Free movement rights

08 January 2018

It remains unclear what immigration rules will look like after Brexit, but the recent European case of Toufik Lounes v Secretary or State for the Home Department is relevant right now to UK employers and EU citizens.

The case involved a woman of Spanish origin, Ms Ormazabal who then acquired dual Spanish and British nationality. She has an Algerian husband Mr Lounes, who had stayed in the UK illegally after his visitor’s visa had expired. The question was whether Ms Ormazabal was allowed to live with her husband in the UK, when his residency application (as a family member of an EEA national) had been refused. The Home Office took the view that Ms Ormazabal was no longer an EEA national when she became a British citizen and so Mr Lounes was not entitled to stay in the UK as a family member of an EEA national.

The Court of Justice of the European Union held that Ms Ormazabal had a right to lead a normal family life in the UK even after she became a British citizen of dual nationality. Mr Lounes benefitted from a right of residence in the UK as a result. The UK had been wrong to refuse to recognise the rights of freedom of movement of EU citizens who have acquired British citizenship and the similar rights of their family members.

The legal position will change again after Brexit unless a deal is reached. So, if you have any EU citizens in your workforce who have been denied free movement of worker rights in this way because they have become a British citizen, we think that they should consider re-applying now, before Brexit.


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