residing "in a Member State other than that of which they are a national" in Article 3(1) meant the Union Citizen's home country from which she moved, e.g. Spain in this case.
The explanation given for the 2012 amendment was that it gave effect to the CJEU's judgment in McCarthy (C-434/09,  All E.R. 729). However, it is much wider in scope than the decision in McCarthy. The first question referred to the CJEU in McCarthy was:
"1. Is a person of dual Irish and United Kingdom nationality who has resided in the United Kingdom for her entire life a "beneficiary" within the meaning of Article 3 of Directive 2004/38 …?" (emphasis added)
The CJEU only answered the first question and that answer was in the negative for the following reasons, at :
"57. In the light of the foregoing, the answer to the first question is as follows:
– Article 3(1) of Directive 2004/38 must be interpreted as meaning that that directive is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State.
– Article 21 TFEU is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State, provided that the situation of that citizen does not include the application of measures by a Member State that would have the effect of depriving him of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen or of impeding the exercise of his right of free movement and residence within the territory of the Member States."
The CJEU's decision was premised upon the fact that Mrs McCarthy was not a beneficiary of the Directive. As stated at , this was because:
"…in so far as the Union citizen concerned has never exercised his right of free movement and has always resided in a Member State of which he is a national, that citizen is not covered by the concept of 'beneficiary' for the purposes of Article 3(1) of Directive 2004/38, so that that directive is not applicable to him."
Therefore, it can be seen that the CJEU did not exclude all Union citizens from the scope of the Directive simply because they had acquired citizenship of the host country, as well as another EU nationality. Mrs McCarthy fell outside the scope of the Directive because she had "never exercised her right of free movement" as she had always resided in a Member State of which she was a national, namely, the U.K. Mrs Ormazabal's position is clearly distinguishable because she has exercised her right of free movement, to move from her native Spain to the U.K.
In fact, the CJEU considered that the fact of dual nationality was irrelevant to the question of the applicability of the Directive. It stated:
"40. That finding cannot be influenced by the fact that the citizen concerned is also a national of a Member State other than that where he resides.
41. Indeed, the fact that a Union citizen is a national of more than one Member State does not mean that he has made use of his right of freedom of movement."
The Claimant acknowledged that Article 3(1) and the Directive did not directly address the position of dual nationality citizens and their family members but submitted that the Directive should be given a purposive and teleological interpretation which gives effect to the objectives in the recitals, set out below.
The recitals provide inter alia:
"(1) Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect."
"(2) The free movement of persons constitutes one of the fundamental freedoms of the internal market, which comprises an area without internal frontiers, in which freedom is ensured in accordance with the provisions of the Treaty."
"(3) Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. It is therefore necessary to codify and review the existing Community instruments dealing separately with workers, self-employed persons, as well as students and other inactive persons in order to simplify and strengthen the right of free movement and residence of all Union citizens."
"(5) The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality…"
"(11) The fundamental and personal right of residence in another Member State is conferred directly on Union citizens by the Treaty and is not dependent upon their having fulfilled administrative procedures…."
"(17) Enjoyment of permanent residence by Union citizens who have chosen to settle long term in the host Member State would strengthen the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union. A right of permanent residence should therefore be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with conditions laid down in this Directive during a continuous period of five years without becoming subject to an expulsion measure."
"(18) In order to be a genuine vehicle for integration into the society of the host Member State in which the Union citizen resides, the right of permanent residence, once obtained, should not be subject to any conditions."
Recital (5) recognises that the right of a Union Citizen to move and reside freely must include the right to be accompanied by his or her spouse, whatever their nationality. The effect of the 2012 amendments is to restrict this right, as Mrs Ormazabal can no longer rely on her rights under the Directive as an EU citizen to reside with her husband in the U.K., whereas if they had married prior to 2012, he would have been permitted to reside with her. Her rights, which are guaranteed by the Treaty, are being obstructed. Mrs Ormazabal is not being permitted to lead a normal life with her husband, despite being a citizen of the Union since birth and having travelled to a host Member State. By analogy with the ratio in Metock & Others (Area of Freedom, Security and Justice)  EUECJ C-127/08, at , by refusing to allow the Claimant to join Mrs Ormazabal, the Defendant is discouraging her from continuing to live in the U.K. and is encouraging her to move to another country, against her will and in violation of her rights as a citizen of the Union.
