Kovacevic (British citizen – Art 21 TFEU) Croatia [2018] UKUT 273 (IAC) is about whether EU free movement law protects dual nationals (i.e. someone who is a citizen of the UK and another EU country) who have never exercised their EU free movement rights. The Upper Tribunal ruled that a dual national, who has always relied on their British nationality to reside in the UK, cannot invoke EU law in order to obtain residence rights for their partner.

Family reunion rights under EU law

The issue in this appeal arose because EU law is more generous than UK immigration law in allowing the family members of an individual with residency rights to join their relative in the UK. If possible, the family member of an dual national would want to rely on their status as the relative of an EU national rather than apply for leave to remain as the relative of a British citizen.

Ms Kovacevic is a dual British and Croatian national. She entered the UK in 1997 and naturalised as a British citizen in 2007. Importantly, she became a British citizen before Croatia joined the EU in 2013, which meant that it was never necessary for her to rely on EU free movement rights to live in the UK. Ms Kovacevic and her husband, who is an Algerian national, applied for EEA residency cards in 2014. After some initial confusion Ms Kovacevic was granted a residency card, but her husband was not. The Secretary of State for the Home Department later revoked the card and Ms Kovacevic appealed that decision. The First-tier Tribunal allowed the appeal.

The impact of Lounes

By the time the case reached the Upper Tribunal the critical issue was the interpretation of the Court of Justice of the European Union decision in Case C-165/16 Lounes v Secretary of State for the Home Department, which was still pending when the First-tier appeal was heard.

In Lounes , the Court of Justice considered a very similar situation to that of the present appeal, with the key difference that the dual national in question had only naturalised as a British citizen after several years of living in the UK by exercising her free movement treaty rights. The court ruled that her non-EU partner must be granted residence rights to safeguard the effectiveness of Article 21 of the Treaty on the Functioning of the European Union, which guarantees the principle of free movement. The judges noted that any other result would be “contrary to the underlying logic of gradual integration” because it would mean that an EU national seeking to naturalise in another member state would be in a worse position than one who did not seek to naturalise.

The Upper Tribunal held that Secretary of State was bound to succeed in this appeal following the decision in Lounes because Ms Kovacevic had never exercised treaty rights. Refusing residency status to her husband had no effect of discouraging free movement. This case was a “purely domestic situation”, which had already been considered by the Luxembourg court in C-434/09 McCarthy v Secretary of State for the Home Department. That authority bound the Upper Tribunal to allow the appeal:

Although the claimant has not resided in the UK for her entire life, she has never, in common with Mrs McCarthy, exercised any Treaty rights. Her admittance to and residence in the UK was accomplished through the provisions of domestic immigration law. After she naturalised as a British citizen her unconditional residence flowed from that status, as did her right to work. In similar vein to Mrs McCarthy, the claimant enjoys the status of a Union citizen under Article 20 TFEU and can rely on the rights pertaining to that status, including the right to free movement under Article 21. The revocation of her registration document does not have the effect of depriving her of the genuine enjoyment of the substance of the rights associated with being a Union citizen, and it does not impede the exercise of her right to move and reside freely within the territory of other Member States. In short, there is nothing preventing her from exercising her free movement rights.

This appeal is a consequence of the depressing reality that following changes to the Immigration Rules for spouses a few years ago, it is easier for non-EEA nationals to acquire residency rights through their partner being European rather than British. That product of the rules is perverse, but there can be no dispute with how the Upper Tribunal applied the law in this case. That it would have been better for Ms Kovacevic to have ignored her understandable desire to become a citizen of this country is evidence that the Immigration Rules on the partners of British citizens are in urgent need of reform to come back into line with European standards.