UKBA’s new EEA regulations (The Immigration (European Economic Area) (Amendment) Regulations 2012) state that when an EEA national is also British, then the EEA free movement regulations do not apply to them:
“EEA national” means a national of an EEA State who is not also a United Kingdom national. (regulation 2, as amended)
This amendment of the definition of an EEA national reflects the ECJ’s judgment in the case of C-434/09 Shirley McCarthy v Secretary of State for the Home Department. (from the Explanatory Note at the bottom)“
Ms. McCarthy, in case C-434/09, was (1) not working or otherwise exercising any treaty rights and (2) had not previously asserted her Irish citizenship in a practical way, e.g. by holding an Irish passport. The court held that EU free movement law did not apply to her or her family. In their conclusion, the court limits the judgement to somebody:
“who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State”
These three careful qualifications of the ECJ judgement are entirely missing from these new UK regulations. UKBA has taken an extremely broad interpretation of the judgement!
Does it matter?
I know a lovely Dutch family who lives in the UK. They do all the curious things you might expect of Dutch people, such as skating on frozen canals, taking camper vans to far corners of the world, and eating Hagelslag on toast. They have two children who were born in the UK. Each child has a Dutch passport and clearly thinks of himself as “European”.
Under UKBA’s new interpretation of McCarthy, UKBA simply ignores the Dutch citizenship of each child for the purposes of free movement. According to UKBA, the entirety of the European free movement regulations simply no longer apply.
Should the children someday marry a person who is not from the EU, UKBA claims their spouse would not have a European right of free movement to enter the UK. Their only remaining free movement option would be if the
Dutch child had worked in a different EU member state and was now “returning” to the UK on the basis of EU law (ECJ 1992 Surinder Singh case).
On what basis could these
Dutch children themselves enter the UK? Remember that UKBA claims the European free movement regulations no longer apply to them, including Regulation 11 (on Europeans entering the UK). Good news is that if UKBA claims they are British, then they can always enter the UK even without a passport.
This rule also has significant implications for any EU citizen who decides to naturalize as a British citizen. Once naturalized, EU free movement law will no longer apply to their family members. Any family member will be required to enter the UK on the basis of traditional British law.
A Polish worker in the UK who naturalizes to be British after working and living in the UK for 6 years may be surprised to find that because of naturalizing, UKBA has disqualified them from using the free movement options they should have to bring their elderly parent(s) to the UK.
On a lighter note, a fun thought-experiment suggests this could solve other problems for UKBA. It gives UKBA the ability to eliminate all family member free movement to the UK and easily meet their “public commitments” to reduce immigration, all with only one act of parliament. Remember that citizenship policy is solely determined by each member state. Parliament could legislate that all citizens of other EU member states are now also British citizens. Instantly none of their family members would be able to enter the UK on the basis of EU free movement law (since each EU citizen is now also British!). And if any of those dual citizens does still come, they would do so as a returning British citizen, making the net immigration statistics even better.