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McCarthy judgment available

This entry is part 3 of 9 in the series Zambrano series
[UPDATED]

The hotly anticipated (er, by EC law geeks and the parties mainly) judgment in McCarthy v United Kingdom (Case C-434/09) is now out. The appeal was dismissed: dual nationals living in a country of their nationality who have never exercised free movement rights cannot rely on the Citizens’ Directive (2004/38) or on Article 21 TFEU. Or, in the memorable words of the European Court of Justice itself:

“1.      Article 3(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, must be interpreted as meaning that that directive 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.

2.      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 substance 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 first point to make is that the ECJ holds that a person who has never moved between Member States and is not a worker, self employed and so on (a ‘qualified person’ in our domestic terminology) cannot benefit from the right to move and reside freely imparted by the Citizens’ Directive. See paragraphs 30 to 43. The reasoning here is interesting because the Court seems to be at pains to emphasise that the right of free movement and residence in the Citizens’ Directive is a unitary right, not two different rights, as the Court seemed to suggest in Zambrano in relation to Article 20 TFEU. The outcome is certainly consistent with Zambrano, though, as in Zambrano the Court also held that the Directive could not apply.

The Court then goes on to consider Article 21 TFEU. This in itself puzzles me, because the judgment in Zambrano is specifically addressed to Article 20 TFEU. For the life of me, I cannot work out the difference between the two as one seems to repeat the other, so it is difficult to see what the significance is of the different legal basis for McCarthy and Zambrano.

Article 20(2) provides as follows:

“Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:

(a)       the right to move and reside freely within the territory of the Member States…”

Article 21(1) provides thus:

“Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect…”

Anyway, the Court goes on to distinguish the facts of McCarthy from the facts in Zambrano:

“49. However, no element of the situation of Mrs McCarthy, as described by the national court, indicates that the national measure at issue in the main proceedings has the effect of depriving 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. Indeed, the failure by the authorities of the United Kingdom to take into account the Irish nationality of Mrs McCarthy for the purposes of granting her a right of residence in the United Kingdom in no way affects her in her right 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.

50. Indeed, the failure by the authorities of the United Kingdom to take into account the Irish nationality of Mrs McCarthy for the purposes of granting her a right of residence in the United Kingdom in no way affects her in her right 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.”

The reasoning seems to be simply that the refusal to grant residence to Mr McCarthy did not have the effect of depriving Mrs McCarthy of the genuine enjoyment of the substance of the rights conferred by virtue of her status as a Union citizen. Quite why is unclear – it is arguable that she would be forced to leave the Union in order to live with her husband if he is not granted residence. One can speculate as to the underlying reasons for this judgment, but it really does just amount to speculation.

So, in short, it seems that Zambrano applies to children and does not necessarily apply to dual national spouses who have never moved between Member States and are not qualified persons.

This will surely not be the last word on the subject of citizenship rights and ‘constructive deportation’ of Union citizens by failure to grant residence to their family members.

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Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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