The 2012 amendment, if replicated in other member states, would produce the "paradoxical result" that "the right of freedom of movement of a Union citizen who is accompanied by third-country national family members would be reduced in proportion to the number of nationalities he has": McCarthy and Others  EUECJ C-202/13, per Advocate General at .
Those EU citizens who benefit from the principle established by the CJEU in Surinder Singh Case C-370/90, namely, that a British citizen exercising community rights in another part of the EU is entitled to return with his third-country spouse, would also be excluded from the Directive by the 2012 amendment, if the U.K. Government had not made express provision for them in the EEA Regulations 2006, regulation 9.
The fact that Mrs Ormazabal has settled in the U.K. does not take her outside the scope of the Directive, since permanent residence in another member state is both envisaged and facilitated by the Directive. The grounds upon which the right of permanent residence can be removed are strictly limited. There is no provision in the Directive for removal of the right of permanent residence on the ground of a change of immigration status under the domestic law of the host country, such as becoming a naturalised citizen of the host country.
The Claimant also relied upon the decisions of the CJEU in Kahveci (External relations)  EUECJ C-9/10 (and in particular the opinion of Advocate Sharpston at ), Kahveci and Inan  EUECJ C-7/10 and C-9/10 at [22-41, with particular emphasis on 35-41]. The Claimant submitted that Member States are not permitted to modify unilaterally the scope of the system of gradually integrating Union citizens in the host Member State and no longer have the power to adopt measures which may undermine the legal status expressly conferred on Union citizens by the Directive, unless in compliance with public policy, safety or health concerns pursuant to the terms of the Directive. Otherwise, the aim of the Directive would be impeded by acquisition of the nationality of the host Member State.
The Defendant's legal submissions
The Defendant summarised her case in the following way:
i) The Directive does not provide for the circumstances in which citizenship of a host Member State is acquired. That is a matter for national law: see Case C-369/90 Micheletti v Delegacion del Gobierno en Cantabria C-369/90  ECR I-4239; R (G1) v Secretary of State for the Home Department  QB 1008; Pham v Secretary of State for the Home Department  UK SC19, 3 All ER 1015 (in particular, per Lord Mance at [84- 89]).
ii) The most valuable right conferred by the Directive is a right of permanent residence.
iii) The acquisition of citizenship of a host Member State is a choice, to which advantages and disadvantages will attach.
iv) A person who is a national of a Member State has an unconditional right to reside in that Member State by virtue of international law. He does not have any right to reside there under the Directive.
v) Accordingly, his family members do not have any right to reside in that Member State pursuant to the Directive either, because their rights are parasitic on the Union citizen's. Family members have no autonomous EU law rights.
vi) The 2006 Regulations, which provide for that position, are therefore entirely lawful.
vii) There is no EU free movement imperative which dictates a different result: namely, that this Claimant's wife should be put in a more advantageous position than any other British citizen (whose family members are subject to domestic immigration rules) and any other EU citizen (whose right of residence, even if permanent, would still be qualified).
The Defendant disagreed with the Claimant's interpretation of McCarthy, submitting that the CJEU also held that Mrs McCarthy's U.K. nationality was, of itself, a fundamental bar to her being able to rely on the Directive as against the U.K., at :
"34. Since, as stated in paragraph 29 of this judgment, the residence of a person residing in the Member State of which he is a national cannot be made subject to conditions, Directive 2004/38, concerning the conditions governing the exercise of the right to move and reside freely within the territory of the Member States, cannot apply to a Union citizen who enjoys an unconditional right of residence due to the fact that he resides in the Member State of which he is a national."
The same conclusion was reached by the CJEU in Case C-456/12 O v Minister voor Immigratie  QB 1163 (§§35 – 43), in which the CJEU stated:
"42. Since, under a principle of international law, a State cannot refuse its own nationals the right to enter its territory and remain there, Directive 2004/38 is intended only to govern the conditions of entry and residence of a Union citizen in a Member State other than the Member State of which he is a national ..."
"43. In those circumstances and having regard to what is said in paragraph 36 above [that Article 21 TFEU and the Directive do not confer autonomous rights on third country nationals], Directive 2004/38 is therefore also not intended to confer a derived right of residence on third-country nationals who are family members of a Union citizen residing in the Member State of which the latter is a national."
