- BY Colin Yeo
McCarthy judgment available
THANKS FOR READING
Older content is locked
A great deal of time and effort goes into producing the information on Free Movement, become a member of Free Movement to get unlimited access to all articles, and much, much more
TAKE FREE MOVEMENT FURTHER
By becoming a member of Free Movement, you not only support the hard-work that goes into maintaining the website, but get access to premium features;
- Single login for personal use
- FREE downloads of Free Movement ebooks
- Access to all Free Movement blog content
- Access to all our online training materials
- Access to our busy forums
- Downloadable CPD certificates
The hotly anticipated (er, by EU law geeks and the parties mainly) judgment in McCarthy v United Kingdom (Case C-434/09) is now out. The appeal was dismissed: dual nationals living in a country of their nationality who have never exercised free movement rights cannot rely on the Citizens’ Directive (2004/38) or on Article 21 TFEU. Or, in the memorable words of the Court of Justice itself:
1. Article 3(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, must be interpreted as meaning that that directive is not applicable to a Union citizen 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.
2. Article 21 TFEU is not applicable to a Union citizen 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, provided that the situation of that citizen does not include the application of measures by a Member State that would have the effect of depriving him of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen or of impeding the exercise of his right of free movement and residence within the territory of the Member States.
The first point to make is that the ECJ holds that a person who has never moved between Member States and is not a worker, self employed and so on (a ‘qualified person’ in our domestic terminology) cannot benefit from the right to move and reside freely imparted by the Citizens’ Directive. See paragraphs 30 to 43. The reasoning here is interesting because the Court seems to be at pains to emphasise that the right of free movement and residence in the Citizens’ Directive is a unitary right, not two different rights, as the Court seemed to suggest in Zambrano in relation to Article 20 TFEU. The outcome is certainly consistent with Zambrano, though, as in Zambrano the Court also held that the Directive could not apply.
The Court then goes on to consider Article 21 TFEU. This in itself puzzles me, because the judgment in Zambrano is specifically addressed to Article 20 TFEU. For the life of me, I cannot work out the difference between the two as one seems to repeat the other, so it is difficult to see what the significance is of the different legal basis for McCarthy and Zambrano.
Article 20(2) provides as follows:
Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
(a) the right to move and reside freely within the territory of the Member States…
Article 21(1) provides thus:
Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect…
Anyway, the Court goes on to distinguish the facts of McCarthy from the facts in Zambrano:
49. However, no element of the situation of Mrs McCarthy, as described by the national court, indicates that the national measure at issue in the main proceedings has the effect of depriving her of the genuine enjoyment of the substance of the rights associated with her status as a Union citizen, or of impeding the exercise of her right to move and reside freely within the territory of the Member States, in accordance with Article 21 TFEU. Indeed, the failure by the authorities of the United Kingdom to take into account the Irish nationality of Mrs McCarthy for the purposes of granting her a right of residence in the United Kingdom in no way affects her in her right to move and reside freely within the territory of the Member States, or any other right conferred on her by virtue of her status as a Union citizen.
50. Indeed, the failure by the authorities of the United Kingdom to take into account the Irish nationality of Mrs McCarthy for the purposes of granting her a right of residence in the United Kingdom in no way affects her in her right to move and reside freely within the territory of the Member States, or any other right conferred on her by virtue of her status as a Union citizen.
The reasoning seems to be simply that the refusal to grant residence to Mr McCarthy did not have the effect of depriving Mrs McCarthy of the genuine enjoyment of the substance of the rights conferred by virtue of her status as a Union citizen. Quite why is unclear — it is arguable that she would be forced to leave the Union in order to live with her husband if he is not granted residence. One can speculate as to the underlying reasons for this judgment, but it really does just amount to speculation.
So, in short, it seems that Zambrano applies to children and does not necessarily apply to dual national spouses who have never moved between Member States and are not qualified persons.
This will surely not be the last word on the subject of citizenship rights and ‘constructive deportation’ of Union citizens by failure to grant residence to their family members.
SHARE
16 responses
I believe the reason for Mrs Mccarthy not succeeding is because of her circumstance stipulated in Paragraph 14 of the Judgement. Had she been a worker, i suspect she would have succeeded.
Paragraph 46 -49 of the Judgement, shows that Zambrano may have a wider scope that first anticipated.
It is yet to be seen, if a Union citizen working in a memberstate of her nationality, whose spouse is facing removal, will not claim a right under Zambrano.
I don’t think the UK willl be right to stop Irish Citizens who also hold British Citizenship too from benefiting from the directive, if the Irish national is working in the UK.
See paras 39-43. Directive 2004/38 does not apply where the dual British/other EU national has not exercised freedom of movement. In that case it can’t apply in the country of citizenship. So McCarthy being a worker may have led the HO to grant the EEA FP and prevented this case, but her becoming a worker in the UK would not now allow her husband to qualify for an EEA FP. Whereas it would if she for example became a worker in France.
Thanks for the news FM. Do you or any other experts know how the HO might react, whether they might stop treating non-EEA family members of dual British/other EU citizens under the European rules where no freedom of movement right was exercised?
I guess reverse discrimination is here to stay unless it turns out that Zambrano can be applied to (childless) spouses of British citizens.
I am wondering what would happen if Mrs McCarthy were to renounce her British citizenship? She would then be an Irish national only, working in the UK. Presumably this would mean she was exercising Treaty rights? I realise this will not help everyone, but it might be a way forward for any of the countless thousands of dual Irish/British nationals in the UK, at least some of whom have non-EEA relatives.
