Guest Post by Kate Lewis, ABL Solicitors LLP. Kate worked on the McCarthy case in the Court of Appeal stage and referring it to the ECJ.
The long awaited judgment of the ECJ in McCarthy was handed down earlier this month. It was a disappointing, but in light of the opinion of the Advocate General of November 2010, an unsurprising result.
Mrs McCarthy, a dual Irish and British Citizen who had never exercised her rights of free movement or her Treaty rights within the UK applied for permanent residence under Article 16 of the Directive 2004/38/EC. The applicant’s case was that she had resided legally in the Union for over 5 years and therefore had the right of permanent residence in the UK.
Since Mrs McCarthy is a British Citizen why would she want to acquire permanent residence as an EEA citizen?
Residence as EEA National
Mrs McCarthy, who is married to a Third Country National, who himself has no leave to enter or remain in the UK, sought to benefit from the provisions of EEA law so that she and her husband could live together in the UK. By applying for permanent residence as an EEA national she had hoped to pass on a TCN right to reside to her husband under EEA law.
However, as she was not working or otherwise exercising a Treaty right, she sought to rely on the provisions of the EC Directive 2004/38 and applied for a residence permit for herself and a residence document for her spouse (application made in 2004). The application was refused and subsequent appeals in front of the Tribunal and then the Court of Appeal were unsuccessful.
The Appellant applied for permission to appeal to the Supreme Court, who stayed the application and referred the matter to the ECJ for a preliminary ruling.
The Supreme Court referred the following questions to the ECJ:
1. Is a person of dual Irish and United Kingdom nationality who has resided in the United Kingdom for her entire life a “beneficiary” within the meaning of Article 3 of the Directive 2004/38?
2. Has such a person “resided legally” within the host Member State for the purpose of Article 16 of [that] directive in circumstances where she was unable to satisfy the requirements of Article 7 of [that directive]?
Beneficiaries of EEA entitlements
In response to the first question the Court concluded that where a dual national has always resided in a Member State of which she is a national, and is also a national of another Member State and has never exercised her rights of free movement cannot benefit from the provisions of Article 3(1) of the Directive. Therefore Mrs McCarthy could not acquire permanent residence as an Irish citizen while relying on her right to live in the UK legally under EEA law.
The Court of Justice held that by refusing to grant Mrs McCarthy permanent residence in the UK as an Irish national, they were not depriving her of her rights under Article 21 of the Treaty on the Functioning of the European Union. The Court was of the view that Mrs McCarthy would not be deprived of any of her rights 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.” (para 49 judgment)
However, an EEA citizen has a right to be joined by their family members. In paragraph 57 of their judgment and in answering the first question referred they state:
“- 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 substances 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 analysis of Article 21 seems at odds with the judgment in Zambrano (C-34/09) where in considering Article 20 of the TFEU, the Court held that children who had not in fact moved over any borders had a right to reside in accordance with the Treaty. The Court has stamped its mark on the potential revolution that Zambrano creates by excluding TCN adults from its possible benefits.
Where does this place Mrs McCarthy’s husband and other third country national spouses of dual EU nationals in a similar situation as him ,and their rights to reside in the Union with their spouses? We are unlikely to have heard the last of these cases and wait to see what the practical implications of the McCarthy judgment will be on those third country nationals.