Pro EU Citizen Rulings from Europe’s Top Court

Two recent rulings from the European Court of Justice (ECJ) have wide implications for EU citizens with self-employed status and for EU citizens in relationships with non-EEA nationals who are considering applying for British passports.

Self-employed who fall out of work retain worker status 

In Florea Gusa v Minister for Social Protection (Ireland), the ECJ ruled that self-employed EU citizens who fall out of work retain ‘worker’ status. The case concerned a Romanian National who worked as a self-employed plasterer in Ireland from 2008 to 2012. When work became scarce in the economic downturn, Mr Gusa applied for Job Seekers Allowance. His claim was rejected on grounds that he had no self-employed status and therefore had lost the right to reside.

The relevant provision in the UK’s EEA Regulations was litigated in 2010 in Tilianu v Secretary of State for Work and Pensions where the Court of Appeal ruled that self-employed EU citizens do not retain worker status after falling out of work, unlike their employed counterparts. 

However, the ECJ noted in Gusa that the Free Movement Directive distinguishes between economically active citizens and inactive citizens and students, not between the employed and self-employed. It also noted that drawing a distinction between the employed and self-employed would give rise to an unjustified difference in the treatment of these two categories of people (i.e. a person who has been self-employed for more than a year and contributed to that Member State’s social security and tax system would be treated in same way as a first time job seeker who has made no such economic contribution). 

Following Gusa, self-employed EU citizens who become unemployed retain their worker status and therefore the right to reside in the same way as people in employment who lose their jobs. The case will therefore help self-employed EU citizens seeking to build up 5 years’ permanent residence (or 6 years for a British citizenship application) who may have had periods of inactivity/unemployment.  

Family reunion rights

In Toufik Lounes v Secretary of State for the Home Department, the ECJ ruled that an EU citizen who moves to another Member State and acquires the nationality of that Member State retains family reunion rights under EU law.  The case  concerned a Spanish national, Ms Ormazabal, who has lived in the UK since first arriving to study in 1996. In 2009, she naturalised as a British citizen, whilst retaining her Spanish citizenship. In 2014, Ms Ormazabal married an Algerian national, Toufik Lounes, who had been living illegally in the UK (having overstayed on a visitor visa).

Mr Lounes’s subsequent application for an EC Residence Card was refused on grounds that Ms Ormazabal did not meet the definition of an EEA national under the EEA Regulations, as she was a British citizen.  

The ECJ noted that the EU’s freedom of movement rules are intended to promote the gradual integration of EU citizens who have exercised free movement rights into the society of the host Member State. Becoming naturalised is a means of becoming permanently integrated and removing those family reunion rights under EU law from EU citizens who take that step could hinder that right. 
 
As a result, the UK Home Office cannot lawfully refuse to grant Residence Cards or EEA family permits to non-EEA national family members of EU citizens simply because the EU citizen is also a British citizen. 

However, until the Home Office enshrines the ECJ Lounes judgment into formal policy, EU citizens considering naturalising as British citizens are advised to exercise caution, as they could still face practical difficulties securing UK immigration status for their non-EEA national family members.

Brexit implications

Despite these favourable rulings for EU citizens’ rights emanating from the EU’s top court, the future rights of EU citizens and their family members living in the UK remain uncertain, post-Brexit.

In its Technical Note published in November 2017, the UK Government indicated that EU citizens and their family members who are ‘lawfully resident’ in the UK before the specified date (likely to be the exit date of 29 March 2019) will be allowed to stay. The recent ECJ judgment means that family members currently in the UK falling within scope of Lounes are ‘lawfully resident’ and can acquire the Home Office’s new form of ‘settled status’. 

However, in November 2017 a leaked Home Office paper on Brexit indicates that EU citizens arriving after the specified date will not enjoy these same EU law rights to bring over non-EEA national family members. Unless an agreement is reached for non-EEA family members to retain such rights, it is likely that EU citizens will be subject to the harsher UK immigration rules on bringing family members to the UK currently imposed on British citizens, including a minimum income threshold of £18,600 and English language requirement. 

Favourable EU citizen rulings from the ECJ also raise questions as to its continuing role, post Brexit. Theresa May sent an open email entitled “Update for EU citizens living in the UK” on 11 December 2017, in which she stated “where appropriate, our courts will pay due regard to relevant ECJ case law”. The Prime Minister goes on to confirm in her email that the Government has agreed that for eight years, our UK courts will be able to choose to seek guidance from the ECJ before reaching a decision.  This may mean that the ECJ still has a role to play in the UK, in stark contrast to the Lancaster House speech on 17 January 2017 where the Prime Minister had drawn a red line over the ECJ having jurisdiction in British affairs.