22 Mar 2017, 17 mins ago

On 18 December 2014 the European Court Of Justice (‘ECJ’) gave judgment in the case of Sean Ambrose McCarthy and Others v Secretary of State for the Home Department (Case C-202/13). The ECJ held that that UK’s immigration provisions requiring visas for non-EU family members of EU citizens travelling to UK, infringed EU free movement rights arising from the European Directive 2004/38/EC.

The applicants, Mr McCarthy who is a dual-national of the UK and the Republic of Ireland, and his Colombian wife, have lived in Spain with their children since 2010. The family regularly travels back to the UK where they have a house. Each time Mr McCarthy’s wife, who holds a ‘residence card’ issued by the Spanish authorities, was forced to apply for an EEA family permit (an entry permit), which is valid for six months. Under the UK immigration rules an entry permit can be renewed provided that the applicant visits a British diplomatic mission abroad in person and fills out a form, which requires disclosure of financial and employment details.

The McCarthy family argued that the UK immigration rules infringed their free movement rights and in 2012 brought an action before the High Court of Justice of England and Wales. The High Court then referred the case to the ECJ for a preliminary ruling on the interpretation of EU law, specifically the European Directive 2004/38/EC.

The ECJ held that Directive 2004/38 applies to any EU citizen who has exercised his right of freedom of movement by becoming established in a Member State, other than the Member State of his origin, and his family members. Therefore the directive was applicable to the situation in the McCarthy case as Mrs. McCarthy Rodriguez was the family member of an EU citizen who has exercised his right of freedom of movement by residing in Spain.

The UK government contested that they introduced a visa regime because “there is no uniform consistency across other EU Member states on the residence cards” and they had concerns that in some EU countries residence cards do not meet international security standards and are open to abuse.

The court confirmed that under Article 35 of the Directive “Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud…”. However, it stressed that those measures should be assessed individually and adapted to specific circumstances in each case. Therefore, a blanket requirement imposed by the UK on all non-EU family members who hold residence cards to obtain entry visas is contrary to the Directive. The court stated that, “The directive on free movement of Union citizens does not allow measures which, in pursuit of an objective of general prevention, preclude family members from entering the territory of a member state without a visa”. Thus, unless Member States can demonstrate concrete evidence of an abuse of rights or fraud in an individual case, they are required to recognize a residence card issued pursuant to the Directive by another Member State.

The McCarthy family’s case is due to return the UK’s High Court for a final ruling. It should be noted that the ECJ decision is binding, not only on the national court on whose initiative the reference for a preliminary ruling was made, but also on all of the national courts of EU Member States.

The ECJ decision has been described as “an awkward ruling” and “another setback in the government’s campaign to control immigration from the European Union” in the popular UK press. Criticism of the ruling feeds into the on-going public debate about the UK’s continuing membership of the EU, with one right-wing politician claiming that the ECJ decision is further “proof that Britain can never take back control of its borders as long as it remains in the European Union.”

However, despite the predictable wave of negative criticism and inaccurate reporting, the ruling does not open floodgates for all non-EU family members to enter the UK without any restrictions. The ruling is of limited application to citizens of other EU member states and only applies to specific situations like that of the McCarthy family. The ECJ ruling does not assist non-EU family members to settle in the UK. UK nationals who reside here cannot benefit from the decision and their non-EU family members will still need to apply for UK entry clearance according to the usual domestic immigration rules. The ruling applies only to those UK citizens who are exercising EU treaty rights – for example by living in another EU Member State. Ultimately, this ruling breaks no new ground and simply brings the UK’s law into proper conformity with EU free movement law.