Case C‑202/13 McCarthy: UK Unilaterally Suspending Free Movement

This is the long-awaited opinion in relation to the reference to the CJEU made in R (McCarthy & Ors) v Secretary of State for the Home Department [2012] EWHC 3368 (Admin). Advocate-General Szpunar’s opinion relates to the scope of the powers granted to the UK by article 1 of Protocol No 20 (on the application of certain aspects of article 26 of the Treaty on the Functioning of the European Union to the UK and to Ireland) and article 35 of the Citizens’ Directive. Issues connected to the UK’s power to control and prevent abuse of its borders lie at the heart of the matter. See post on CJEU judgment.

For the AG, a third-country national holding a residence card of a family member of a Union citizen issued by a Member State does not need to obtain a visa prior to entering another Member State. It is the first occasion on which the CJEU has been invited to give a preliminary ruling on article 35 (abuse of rights) of the directive and article 1 of the protocol (which redoubles the UK’s longstanding preservation of its control over its own border by not participating in the Schengen acquis whose signatories abolished border checks at the frontiers between them and reinforced controls at external borders). The AG considered that the instant case provided a privileged occasion for the CJEU to answer the question of the directive’s applicability following the prior exercise of freedom of movement by a Union citizen who travelled to the Member State of which he is a national accompanied by a family member who is a third-country national.

Notwithstanding the UK’s concerns about abuse of rights and preserving its frontiers, the learned AG formed the view that the evidence adduced by the UK was insufficient to support its assertion of a systemic abuse of rights. He therefore explained:

138. [T]hat authorising a Member State not to take account of the residence card issued by another Member State would be contrary to the principle of mutual recognition. It should be observed that, according to the case-law of the Court, exercise of the rights arising from freedom of movement is not possible without production of documents relative to personal status, which are generally issued by the worker’s State of origin. It follows that the administrative and judicial authorities of a Member State must accept certificates and analogous documents relative to personal status issued by the competent authorities of the other Member States, unless their accuracy is seriously undermined by concrete evidence relating to the individual case in question.

139. [T]o accept that the United Kingdom should implement measures of general application would be tantamount to allowing a Member State to circumvent the right of freedom of movement and would have the consequence that other Member States could also adopt such measures and unilaterally suspend the application of the directive.

This case involved Mr McCarthy a dual British and Irish national living in Spain with his Colombian wife who holds an EU family member’s residence card issued by Spain. Mr McCarthy has a daughter who like him is a dual British and Irish national. The family owns houses in Spain and the UK. Despite her Spanish residence card, in order to be able to travel to the UK, Mrs McCarthy was required to obtain an EEA family permit under the Immigration (European Economic Area) Regulations 2006. In judicial review proceedings in the English High Court before Haddon-Cave J, the family sought declarations that article 5(2) of the directive has been improperly transposed in the UK and that the SSHD has acted unlawfully in issuing guidance to border staff and carriers that is incompatible with article 5(2).

The High Court referred three questions to the CJEU. First, whether article 35 empowers a Member State to adopt a measure of general application to refuse, terminate, or withdraw the right conferred by article 2 of the directive exempting from visa requirements third-country national family members who are holders of residence cards issued pursuant to article 10. Second, can article 1 of the protocol entitle the UK to require residence card holders to obtain an entry visa prior to arrival at the frontier. Third, if the answer to the two questions is yes then whether, in light of the evidence in the English High Court’s judgment, the UK’s approach to residence card holders in the present case is justifiable.

Mr McCarthy has a medical condition because of which he needs to travel with his family when he comes to the UK to see his cardiologist. The refusal of the UK to recognise Mrs McCarthy’s Spanish residence card caused the family problems because they needed to travel from Marbella to Madrid to get an EEA family permit, needing renewal every six months, which incurred expenses and wasted time. Other problems exist because unless she produces a valid EEA family permit, Mrs McCarthy is unable to freely enter the UK because border officials obstruct her entry and in line with the SSHD’s guidance, to avert carrier’s liability, airlines refuse to transport her. The family therefore contends that the SSHD’s failure to transpose the requirements of article 5(2) correctly into domestic law has had a seriously adverse impact on their collective rights to freely enter the UK.

In response, the SSHD raised concerns about a systemic problem of abuse of rights and fraud by third-country nationals. She was concerned about the absence of a uniform model applicable to the residence cards referred to in article 10 of the directive. The fact that those cards are not translated into English and are susceptible to forgery only intensified her concerns and Haddon Cave J shared her concerns regarding abuse of rights (like marriages of convenience for example).

