Today’s important CJEU judgment in McCarthy answers an important question relating to the application of EU free movement law in the UK: can the UK limit the right of third-country national family members of UK (and other EU) citizens to visit the UK?
The judgment concerned a dual citizen of the UK and Ireland living in Spain, with his third-country national wife and their joint child (also a dual British and Irish citizen). UK law requires the family to obtain a ‘family permit’ every time they seek to visit the UK. As discussed in my previous comments on the Advocate-General’s opinion in this case, issues like these would normally only arise for travel between Schengen and non-Schengen states, since anyone holding a residence permit from a Schengen state is free to travel for short periods to other Schengen states without needing a visa, and there are normally no checks at the internal borders of Schengen states.
The EU’s citizens’ Directive states, among other things, that third-country national family members of an EU citizen who lives in another Member State must be given a ‘residence card’ to prove their legal status. Such a card exempts them from any visa requirement that would normally apply when they visit another Member State, if they visit that State along with the EU citizen family member. There’s no reference to any possibility to demand a ‘family permit’, or anything resembling it. In this case, Mrs. McCarthy had a residence card, so at first sight the UK can obviously not insist upon a de facto visa requirement.
However, the UK sought to justify its policy for two reasons: in order to avoid the abuse of EU law, and in order to apply a special protocol on border controls, which allows the UK (as well as Ireland) to check people crossing the borders between the UK and other Member States to determine whether they have EU law free movement rights or not.
The Court’s judgment first of all examines whether the citizens’ Directive can apply. It ruled that Mr. McCarthy and his wife were (quite obviously) covered by the citizens’ Directive when in Spain. But did the Directive apply when they come to the UK? The Court ruled that it did, since the relevant clause in the Directive (Article 5, on entry) made no distinction between the Member State of the EU citizen’s nationality and other Member States.
Next, the Court ruled that the ‘abuse of rights’ rule, which is set out in an express clause in the Directive (Article 35) could not justify the UK’s action. According to the Court, abuse could only be assessed in individual cases, rather than as regards whole categories of persons. Finally, the Court ruled against the UK’s attempt to justify its measure based on the borders Protocol, since that Protocol only allows the UK to check whether individuals have the right of entry under EU free movement law, not to deny them the right of entry once they qualify for free movement rights. The judgment won't be applied in practice until the UK courts give a further ruling, now that the case returns to the national courts - unless the UK government (improbably) gives effect to the judgment sooner.
I should first of all point out, in light of some hysterical press reports, what this judgment does not do. It does not allow all UK citizens to bring their third-country national family members into the UK. For those UK citizens who reside in the UK, there’s nothing in this judgment to change the traditional position that only national law (and so the UK’s restrictive rules on family reunion) applies to their situation, rather than EU law. Simply put, the McCarthy family lives in Spain, not the UK.
There is a modest impact upon those UK citizens who are temporarily living in another Member State with their third-country national family member, planning to return to the UK later on, having used EU free movement law in the meantime to live with their non-EU family members. This is traditionally known in the UK as the ‘Surinder Singh’ route, following an earlier judgment of the CJEU by that name (for Dutch citizens, it’s known as the ‘Belgian route’).
Today’s ruling will make it easier for those British citizens (as well as those who intend to live in another Member State permanently) to visit the UK with their third-country family members. It would only apply to them if their family members have obtained a residence card from their host Member State, though. And it isn’t relevant for their family’s eventual return to the UK: that is still hindered in practice by UK rules which are breach in of the CJEU’s ruling earlier this year which clarified the position of such ‘returnees’ (that ruling is discussed further here).
What about citizens of other Member States who want to live in the UK with their third-country family members? The ruling really has little to do with them, since it only concerns short-term visits. It would be relevant to (say) a German woman with a Turkish husband living in Spain, if the husband has a residence card from Spain and wants to visit the UK with his wife. But it isn’t directly relevant to those who seek to settle in the UK, although in a future case the Court might apply it by analogy. EU free movement law is already generous to EU citizens who seek to move to another Member State with their third-country family members; but this judgment does not make it any more generous.
Overall, today’s ruling is a welcome and convincing interpretation of the free movement rules. It’s quite obvious that the EU citizen’s Directive does not allow anything like a ‘family permit’ requirement as a condition before waiving the visa requirement, since that would negate the whole point of that waiver. The Court simply (and correctly) dealt with the point about the ability of dual citizens of the UK and Ireland to rely on the rules in question, by distinguishing between short-term visits and longer stays. It’s also obvious that the UK’s Borders Protocol is subject to substantive free movement law, and only gives the UK the right to check if EU citizens and their family members have free movement rights, not to deny them entry if they do.
This brings us to the point about the ‘abuse of rights’. The Court’s judgment follows its traditional case law in holding that this principle can only be applied to individual cases, and it gives many convincing reasons for applying this interpretation in the context of the citizens’ Directive. However, the UK government demonstrated that there are a sufficiently large number of cases of fraud of residence cards to be concerned about. Such abuses of free movement law cannot be defended in principle, and undermine the legitimacy of the free movement regime for the large majority of British (and other EU) citizens who exercise free movement rights honestly. To address this concern, all Member States should agree in principle to introduce secure residence cards as soon as possible.
Barnard & Peers: chapter 13