Toufik Lounes v Secretary of State for the Home Department.
Date: 2017-11-14
28


As a preliminary point, it should be noted that, in accordance with settled case-law of the Court, even though, formally, the referring court has limited its question to the interpretation of Article 3(1) of Directive 2004/38, that does not prevent the Court from providing the referring court with all the elements of interpretation of EU law which may be of assistance in adjudicating on the case before it, whether or not that court has specifically referred to them in its question (see, by analogy, judgment of 5 May 2011, McCarthy, C‑434/09, EU:C:2011:277, paragraph 24 and the case-law cited).
31


According to settled case-law of the Court, the purpose of Directive 2004/38 is to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States which is conferred directly on citizens of the Union by Article 21(1) TFEU. Recital 5 of the directive states that that right should, if it is to be exercised under objective conditions of dignity, be also granted to the family members of those citizens, irrespective of nationality (judgment of 18 December 2014, McCarthyand Others, C‑202/13, EU:C:2014:2450, paragraphs 31 and 33 and the case-law cited).
32


Directive 2004/38 does not however confer any autonomous right on family members of a Union citizen who are third-country nationals. Thus, any rights that may be conferred on those nationals by the directive are derived from the rights which the Union citizen concerned enjoys as a result of having exercised his freedom of movement (see, to that effect, judgment of 18 December 2014, McCarthyand Others, C‑202/13, EU:C:2014:2450, paragraph 34 and the case-law cited).
33


As the Court has held on several occasions, it follows from a literal, contextual and teleological interpretation of Directive 2004/38 that the directive governs only the conditions determining whether a Union citizen can enter and reside in Member States other than that of which he is a national and does not confer a derived right of residence on third-country nationals who are family members of a Union citizen in the Member State of which that citizen is a national (see, to that effect, judgments of 12 March 2014, O. and B., C‑456/12, EU:C:2014:135, paragraph 37, and of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraph 53).
34


First, it is clear from the wording of Article 3(1) of Directive 2004/38 that Union citizens who move to or reside in a ‘Member State other than that of which they are a national’, and their family members as defined in Article 2(2) who accompany or join them, fall within the scope of the directive and are beneficiaries of the rights conferred by it (judgment of 12 March 2014, O. and B., C‑456/12, EU:C:2014:135, paragraph 38).
35


Secondly, other provisions of Directive 2004/38, in particular Article 6, Article 7(1) and (2) and Article 16(1) and (2), refer to the right of residence of a Union citizen and to the derived right of residence conferred on the family members of that citizen either in ‘another Member State’ or in ‘the host Member State’ (judgment of 12 March 2014, O. and B., C‑456/12, EU:C:2014:135, paragraph 40 and the case-law cited).
36


Thirdly, although, as has been stated in paragraph 31 of this judgment, Directive 2004/38 aims to facilitate and strengthen the exercise of the right of Union citizens to move and reside freely within the territory of the Member States, the fact remains that the subject matter of the directive concerns, as is apparent from Article 1(a), the conditions governing the exercise of that right (judgments of 5 May 2011, McCarthy, C‑434/09, EU:C:2011:277, paragraph 33, and of 12 March 2014, O. and B., C‑456/12, EU:C:2014:135, paragraph 41).
37


The Court has accordingly held that, since, under a principle of international law, a Member State cannot refuse its own nationals the right to enter its territory and remain there and since those nationals thus enjoy an unconditional right of residence there, Directive 2004/38 is not intended to govern the residence of a Union citizen in the Member State of which he is a national. Consequently, in view of the case-law referred to in paragraph 32 of this judgment, nor is the directive intended to confer, in the territory of that Member State, a derived right of residence on family members of that citizen who are third-country nationals (see, to that effect, judgments of 5 May 2011, McCarthy, C‑434/09, EU:C:2011:277, paragraphs 29, 34 and 42, and of 12 March 2014, O. and B., C‑456/12, EU:C:2014:135, paragraphs 42 and 43).
38


