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EU court: citizens who become British may bring foreign-born spouse to UK

[JURIST] The European Court of Justice ruled [judgment] Tuesday that an EU citizen who becomes a British citizen is allowed to have their non-EU spouse live with them in the UK.

The ruling came in a case brought by a Spanish national who had attained dual citizenship status with Spain and the UK and then the UK denied her Algerian husband residency.

The court considered the following question in interpretation of Directive 2004/38/EC [text] concerning the right of free movement of EU citizens to other Member States:

Where a Spanish national and Union citizen:

  • moves to the United Kingdom, in the exercise of her right to free movement under Directive [2004/38]; and

  • resides in the United Kingdom in the exercise of her right under Article 7 or Article 16 of Directive [2004/38]; and

  • subsequently acquires British citizenship, which she holds in addition to her Spanish nationality, as a dual national; and

  • 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], within the meaning of Article 3(1), whilst she is residing in the United Kingdom, and holding both Spanish nationality and British citizenship?
The court held that a third country national does not have the right of residence under Directive [2004/38] but is eligible for the right of residence through his spouse under Article 21(1) of the Treaty on the Functioning of the European Union (TFEU) [text]. The general reasoning is that this right of a third country national exists where the EU citizen's right to be able to move freely would be infringed if it did not exist. Thus, there is no direct conferring of the right to the third country national through the TFEU but only as through the EU citizen spouse. The standard for assessing this right of residence of a third country national through TFEU must be similar but not harsher than the standard used through Directive 2004/38.

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