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Shirley McCarthy v Secretary of State for the Home Department - Case C-434/09 (31 May 2011)

Date: 31/05/2011
Duncan Lewis, Immigration Solicitors, Shirley McCarthy v Secretary of State for the Home Department - Case C-434/09

By Alexander Cooray

This case has caused some disquiet. The Judgment, handed down on 5 May 2011, followed close upon that in Case C-34/09 Ruiz Zambrano [2011] ECR I-0000 , which some had thought broadened the class of persons who could benefit from Treaty rights; it was feared that McCarthy was the start of a backlash.

From a cooler, more measured perspective, Zambrano is not quite as radical as some have painted it; nor is McCarthy a shocking betrayal of the findings in the previous case.

Zambrano concerned two Belgian national children whose parents were non-EEA nationals but who could not enjoy their rights in Belgium if their parents were both removed. The ECJ held that Article 20 TFEU precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status. The children’s Belgian citizenship – and thus their citizenship of the Union – was in itself a right protected by the Treaty. They could not exercise that right if their non-EEA national parents were removed; therefore, their parents must be allowed to remain.

However, it is relatively unusual for a child to be an EEA national where both parents are non-EEA nationals. It is far more common that one parent is a non-EEA national but the other is a national of the Member State.

After Zambrano was handed down, we predicted that States would seek to argue that failure to grant a right of residence to the non-EEA parent would not automatically lead to the child having to leave the State – because they could continue to reside in the EEA with the other parent. (It would be a difficult approach to justify under Article 8 ECHR, particularly in light of ZH (Tanzania), but it is all to easy to imagine the UKBA running that argument.)

And so to McCarthy itself. As the title of the case suggests, this is a decision following a reference for a preliminary ruling from the Supreme Court.


Background
The appellant, Mrs McCarthy, is a dual national: she is a national of the United Kingdom, and is also an Irish national. She was born and has always lived in the United Kingdom, and has never argued that she is or has been a worker, self-employed person or self-sufficient person. She is in receipt of State benefits.

On 15 November 2002, the appellant married a Jamaican national who had no leave to remain in the UK.

On 23 July 2004, the appellant and her husband applied for a residence permit and residence document as a Union citizen and the spouse of a Union citizen.

Both applications were refused on the ground that the appellant was not ‘a qualified person’ (a worker, self-employed person or self-sufficient person).

The matter made its way up to the Supreme Court, which decided to refer to the European Court of Justice for a preliminary ruling.


The questions referred to the ECJ
Two questions were referred 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 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]?


The ECJ’s findings
The ECJ’s answer to the first question meant that it considered that it did not have to turn its mind to the second. However, it reformulated the first question into two parts:

1. Whether Article 3(1) of Directive 2004/38 is to be interpreted as meaning that that directive applies to a citizen in a situation such as that of the appellant, who has never exercised their right of free movement, who has always resided in a Member State of which they are a national and who is also a national of another Member State.

2. Whether Article 21 TFEU is applicable to a Union citizen who has never exercised the 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.


The first part: Article 3(1) of Directive 2004/38
The Court held as follows [paragraphs 32 to 43]:

• According to Article 3(1) of Directive 2004/38, all Union citizens who ‘move to’ or reside in a Member State ‘other’ than that of which they are a national are beneficiaries of that directive.

• For that reason, Directive 2004/38 cannot apply to a Union citizen who enjoys an unconditional right of residence due to the fact that they reside in the Member State of which they are a national.

• Thus, a person in the appellant’s circumstances, where they cannot be said to have exercised their right of free movement and have always resided in a Member State of which they are a national, is not covered by the concept of ‘beneficiary’ for the purposes of Article 3(1) of Directive 2004/38. The directive cannot apply.

• It makes no difference that the citizen in question is also a national of a Member State other than that where they reside.

• Finally, as the appellant is not covered by the concept of ‘beneficiary’ for the purposes of Article 3(1) of Directive 2004/38, her spouse is not covered by that concept either.


The second part: Article 21 TFEU
The Court held as follows [paragraphs 44 to 56]:

• Treaty rules governing freedom of movement for persons cannot be applied to situations which have nothing to do with European Union law (see Metock, paragraph 77).

• However, the Court has stated several times that citizenship of the Union is intended to be the fundamental status of nationals of the Member States (see Zambrano, paragraph 41).

• In addition, in Zambrano the Court has held that Article 20 TFEU precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status (paragraph 42 of the Judgment).

• However, nothing in the appellant’s situation suggests that any national measure will deprive 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.

• This serves to distinguish the case from Zambrano: there, the appellants would de facto have been forced to leave the European Union if their parents had been removed.


Discussion
The main finding is perhaps unsurprising: the rights which attach to the free movement of workers do not apply to persons who have never exercised those rights.

The more interesting finding – albeit a disappointing one for the appellant – is the distinction from Zambrano. It is now clear, contrary to some of the incautious interpretations of that ruling, that the Court in Zambrano did not intend to give carte blanche to all EEA nationals in the matter of whether their EEA family members could be allowed to reside with them.

Rather, the Court in that case was concerned to protect the rights of EEA nationals to reside in the EEA – including in their own country. In the particular circumstances of that case, removal of the non-EEA parents would mean that the EEA national children could not enjoy that right.

The decision leaves one somewhat uneasy, nevertheless. Although


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