Legal Updates

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

Written by Alan Platt, Jerry Conlan

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 7493 6151

Contact the Author

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Alan Platt

I have over 40 years’ experience working in and practising United Kingdom immigration and nationality law, in the Home Office and in private legal practise. I began working for the Home Office UK Border Force as an Immigration Officer in 1983 and after spending four years based at Heathrow Airport I was seconded to the Foreign & Commonwealth Office and posted to Nigeria for five years to work in the British High Commission in Lagos as a Consular & Visa Officer, dealing with a full range of UK visa applications, British Citizenship and consular matters. Upon my return to the UK I worked at Stansted Airport and then in the UK Border Force Headquarters in Croydon, training air and sea carriers operating to the United Kingdom on the detection of passengers travelling with forged and counterfeit documentation and developed and implemented legislation known as The Carriers Liability Act. In 2002 I formed and managed Platt & Associates, a United Kingdom immigration, nationality and work permit law consultancy, advising clients in the corporate and private sectors in these areas. In 2016 we merged with Gordon Dadds LLP and from this new platform continue to provide clients with clear and well founded advice on business, family and work permit options within the United Kingdom Immigration Rules and the EEA Regulations. I currently spend 100% of my time at Gordon Dadds advising clients on UK immigration and nationality matters. Outside of work my interests are classic cars and I am an active member of the MG Car Club. I also enjoy travelling and spending time with my family.

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Jerry Conlan

I spent over six years working as a Manager within the Home Office in the department dealing with work permits and sponsor licence applications. I have practised United Kingdom immigration law in the private sector for over fifteen years and during that time headed the immigration department at KPMG. I have considerable experience dealing with complex work permit applications along with business and investment based immigration routes into the United Kingdom.

Gordon Dadds