Lounes (CJEU) C-165/16

(2017)

FREE MOVEMENT WITH FAMILY MEMBERS

EFFECTIVE EXERCISE

WHAT DOES THIS CASE MEAN FOR ME?

If you are a EU citizen who moves to another EU country and gets naturalised there you no longer exercise your free movement.

• Naturalisation means that you get the nationality of the host state.

• Free movement, is a protection accorded by the EU to be treated without discrimination in the host state.

If you decide to marry a non-european state it would normally be difficult for them to get naturalised because you no longer fall under the free movement and they depend on you.

But because of this case they enjoy the right to get naturalisation under the same conditions as if the freedom of movement would have applied. This is a much greater protection.

LEGAL ANALYSIS

A woman has a dual nationality Spanish-British and lives in the Uk. She has moved to the UK and got naturalised. As she lives in the UK she does not fall under the free movement directive (2004/38) as she has not crossed any border. She marries an Algerian and he applies for a residence permit based on the fact that he is a family member of a EU-Citizen. As his wife does not fall under the directive, he does not either so the request is rejected. Therefore, he goes to court and claims a derived right of residence based on his wife's right to non-discrimination (Art. 21(1) TFEU).

CJEU:

• Can he enjoy a derived right of residence following his wife’s right of Art. 21(1) TFEU?

→ Yes, but only if it is necessary to ensure effective exercise of the rights and freedoms accorded by the TFEU to the Eu-citizen.

The wife has the right to lead a normal family life in the host Member State. She must be able to continue enjoying that right in the host State. Also after she acquired the nationality of the host state in addition to her nationality of origin. This means that she must be able to build a family life with her third-country-national spouse.

→ The Court decided to grant a derived right of residence to the third-national spouse. It stated that the conditions imposed on that spouse cannot be stricter than those in the directive 2004/38 for third-country national family members of citizens that have exercised freedom of movement.