Steve Peers

A recent ruling from the Court of Justice of the European Union (CJEU) in the McCarthy case addresses a crucial question about EU free movement law in the UK: can the UK restrict the ability of family members (who are third-country nationals) of UK (and other EU) citizens to visit the UK?

The case involved a dual UK and Irish citizen residing in Spain with his wife (a third-country national) and their child (also a dual British and Irish citizen). UK law mandates that the family obtain a ‘family permit’ for every visit to the UK. Typically, these issues arise when traveling between Schengen and non-Schengen states. This is because individuals with a Schengen state residence permit can travel freely for short periods to other Schengen states without a visa, and internal border checks within Schengen are uncommon.

The EU’s citizens’ Directive states that third-country national family members of an EU citizen residing in another Member State should receive a ‘residence card’ to confirm their legal status. This card exempts them from visa requirements when visiting another Member State alongside their EU citizen family member. Notably, there’s no mention of a ‘family permit’ or any similar requirement. In this case, Mrs. McCarthy possessed a residence card, making the UK’s insistence on a de facto visa requirement questionable.

However, the UK justified its policy on two grounds: preventing the misuse of EU law and implementing a specific border control protocol. This protocol allows the UK (and Ireland) to check individuals crossing their borders with other Member States to verify their EU free movement rights.

The Court’s judgment first examined the applicability of the citizens’ Directive. It determined that Mr. McCarthy and his wife were indeed covered by the Directive while in Spain. The Court also ruled that the Directive applied to their visits to the UK, as the relevant clause (Article 5 on entry) doesn’t differentiate between an EU citizen’s home Member State and other Member States.

Furthermore, the Court stated that the ‘abuse of rights’ rule (Article 35 of the Directive) couldn’t be used to justify the UK’s actions. It argued that abuse should be evaluated on a case-by-case basis, not for entire groups. Lastly, the Court rejected the UK’s attempt to justify its measure using the borders Protocol. It stated that this Protocol only permits the UK to verify an individual’s right to enter under EU free movement law, not to deny entry if those rights are met. The judgment will be implemented after a subsequent ruling from UK courts, unless the UK government decides to enact it sooner, which is unlikely.

Comments

Firstly, contrary to some exaggerated media reports, this judgment doesn’t grant all UK citizens the right to bring their third-country national family members into the UK. The ruling doesn’t alter the existing situation for UK citizens residing in the UK, where national law (and its limitations on family reunification) applies instead of EU law. The key difference is that the McCarthy family resides in Spain, not the UK.

There is a minor impact on UK citizens temporarily residing in another Member State with their third-country national family member, planning to return to the UK later, having exercised their EU free movement rights. This is referred to as the ‘Surinder Singh’ route in the UK (or the ‘Belgian route’ in the Netherlands).

This ruling will simplify visits to the UK for these British citizens (and those planning to live in another Member State permanently) with their third-country national family members. This applies only if their family members hold a residence card from the host Member State. However, it doesn’t affect their eventual return to the UK. This is still hindered by UK rules that violate a CJEU ruling from earlier this year concerning such ‘returnees’.

Regarding citizens of other Member States wishing to reside in the UK with their third-country national family members, the ruling has minimal impact as it solely concerns short visits. It could apply to a German woman living in Spain with her Turkish husband, if he holds a Spanish residence card and wants to visit the UK with her. However, it doesn’t directly affect those seeking to settle in the UK, though the Court might apply it analogously in future cases. While EU free movement law already accommodates EU citizens moving to another Member State with their third-country national family members, this judgment doesn’t make it more lenient.

In conclusion, this ruling offers a logical and positive interpretation of free movement regulations. It’s evident that the EU citizens’ Directive doesn’t permit a ‘family permit’ requirement as a prerequisite for waiving the visa requirement, as this would defeat the purpose of the waiver. The Court appropriately addressed the issue of dual UK and Irish citizens exercising these rights by distinguishing between short visits and extended stays. It’s also clear that the UK’s Borders Protocol operates within the bounds of substantive free movement law, allowing the UK to verify but not deny entry to EU citizens and their family members who hold free movement rights.

Regarding the ‘abuse of rights’, the Court’s judgment aligns with its established case law, affirming that this principle applies to individual cases. It provides compelling reasons for this interpretation within the context of the citizens’ Directive. However, the UK government highlighted a considerable number of residence card fraud cases. Such misuse of EU free movement law is unacceptable and undermines its legitimacy for the majority of British (and other EU) citizens who exercise these rights responsibly. To tackle this, all Member States should prioritize the implementation of secure residence cards.

Barnard & Peers: chapter 13