06.08.2018 Can Dual British Nationals Rely On Their EEA Nationality?

06.08.2018 Can Dual British Nationals Rely On Their EEA Nationality?

In the light of Brexit, the question of the rights enjoyed by a dual European and British national has become a critically important one. There is huge uncertainty amongst EU citizens and their family members living in the UK about their future status.

The question of whether a dual European and British national could exercise their EEA treaty rights in the UK has been going back and forth for many years.

The Government’s initial position when the EEA regulations first came into force in 2006 was that the family member of a dual national may exercise free movement rights. However, since the 2011 case of McCarthy v SSHD, where the Home Office and the European Court of Justice did not allow a British national, having obtained an Irish passport, to transfer her EEA free movement rights to her Jamaican husband, the policy has changed and British nationals were no longer allowed to transfer their treaty rights to their non-EEA family members. This subsequently led to a decline in naturalisation applications by EEA nationals.

Therefore, until recently the UK Government took the position that the family members of dual EU-UK citizens cannot benefit from EU free movement rights. This meant that any non-EEA family members would lose their right of residence in the UK, if their EEA sponsor obtained British citizenship.However, in last year’s case of Lounes v SSHD the European Court of Justice clarified that when an EEA national has exercised their treaty rights in the UK and has subsequently naturalised as a British citizen, the dual EEA national will be treated the same and their treaty rights could be transferred to their non-EEA family member, as long as they satisfy the other requirements of the EEA regulations.

On 24 July 2018 the Home Office amendments to the current Immigration (EEA) Regulations 2016, which transpose EEA free movement rights into UK law, to the benefit of certain dual EEA and British citizens, came into force.

The Home Office has amended the definition of an ‘EEA national’ in the Regulations. The definition will now extend to dual British and EEA nationals provided that they naturalised as British following a period of residence in the UK under the Regulations. This means that a national of an EEA State who is also a British citizen, where British citizenship was acquired after the EEA citizenship and after treaty rights had been exercised in the UK, may continue to be treated as an EEA national.

The definition does not extend to those individuals who acquired their EEA nationality after becoming British or to dual nationals who have never exercised free movement rights. This provision also does not apply if the EEA State of which a person is a national becomes a member State after that person acquired British citizenship then.

This is an important amendment which will be welcome news to the millions of EEA nationals currently in the UK, as many EEA nationals may choose to become British citizens and can be confident that their non-EEA family members will be allowed to make use of their free movement rights subsequently. 

The amendments to the regulations will now ensure that this becomes law. Therefore, those individuals who had previously delayed a British citizenship application because they were concerned about their family members’ rights of residence in the UK, can now considering applying for citizenship should they so wish.