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Brexit: ECJ rules against Home Office; Government sets out EU national registration scheme

14.11.2017 Immigration

Alan Platt

Alan Platt Director of Immigration

Jerry Conlan

Jerry Conlan Director of Immigration

The European Court of Justice has ruled that an EU citizen who takes British nationality does not lose the right to sponsor a non-EU spouse. This landmark decision will have a significant impact on thousands of EU nationals living in the UK who are married to a non-EU national.

The Home Office’s position, until now, is that freedom of movement rights no longer apply where an EU national has elected to obtain naturalisation as a British citizen. This meant that a naturalised EU national who marries a non EU national would be obliged to sponsor that person under UK immigration rules, which are much tougher.

The ECJ challenge followed the case of a Spanish national who moved to the UK, subsequently naturalised and then married an Algerian national. The court agreed with the Home Office that the free movement directive ceased to apply but stated that the husband had a “derived right” under the same rules.

Until now EU nationals in the UK have been cautious about getting a British passport because of the impact on their status as an EU migrant. This decision would appear to remove this barrier.
The UK Government is yet to set out it’s position on those with derived rights following Brexit.

In Recent News: Government Confirms that EEA Nationals Can Stay But Must Register

On 7 November 2017, the UK Home Office set out it’s position with regard to the rights of EEA Citizens living in the UK after Brexit. The main provisions are as follows:

  • Any EU national who arrives in the UK before Brexit will not be required to leave the country
  • All EU nationals must apply for a new residence card
  • Those living in the UK for more than five years will be granted settled status
  • A new, simpler, online application system will be introduced in 2018, with less evidence required than at present
  • The application must be made no later than two years after the Brexit date, which is likely to be 29 March 2019
  • Non EU family members will enjoy the same rights
  • An EU national arriving after Brexit will not qualify for a residence card
For more information on any of the above changes and amendments, contact our Immigration team on 

+44 (0) 20 7481 0010

Article authors:

Alan Platt Jerry Conlan