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EU court advisor: UK wrongly denied residency to husband of dual citizen

[JURIST] The UK Home Office [official website] wrongly denied residency to the Algerian husband of a dual British-Spanish citizen, according to the initial opinion [opinion, PDF] of European Court of Justice Advocate General [official website] on Tuesday. The Home Office argued that when Perla Nerea García Ormazábal became a British citizen in 2009, her right to live with her family in any state within the EU fell away as she was no longer an European Economic Area (EEA) national and is consequently no longer able to rely on the rights afforded by the directive on free movement. The Advocate General agreed that Ms. García Ormazábal no longer fits within the definition of 'beneficiary" under the 2004/38 freedom of movement directive. However, the Advocate General explained that, "[a]lthough it is for each Member State to lay down the conditions for the acquisition and loss of nationality, that competence must be exercised having due regard to EU law and the national rules in question must have due regard to EU law." If the Grand Chamber rules similarly to the Advocate General, the rights of those seeking dual nationality and their family members' residencies would be protected. The Grand Chamber's pending decision in this case, which was heard earlier this month, will have widespread implications for those applying for UK passports.

The Home Office traditionally had a relaxed policy on dual citizenship, according to immigration barrister Colin Yeo, [official website] in his Freedom of Movement blog [text]. The Home Office changed its view to that EU law rights are instantly lost the moment an EU national gains British citizenship in a 2011 case when a British woman tried to bring her Jamaican spouse into the country. The European Court of Justice rejected her plea, holding that 2004/38 freedom of movement direction [text, PDF] did not apply to an EU citizen who never exercised their 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 [press release]. Yeo stated that it was at this point the Home Office "started to take the view that EU law rights are instantly lost the moment an EU national becomes British."

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