Navigating Family Rights After Brexit: The Lounes Case and the Impact on European Citizens

Brexit has brought many uncertainties for many European citizens living and working in the UK regarding their and their families’ rights. The recent landmark case of Lounes C-165/16 confirmed a free movement for family members of European dual nationals, after the much-awaited consideration of the European Court of Human Rights. Previously, the Home Office refused Mr Toufik Lounes, an overstayed Algerian citizen the right to stay in the UK and live with his dual national spouse. His wife Spanish national was naturalised as a British Citizen in 2009 and currently holds two nationalities.

Mr Lounes applied for an EEA Residence Card but was refused. Since July 2012, EEA Regulations has been updated to preclude dual EEA and British citizens from benefiting from EU law. In particular, interpretation of “EEA national” in Regulation 2 has been amended to mean: “a national of an EEA State who is not also a British citizen”.

Settled Status in the UK refers to the immigration status granted to eligible EU, EEA, and Swiss citizens, as well as their family members, who were living in the UK before the end of the Brexit transition period (December 31, 2020). It allows individuals to continue living and working in the UK without any immigration restrictions. Settled Status is part of the UK government’s EU Settlement Scheme, which was introduced to protect the rights of EU citizens and their family members residing in the UK after Brexit. Once granted Settled Status, individuals are granted the right to stay indefinitely in the UK and enjoy various benefits and services.

Protecting Family Rights: The Impact of the Lounes Case on EU Citizens in the UK

The Home Office in effect incorporated McCarthy judgment issued in 2014 which determined that a person who holds the nationality of the host Member State and has never exercised their right of free movement and residence, does not benefit from the terms of the Free Movement Directive.

The application of the law has been challenged by Mr Lounes. On 14th November 2017, the ECJ ruled that wife had exercised her freedom of movement rights by going to and residing legally in another Member State, therefore she cannot be treated in the same way as an ordinary domestic citizen. It was stated that EU citizens should be able to continue to enjoy the right to lead a normal family life together with their family members in the host Member State after acquiring the nationality of that State. As Mr Lounes’ wife obtained citizenship as an addition to her nationality of origin, she can exercise her right to build a family life with her third-country national spouse.

Indefinite Leave to Remain (ILR) in the UK is an immigration status that grants an individual the right to live and work in the country without any time restrictions. ILR is also known as settlement or permanent residency. It allows individuals to stay in the UK for an indefinite period and provides them with a wide range of benefits, such as access to public funds, healthcare, and education.