A case was brought to the European Court of Justice by a Spanish woman, who had dual citizenship status with Spain and the UK, where the UK denied her Algerian husband residency.
In light of Directive 2004/38/EC the court raised the following question:
“Where a Spanish national and Union citizen:
moves to the United Kingdom, in the exercise of her right to free movement under Directive [2004/38]; and
resides in the United Kingdom in the exercise of her right under Article 7 or Article 16 of Directive [2004/38]; and
subsequently acquires British citizenship, which she holds in addition to her Spanish nationality, as a dual national; and
several years after acquiring British citizenship, marries a third country national with whom she resides in the United Kingdom; “
The court held that, under Directive 2004/38/EC, the Algerian husband does not have the right of residency. However, under Article 21(1) of the Treaty on the Functioning of the European Union the husband is eligible for the right of residency. Although the treaty does not explicitly provide for the right of third country nationals but the court held that the EU citizen’s right to be able to move freely would be infringed if this right of a third country national does not exist. And so, a third country national’s right to residency only exists through the EU citizen spouse’s right.