Can Mrs McCarthy renounce her UK citizenship, so she is only Irish?
Renouncing her British Citizenship, will not in any way help Mrs McCarthy. She is not exercising an EU treaty rights, which is why she failed in her claim. Had she been a worker or Self-employed person, the case would have been different.
Having renounced her UK nationality, Ms McCarthy might not have met the conditions of the Directive but she could in principle still rely on Article 21 TFEU and its direct effect …
If Mrs McCarthy renounced her British citizenship, her husband would qualify for an EEA FP if she were exercising treaty rights.
Now that the court has ruled that the other EU (here: Irish) citizenship has no relevance when the person also has the citizenship of the state of residence (here: UK) and has not exercised freedom of movement rights, as long as she remains a British citizen it does not matter if she would be a qualified person, were she not a British citizen.
(It remains to be seen what attitude the HO takes to this, but that is the legal position. The German government will be relieved, their administrative rules provide this already and are now known to conform to EU law.)
Although Irish citizens have deemed ILR under UK law, renouncing British citizenship would be an extreme step to take when instead meeting the national rules for a UK spouse visa may become possible and/or Mrs McCarthy could exercise treaty rights in another EEA state and the couple either remain there or then use ECJ Singh to reside in the UK if the British citizen is employed or self-employed in the other EEA state.
What get me is the acrobatics involved to jump over and dismiss earlier ECJ case law.
ECJ Case C-148/02 Carlos Garcia Avello v Belgium
It is not permissible for a Member State to restrict the effects of the grant of the nationality of another Member State by imposing an additional condition for recognition of that nationality with a view to the exercise of the fundamental freedoms provided for in the Treaty.
How would that case be relevant in a member state whose nationality is not lost? For eg British resident British citizen acquires Irish citizenship? That person is still in the UK as a holder of right of abode, under McCarthy whether their family members can apply under 2004/38 would appear to depend on any movement to other EEA states.
The decision is probably relevant when member state citizenship is lost. If for example a Danish citizen acquires British citizenship, Danish citizenship is lost under that country’s ban on multiple citizenship. Denmark cannot then refuse to accept British citizenship as regards exercising treaty rights in Denmark.
An interesting blog, thanks for the link, and interesting to see that Ireland is reefusing 2004/38 applications to family members of dual Irish/other EU nationals.
So is it that Mrs McCarthy is not a Worker/Self Employed/student (qualifying person), or is it that she has not “moved”?
If, for example, a French person who was born in UK (post 1982) and never left the UK, was working and got married to a non-EU person, would the spouse be entitled to make an EC38 application?
Would the situation be different if the French person had acquired a British passport under say the first 10 years spent in UK rule?
Would the situation also be different if the French person was born pre 1983 when Jus Soli rules applied?
Legally it is that she has not moved.
To your question on the French citizen, that person’s spouse could until now apply for an EEA family permit if the French citizen is exercising treaty rights or is already a permanent resident by virtue of having exersied treaty rights for five years. (British citizenship and the attached right of abode do not make one a permanent resident for the putpose of 2004/38.)
I say “until now” because this has been HO policy. That’s why Mr McCarrth was refused his EEA FP, as Mrs McCarthy was not exercising treaty rights. It remains to be seen whether HO policy is changed, however grants would logically have no legal effect. That’s the confusing part because that’s how this case arose. It was then the court which chose to ask the ECJ whether 2004/38 would apply at all in this situation and the ECJ said no.
So the ECJ has now ruled that, where the dual national has not exercised rights to free movement, the directive does not apply. (In other words, having two EEA nationalities is not of benefit relative to having one EEA nationality, as far as applications from family members are concerned.)
The HO is under no obligation to approve an application under 2004/38 from the spouse of the dual French/British citizen whether that dual citizen is (deemed to be) exercising treaty rights or not, unless that dual citizen has exercised rights to free movement in another EEA state as per ECJ Singh (and presumably not including France, because the person would be in France as a citizen, not an EEA national needing to exercise treaty rights to remain longer than three months).
As for when and how British citizenship was acquired: if the person has always lived in the UK, the above would seem to apply. However that’s open to speculation. (French only by birth, a few years in the UK with a right of residence through parents, then British citizenship through MN1 registration and years or decades later the question arises, did the person exercise free movement rights which then enable their spouse to apply under2004/38? That I’m not sure, but I doubt it. There was no movement between member states. Even in a different case where there was movement and the family member now wishing to apply was not a family member when there was movement, there may be room for court interpretations. The current EEA rules would not include such family members under ECJ Singh.)
Mutly – Many thanks for that.
Ouch, it has become overly complex.
Whatever became of the principle of Legal Certainty?
If someone was a British Citizen, living (and a worker) in UK all their life, but acquired Irish citizenship/passport through their parents, and obtained a permanent residence certificate certifying from the authorities that they are an Irish national living in the UK with the right of permanent residence, would their spouse/partner be eligible for residency under the directive?
Would renouncing the British citizenship make any difference?
To me, I will say what is it for having a dual nationality when the other one is not recognized, the Northern Ireland should wise up and know they only belong to one national. Either Irish or British and this will be a very big problem in Northern Ireland for the citizen; many that want Northern Ireland to be Irish will be happy with this ruling and can use that as a campaign
Should Mrs McCarthy return to Ireland she will face the same problem as now in the UK. So her freedom of movement is limited to 25 member states were others can go to 26.