By Steve Peers

The Advocate-General’s recent opinion in the McCarthy case brings up significant issues concerning the reach of EU free movement laws and how they interact with EU and national regulations on border control and visas. The case involves Mr. McCarthy, a dual UK and Irish citizen residing in Spain with his Colombian wife (a third-country national) and their child (also a dual UK and Irish citizen).

The family currently needs to secure a ‘family visa’ for Mr. McCarthy’s wife each time they travel to the UK for short trips. This necessitates a journey from their home in Marbella to the British consulate in Spain. The question arises: is this requirement aligned with EU law?

When it comes to short visits, this situation primarily affects those traveling between Schengen Area Member States (22 Member States and 4 non-EU associates) and non-Schengen Member States (UK, Ireland, Romania, Bulgaria, Cyprus, and Croatia). This is because legally residing third-country nationals in Schengen States don’t need visas to visit other Schengen States, irrespective of familial ties with EU citizens or travel companions. They also don’t face checks at internal Schengen borders.

However, the UK and Ireland have a unique protocol with the EU concerning border controls, allowing them to check individuals at their borders to verify their eligibility to enter under EU law. The remaining four non-Schengen States are obligated to eventually join the Schengen Area and must implement certain Schengen rules in the meantime.

So, is Mr. McCarthy’s wife entitled to enter the UK with him, and what rules apply to her attempt? The foundation lies in the EU’s 2004 Citizens’ Directive, which, among other things, aimed to simplify travel and residence for individuals in similar situations. Third-country family members of EU citizens residing in other Member States, like Mrs. McCarthy, must receive a ‘residence card’ as proof of their status. With this card, they can travel to other Member States without a visa, even if they would typically require one (for example, a Colombian national visiting the UK).

This principle applies reciprocally. For instance, a French woman residing in the UK wanting to visit Germany with her Nigerian wife wouldn’t face a Schengen visa requirement for her spouse if the latter possesses a residence card.

Given this legal context, what’s the problem? The UK clearly cannot mandate a ‘family visa’ for these trips. The case raises three main points: the applicability of EU free movement law, the possibility of measures against the ‘abuse’ of EU law rights, and the interpretation of the borders protocol.

Scope of EU law

At first glance, the McCarthy family’s situation falls directly under EU law, as Mr. McCarthy is a British and Irish citizen residing in Spain with his family. However, the case doesn’t concern his status in Spain, but his visits to the UK, where he holds citizenship.

The Advocate-General points to recent CJEU case law (the S and O judgment) that applies the Citizens’ Directive by analogy to cases where a citizen of one Member State moves to another, then attempts to return to their original Member State with their family. He finds it problematic to interpret EU primary law (the Treaty free movement rules) in line with secondary law that doesn’t apply to this specific case. He argues that the Citizens’ Directive itself should apply in such scenarios, or at least to short-term visits as opposed to longer-term residence.

Abuse of EU rights

Article 35 of the Citizens’ Directive allows for measures against the misuse of free movement rights. The UK doesn’t allege abuse of those rights by the McCarthy family. However, the ‘family visa’ requirement wasn’t specifically designed for them, but for all third-country national family members of EU citizens who have moved between Member States and wish to visit the UK using a residence card.

The UK justifies the ‘family visa’ rule by citing UK Border Agency checks that revealed a significant number of residence card holders were not legitimately entitled to them (excluding those with more secure residence cards). However, the Advocate-General argues that measures addressing rights abuse should target individual instances, not all cases.

Border control powers

Lastly, the opinion posits that the UK cannot justify its stance by invoking the borders protocol. While the protocol permits the UK to verify individuals’ EU law rights at its borders, it doesn’t allow for breaches of EU free movement law regarding those who rightfully hold such rights.

Comments

The opinion is undoubtedly accurate regarding the national court’s specific questions on rights abuse and the borders protocol. Concerning rights abuse, restricting this principle to individual cases is well-established in previous CJEU case law. The facts of this case highlight why this restriction is crucial, as the UK’s actions directly contradict the Directive’s prohibition on imposing visa requirements on third-country national family members with residence cards.

Regarding the borders protocol, it’s undeniably subordinate to EU free movement law. The opinion’s proposed approach would let the UK confirm the entitlement of anyone entering the country under EU free movement law without further restricting their free movement rights.

However, evidence suggests that some individuals possess residence cards they aren’t entitled to, a legitimate concern for the UK government. But their response was disproportionate. The opinion should have elaborated on alternative solutions, such as a Member State agreement on shared standards for residence card authenticity.

Finally, what about the Directive’s scope, an issue raised by the CJEU itself? Respectfully, the Advocate-General seems to have taken a slightly misleading path. His reasoning falters in assuming that the EU Citizens’ Directive can never apply to a host Member State citizen who also holds citizenship of another Member State. While he’s correct that British citizens like Mr. McCarthy cannot invoke the Directive against the UK (based on case law and the Directive’s wording), Irish citizens like Mr. McCarthy certainly can. He falls under the Directive’s protection and simultaneously doesn’t, much like Schrödinger’s cat.

In a 2011 case involving a different dual British and Irish citizen also named McCarthy, the CJEU ruled that the Directive was not applicable. However, that case involved a McCarthy who had never lived outside the UK. As previously argued (with Jonathan Tomkin and Elspeth Guild) in the Commentary on the EU Citizens’ Directive, that judgment should only apply if a dual citizen of two Member States has always resided in one, unlike the current case where the individual lives in a third Member State. More broadly, the 2011 McCarthy judgment is contradictory, confusing, and should be overturned or at least have its scope limited. It’s unfortunate that the opinion missed the chance to advocate for this, instead assuming a broad scope for the judgment.

Having implicitly argued that no dual citizens of two Member States can ever rely on the Citizens’ Directive, the Advocate-General attempts to retract this by urging the Court to overturn this very rule he created. It would have been preferable to avoid establishing the rule in the first place. It’s illogical to claim that the 2014 McCarthy, a pensioner who has only lived in the UK for five years, should have the same legal standing as the 2011 McCarthy, who never resided outside the UK.

Beyond dual citizens, the Advocate-General’s opinion is relevant to citizens of a single Member State visiting their own country. Since CJEU case law confirms that EU free movement law applies to those returning to their home country for residence, it should logically apply to those returning for visits as well.

Should the EU Citizens’ Directive apply directly, as the opinion suggests, or by analogy, as per CJEU case law? This distinction is ultimately insignificant, as the outcome is identical. Both routes allow the Court to uphold the spirit of free movement laws. It’s unfortunate that the Advocate-General focused on this semantic detail while potentially jeopardizing the legal standing of dual citizens of two Member States. 

Barnard & Peers: chapter 13, chapter 26