People who are nationals of the countries comprising the European Union are known, in European Union law, as “Union Citizens”. They and their family members are free to move throughout the European Union working and providing services or studying, or just being self sufficient.
Union Citizens who do this are said to be “exercising Treaty Rights” – which refers to the rights conferred by the original Treaty of Rome in 1959 and those which followed it, all of which have more recently been consolidated in the Treaty of Lisbon which came into force in December of 2009.
This means that Union Citizens who are working in the UK have the right to be joined by the members of their family, wherever those family members may come from. Family members include spouses, and the UK is therefore required to grant admission to the UK to anyone who is married to a Union Citizen (unless the marriage is not a genuine one).
Union citizens and their family members have the right to be admitted to another Member State for an initial period of three months. If they wish to stay longer, they have to show that they are exercising Treaty Rights.
The rights of free movement which Union citizens and their family members have are set out in the “Citizens’ Directive”, which is implemented in the UK by the Immigration (European Economic Area) Regulations 2006. In the Regulations people who are exercising treaty rights are called “qualified persons.”
By contrast with family members of Union citizens exercising Treaty Rights in the UK – the spouses of British citizens have no such automatic right to be with their husbands or wives. They have to satisfy the requirements of the Immigration Rules.
The European Court of Justice’s ruling on Thursday 5 May 2011 in McCarthy v Secretary of State for the Home Department was in response to the United Kingdom’s Supreme Court having referred questions to the European Court regarding the scope of free movement rights.
The case was referred because of its particular facts. Mrs Stella McCarthy is a citizen of the United Kingdom. She married her husband, a Jamaican national in 2002. He did not have leave to remain in the UK. After she got married Mrs McCarthy applied for and was granted Irish nationality.
In 2004 Mrs McCarthy and her husband then applied to the Secretary of State (of the UK) for a registration certificate and a residence card as, respectively, a Union citizen and her spouse. Their applications were refused on the basis that Mrs McCarthy was not a “qualified person”.
Her appeal against that decision was dismissed by the Asylum and Immigration Tribunal and so was her further reconsideration application. The Court of Appeal granted her permission to appeal, but also dismissed her appeal. Thereafter the Supreme Court made its reference to the European Court of Justice.
The Supreme Court asked the European Court whether somebody who had dual nationality – of both Ireland and the UK and who had remained in the UK all her life could be a beneficiary within the meaning of Article 3 of the Citizens’ Directive.
It also asked the European Court whether someone who hadn’t ever been a “qualified person” could acquire the right of permanent residence in a Member State by living there lawfully for a period of five years, under Article 16 of the Directive.
Article 3 states:
“This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.”
The Court found that Mrs McCarthy could not be a beneficiary under Article 3. The entire structure of the Directive was predicated on the idea of movement between Member States. Somebody who was a national of two Member States hadn’t made use of the right of freedom of movement.
Moreover because the rights of residence described in the Directive referred expressly to Union citizens’ residing in “another Member State” or in “the host Member State” they were therefore describing rights to live in a Member State of which the Union Citizen was not a national.
Having stated clearly that Mrs McCarthy couldn’t be a beneficiary of the Directive the Court stated that it therefore did not need to consider the second question referred to it by the Supreme Court, about rights to permanent residence.
However the Court did consider whether Article 21 of the Treaty on the Functioning of the European Union was applicable to Mrs McCarthy. That Article, by reference to Article 20, sets out the rights which Union citizenship confers on citizens.
It was this right which led the European Court in Gerardo Ruiz Zambrano v Office national de l'emploi C-34/-09 back in March of this year to conclude that the children of Colombian nationals who had been born in Belgium and who were therefore both Belgian nationals and Union citizens had the right for their parents to be granted work and residence permits in Belgium.
The European Court compared Mrs McCarthy’s case to the Zambrano case but decided that, in contrast with the situation it had to consider in that case, there was nothing being done or not being done by the UK in respect of Mrs McCarthy which had the effect of depriving her of the substance of her rights as a Union Citizen. It pointed out that in Zambrano the Belgian’s state’s failure to grant the children’s parents permission to reside and work in Belgium was likely to have the effect of obliging them (the children) to leave the European Union.
By contrast Mrs McCarthy had an unconditional right of residence in the UK.
This reasoning is curious – since the effect of the UK government’s refusal to grant her and her husband the necessary residence documents is, it would appear, that Mrs McCarthy’s husband may have to leave the UK. Therefore staying with her family would require Mrs McCarthy to leave as well.
It’s difficult to avoid the conclusion that the European Court was making a distinction between the rights enjoyed by children and those enjoyed by adults – although it should be made clear that there’s nothing in the text of the judgment to suggest this played any part in its reasoning.
Rights of residence under European law for nationals of EEA states and their family members are complex and are frequently being referred to the European Court of Justice for resolution. Anyone who may be affected by this ruling, or who is concerned as to their status within the United Kingdom is advised to seek professional legal advice.