As often, ECJ decisions sort of hard to parce in minutes, so more later. However the gist is, the Court makes a lot of valuable points — which TBH I thought were already obvious after McCarthy2 case – to explain that those EU nationals who have exercised Treaty Rights in another member states and eventually naturalised there, CANNOT be treated just as badly as those state’s own nationals who had never left it. The Court rules that denying residence to their post-naturalisation spouses would constitute deterrent to free movement’s important aim — ultimate integration in the host state. Post-naturalisation spouses of such dual nationals must, ECJ rules, be given right of residence “on conditions not worse than those of family members of EU citizens”.

Important CAVEAT though, is that the Court specifies that such right is not derived from the Directive 2004/38 and is therefore, we can assume — cautiously — not automatic. As far as I understand, they are talking about a derivative right, which (like, for example, rights of unmarried partners)  may be subject to a positive confirmation by the host state – Home Office — and not arise automaticaly (eg at the moment of marriage, or arrival in the UK, by its mere fact). This is to be confirmed, as I think the text leaves interpretation a big vague. HO will not be prevented from taking a less restrictive approach and simply applying the same procedure and conditions (for instance if it no longer cares because it may think it is about to become inconsequential). It will be very interesting to see what EXACTLY our court ultimately rules in the  underlying Lounes case.

UNLIKE Advocate Bot, the Court does not appear to make a distinction for those who are pre-naturalisation spouses, for neither continuation nor new assumption of residence after sponsor’s naturalisation.

The decision seems to focus specifically on facts in Lounes (post-naturalisation marriage) and is capable of now  creating a lot of unfortunate confusion for two other relevant categories:

(a) those who had married, and enjoyed residence under the Directive, before their sponsor naturalised. HO most recently (after McCarthy2) assumed that family member’s rights terminate, but  I can only hope will automatically now assume that those rights continue. I hope. But we don’t know, because ECJ ruled nothing specifically for such set of facts, which are sadly most common facts, more commons than the post-naturalisation spouses like in Lounes.

(b) those who had married the EU national before they naturalised, but only entered the UK afterwards. It woudl be a very small subset of those who do not at the same time fall within (a), but it exists. Advocate Bot appeared to make a distinction between pre-naturalisation and post-naturalisation spouses.

We shall see how this plays out with HO in practice.

Ruling here

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