In the present case, it is common ground that Ms Ormazabal, who is a Spanish national, exercised her freedom of movement by moving to and residing in a Member State other than that of which she was a national when she left Spain for the United Kingdom in 1996. It is also common ground that she had the status of a ‘beneficiary’ of Directive 2004/38 within the meaning of Article 3(1) thereof and that she was resident in the United Kingdom under Article 7(1) or –– as the United Kingdom Government appears to accept –– Article 16(1) of the directive, at least until she acquired British citizenship by naturalisation.
39


However, as the Advocate General has noted in points 48 and 63 of his Opinion, Ms Ormazabal’s acquisition of British citizenship gave rise to a change in the legal rules applicable to her, under both national law and the directive.
40


Since then, Ms Ormazabal has in fact been living in one of the Member States of which she is a national and consequently enjoys an unconditional right of residence there in accordance with the principle of international law mentioned in paragraph 37 of this judgment.
41


It follows that, since she acquired British citizenship, first, Ms Ormazabal has ceased to fall within the definition, recalled in paragraph 34 of this judgment, of a ‘beneficiary’ within the meaning of Article 3(1) of Directive 2004/38. Secondly, in view of the reasoning set out in paragraphs 36 and 37 of this judgment, the directive no longer governs her residence in the United Kingdom, as that residence is inherently unconditional.
42


That being so, it must be held that Directive 2004/38 has not applied to Ms Ormazabal’s situation since she was naturalised as a British citizen.
44


In the light of the case-law referred to in paragraphs 32 and 37 of this judgment, her spouse, Mr Lounes, who is a third-country national, likewise does not fall within that definition and thus cannot benefit from a derived right of residence in the United Kingdom on the basis of Directive 2004/38.
46


It should be recalled that the Court has already acknowledged, in certain cases, that third-country nationals, family members of a Union citizen, who were not eligible, on the basis of Directive 2004/38, for a derived right of residence in the Member State of which that citizen is a national could, however, be accorded such a right on the basis of Article 21(1) TFEU (see, to that effect, judgments of 12 March 2014, O. and B., C‑456/12, EU:C:2014:135, paragraphs 44 to 50, and of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraph 54).
47


However, like Directive 2004/38, Article 21(1) TFEU does not confer any autonomous right of residence on a third-country national; rather it confers only a right derived from the rights enjoyed by the Union citizen concerned (judgments of 8 November 2012, Iida, C‑40/11, EU:C:2012:691, paragraphs 66 and 67, and of 12 March 2014, O. and B., C‑456/12, EU:C:2014:135, paragraph 36).
48


Thus, a derived right of residence of a third-country national who is a family member of a Union citizen exists, in principle, only when it is necessary in order to ensure that the Union citizen can exercise his freedom of movement effectively. The purpose and justification of a derived right of residence are therefore based on the fact that a refusal to allow such a right would be such as to interfere, in particular, with that freedom and with the exercise and the effectiveness of the rights which Article 21(1) TFEU affords the Union citizen concerned (see, to that effect, judgments of 8 November 2012, Iida, C‑40/11, EU:C:2012:691, paragraph 68; of 12 March 2014, O. and B., C‑456/12, EU:C:2014:135, paragraph 45; and of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraphs 36 and 73).
50


The Court has already held that there is a link with EU law with regard to nationals of one Member State who are lawfully resident in the territory of another Member State of which they are also nationals (see, to that effect, judgment of 8 June 2017, Freitag, C‑541/15, EU:C:2017:432, paragraph 34).
52


The rights which nationals of Member States enjoy under that provision include the right to lead a normal family life, together with their family members, in the host Member State (see, by analogy, judgment of 25 July 2008, Metock and Others, C‑127/08, EU:C:2008:449, paragraph 62).
56


In the second place, the rights conferred on a Union citizen by Article 21(1) TFEU, including the derived rights enjoyed by his family members, are intended, amongst other things, to promote the gradual integration of the Union citizen concerned in the society of the host Member State.
61


The conditions for granting that derived right of residence must not be stricter than those provided for by Directive 2004/38 for the grant of a derived right of residence 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 that of which he is a national. Even though Directive 2004/38 does not cover a situation such as that mentioned in the preceding paragraph of this judgment, it must be applied, by analogy, to that situation (see, by analogy, judgments of 12 March 2014, O. and B., C‑456/12, EU:C:2014:135, paragraphs 50 and 61, and of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraphs 54 and 55).