A person could not, therefore, simultaneously hold a right of residence under the Directive and by virtue of his nationality, because any right of residence under the Directive would be subject to conditions, whereas the right to reside by virtue of nationality is unconditional. No EU rights of residence are necessary in the case of those residing in their Member State of nationality, because they already have an unconditional right to reside there.
Once a person is a British citizen, his right to reside in the U.K. is protected by international and domestic law, not by EU law. EU law does not facilitate or regulate his entry and residence (nor that of his family members) any more than it does the residence of a British citizen without dual nationality.
Thus, where a Union citizen with a right of permanent residence in the U.K. elects to naturalise and acquire British citizenship, his right of permanent residence is automatically extinguished, or at the very least, rendered non-enforceable. The Directive does not provide for that consequence because it is a matter beyond its scope.
The principle set out in McCarthy and O is reflected in the wording of Article 3(1) of the Directive which only applies to a Union citizen's movement and residence "in a Member State other than that of which they are a national" (see also Metock at §§54, 67, 68, 73, 89).
The definition of "EEA national" in the 2006 Regulations, and the effect of those regulations in the Claimant's case, is therefore wholly consistent with EU law.
The decision of the CJEU in Cases C7/10 & C9/10 Staatssecretarias van Justitie v (1) Kahveci, (2) Inan  2 CMLR 107, has to be read subject to the more recent decision of the CJEU in Case C-171/13 Raad van bestuur v Demirci  2 CMLR 1055. Kahveci was expressly decided by reference to the wording of the relevant provision of Decision 1/80, the objectives of that Decision and the system established by it . One of the objectives of Decision 1/80 is to promote family reunification.
The reasoning in that case has no application to the present situation. Directive 2004/38 is differently worded, establishes an entirely different system and has different objectives. Its purpose is not family reunification.
In some circumstances, EU law treats the family member of a Union citizen in his Member State of nationality as having a right to reside, but that is only where a Union citizen is returning to the Member State of which he is a national: see, for example, Case C-370/90 Surinder Singh. In that situation, EU law is protecting the right of free movement to the Member State of which the Union citizen is not a national, as opposed to any right to reside in the home Member State; it is removing an obstacle to the Union citizen leaving his or her Member State of nationality in order to protect the right of free movement to another Member State. Case C-203 McCarthy v SSHD  QB 651 is a further example of that principle in action. On the specific facts of that case (in which the British citizen's non EEA national family member had family member rights in Spain), the Directive was held to apply.
The relevant principle does not apply in this case. There is no obstacle to the Claimant's wife exercising her right to move and reside in other Member States. Her husband would have rights of residence in those other Member States as her spouse.
In my judgment, a reference to the CJEU is required since it is unclear whether the 2012 amendment to the definition of "EEA citizen" in the EEA Regulations 2006, and the decision that Mrs Ormazabal, who is a Spanish national, can no longer rely on her rights as a Union citizen under the Directive within the U.K. following naturalisation as a British citizen, unlawfully restrict the right to free movement under TFEU Article 21 and Directive 2004/38/EC.
The test for acte clair has traditionally been whether the Court can determine the issues before it "with complete confidence" and "with no real doubt": per Lord Bingham MR in R v International Stock Exchange ex p. Else  QB 534. Having given careful consideration to the competing submissions from the parties, I consider that the criteria for a reference are met in this case.
This is a test case and there are other claims which turn on the same issue which have been stayed pending the outcome of this case.
After consultation with the parties, the question which I refer to the CJEU is as follows:
"Where a Spanish national and Union citizen:
i) moves to the United Kingdom, in the exercise of her right to free movement under Directive 2004/38/EC; and
ii) resides in the United Kingdom in the exercise of her right under Article 7 or Article 16 of Directive 2004/38/EC; and
iii) subsequently acquires British citizenship, which she holds in addition to her Spanish nationality, as a dual national; and
iv) several years after acquiring British citizenship, marries a third country national with whom she resides in the United Kingdom;
are she and her spouse both beneficiaries of Directive 2004/38/EC, within the meaning of Article 3(1), whilst she is residing in the United Kingdom, and holding both Spanish nationality and British citizenship?"
Note 1 In force 16 October 2012 [Back]
Note 2 In force 8 November 2012 [Back]
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