Eu vs UK Immigration law - Toufik Lounes v Secretary of State for the Home Department - The Verdict


The Court of Justice of the European Union today released a press release regarding its judgement in the case of Toufik Lounes v Secretary of State for the Home Department.  The case, outlined in July 2017 here, centred around the right of a naturalised British woman of Spanish origin to live with her Algerian husband in the UK, despite his residency application being refused.

Mr Toufik Lounes, an Algerian national, had originally entered the UK in 2010 before illegally overstaying his six-month visitor visa, while Perla Nerea García Ormazabal had obtained dual British-Spanish nationality in 2009, having lived in the UK since 2004.  The two married in 2014, whereupon Mr Lounes applied for the issuance of a residence card as a family member of a European Economic Area (EEA) national.  This application was refused in May 2014, and the couple appealed to the High Court of Justice of England and Wales, who in turn referred the case to the Court of Justice.

Following a five-month deliberation which relied heavily on the interpretation of Article 21(1) of the Treaty on the Functioning of the European Union (TFEU), todays judgement is that:

 “… A non-EU national in Mr Lounes situation is eligible for a derived right of residence under Article 21(1) TFEU, on conditions which must not be stricter than those provided for by the directive or the grant of such a right to a third-country national who is a family member of an EU citizen who has exercised his right of freedom of movement by settling in a Member State other than the Member State of which he is a national.”

The Court considered that a denial of Ms Ormazabal’s right to build a family life with her non-EEA spouse would amount to her being treated as British citizen who has never left the UK, with a disregard for her retained Spanish origin, and for her exercised right to freedom of movement within the EU, and stating that:

“…it would be contrary to the logic of gradual integration in the host Member State that is inherent in Article 21(1) TFEU to hold that EU citizens in Ms Ormazabal ’s situation are to be deprived of the right to a normal family life in the host Member State because they have sought, by becoming naturalised in that Member State, to become more deeply integrated in that State.”

The outcome of this case has been greatly anticipated, as it sets a precedent for other cases involving dual nationality citizens and the disparities between EU and UK law in relation to marriage ahead of the United Kingdom’s departure from the EU.