Today in (C-165/16), the ECJ enhanced the concept of derived right of residence directly from Article 21(1) TFEU.
The case at issue concerns a Spanish national, moved to the United Kingdom and later became a naturalised British citizen, while retaining her Spanish nationality, and her husband, an Algerian national, entered the United Kingdom on a six-month visitor visa and then overstayed illegally. The application for a residence card as a family member of an EEA national had been refused on grounds of national law in the UK. His spouse, was no longer regarded as a mobile EEA citizen because she had acquired British nationality, even though she had also retained her Spanish nationality.
Advocate General Bot, observed that considering the case law on the ECJ, on the one hand, the Algerian national is not entitled “on the sole basis of the provisions of Directive 2004/38”, to a derived right of residence in the Member State of which his spouse is now a national, ,but on the other hand, “the effectiveness of the rights conferred by Article 21(1) TFEU demands that Union citizens, ____ who have acquired the nationality of the host Member State following and by reason of residence under and in conformity with the conditions set out in Article 16 of the directive, should be able to continue the family life they have until then led in that State with their spouse, a third-country national.”
Under Article 21(1) TFEU, and subject to its implementing measures, Member States must permit Union citizens who are not their nationals to move and reside within their territory with their spouse and, possibly, certain members of their family who are not Union citizens.
In Singh (C-370.90), in the context of derived right of residence to a third-country national, the ECJ identified the concept of EU citizen who exercised the right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national and return to his Member State of origin,
In O. and B.(C-456/12), the Court establishes the principle of right for the Union citizen to return to his Member State of origin, in respect of which the conditions for granting in that State a derived right of residence to the third-country national who is a member of his family may not be stricter than those provided for by the Directive 2004/38.
In the present case and in the same context, the Advocate General Bot, suggested a new concept: “Union citizens who have acquired the nationality of the Member State in which they have genuinely resided pursuant to and in conformity with the conditions set out in Article 16 of Directive 2004/38 and have during that period created a family life with a third-country national.”
The substance of rights invoked is the same: to grant the effectiveness of Article 21(1) TFEU, the provisions of Directive 2004/38 should apply mutatis mutandis.
The situations are not similar. However, the ratio decidenti in the previous cases (if the third-country national would not have derived right of residence, the worker, a Union citizen, could be deterred from leaving the Member State of which he is a national in order to pursue gainful employment in another Member State) and the ratio decidenti in the present case (to continue the family life which she has started, the EU national would be forced to leave that State to move to another Member State in order to be able to claim once again the rights conferred by Directive 2004/38), are both determined by the effectiveness of Article 21(1) TFEU.
Following the Opinion of Advocate General Bot, the ECJ held that although Directive 2004/38/EC does not confer derived right of residence:
“The third-country national is however eligible for a derived right of residence under Article 21(1) TFEU, on conditions which must not be stricter than those provided for by Directive 2004/38 for the grant of such a right to a third-country national who is a family member of a Union citizen who has exercised his right of freedom of movement by settling in a Member State other than the Member State of which he is a national”.