Proposing a broad interpretation of the directive, one which does not deprive the directive of its practical effects, the AG found that it must apply in a situation where, like the instant case, after exercising his right of freedom of movement and genuinely residing in another Member State, a Union citizen travels with his third-country national family member(s) to the Member State of his nationality. This approach is consistent with the position of citizenship in EU law and with the CJEU’s jurisprudence such as Case C-370/90 Singh and Case C-291/05 Eind where it accepts the right of residence of a Union citizen and of his third-country national family members when the Union citizen in question definitively returns to his Member State of origin after a period of residence in another Member State.

However, the AG criticised the CJEU for basing its decisions on the interpreting the Treaty in light of secondary legislation. Although he agreed with the end result, the AG remained “sceptical about the reasoning which it [CJEU] followed” because – quite similar to Colin Yeo’s critique of the UK Supreme Court about using the Immigration Rules as an aide to construing the Immigration Act 1971 – to his mind “it is secondary legislation that ought to be interpreted in the light of the Treaties, and not vice versa” (para AG82).

The AG thought that interpreting article 3(1) of the directive as being restricted to a limited number of hypothetical examples of movement was paradoxical because on that view Mrs McCarthy “could accompany her husband when he travels to all the Member States apart from the State of which he is a national! In other words, the right of freedom of movement of a Union citizen who is accompanied by third-country national family members would be reduced in proportion to the number of nationalities which he has!” (para AG75). Equally, he questioned whether it is acceptable to interpret the directive to allow the family members of a Union citizen to be treated differently depending on the Member State to which they travel?

The AG also distinguished Case C-434/09 McCarthy (a 2011 case involving another British, Irish dual national with the same name), Case C-256/11 Dereci and Others, Case C-87/12 Ymeraga and Ymeraga Tafarshiku and Case C-40/11 Iida from the present case because the Union citizens in question in the said cases either (i) had never exercised their right of freedom of movement, having always resided in the Member State of which they were nationals, or (ii) had not been either joined or accompanied when they travelled to another Member State by the third-country national family member. In those cases, the Union citizens concerned therefore did not satisfy the conditions laid down in article 3(1) of the directive. Case C-456/12 O and B and Case C-457/12 S and G were also distinguished because, like in Case C-60/00 Carpenter, in those instances the Union citizen had not established himself in the host Member State.

If, for some reason, the AG’s first proposal is not adopted by the CJEU, he alternatively proposes – as regards exclusively to the right of entry and of short-term residence – that the directive should minimally apply to Union citizens and their third-country national family members genuinely exercising their freedom of movement by residing in another Member State while concurrently making short trips to the Member State of which the Union citizens concerned are nationals.

Moreover, analysing whether, and if so on what conditions, a Member State is permitted to require an entry visa to manage abuse of rights in the absence of abuse of rights in a specific case, the AG observed that a general measure like the one operated by the UK deprives the procedural guarantees set out in article 30 (notification of decisions) and article 31 (procedural safeguards) of the directive “of their substance” (para AG125). He also explained that the measures contemplated by article 35 are “individual measures” and do not permit the rights conferred by the directive to be systematically suspended. Rather, systematically suspending those rights does not permit the English High Court or the CJEU to evaluate whether the conditions that led the UK authorities to disregard that right in relation to the McCarthy family have really been met.

The AG made some other criticisms. The McCarthy family’s conduct was not an abuse of EU rights and the objectives of the TFEU cannot be compromised by a general presumption of fraud (which was insufficient to justify a measure such as making the holder of a Spanish residence card get an EEA family permit). In principle, national courts are fit to assess fraud “but their assessment must not in any circumstances jeopardise the uniformity and effectiveness of EU law” (para AG 134).

The AG opined that the EEA family permit imposed on Mrs McCarthy by the UK “amounts quite simply to a requirement to have a visa” (para AG137). This is incompatible with the directive’s system and objectives and is contrary to article 5(2), namely that the possession of a valid residence card issued pursuant to article 10 exempts third-country national family members from the visa requirement. Notably, article 10 does not create a right and “merely certifies that a right already exists.” Therefore, where the third-country national family member meets the requirements “that allow him to benefit from the right of freedom of movement, that card must be accepted by the Member States.”

Thus, for the AG, the answer to the first and third questions should be that a Member State like the UK is not entitled under article 35 of the directive “to adopt a measure of general application consisting in withdrawing from members of the family of a Union citizen in possession of a valid residence card issued by another Member State [like Spain] the right to be exempt from the obligation to obtain a visa, when that measure is precautionary and is not based on a prior finding of an abuse of rights in a specific case” (para AG141).

The AG thought (paras AG142 – AG152) that, despite its priority in ranking in comparison to EU secondary law, article 1 of the protocol does not entitle the UK to require residence card holders to obtain an entry visa prior to arrival at the frontier. It is not intended that the protocol should bestow special privileges on the UK. Rather, the protocol was adopted to take into consideration that the UK wanted to maintain border controls with most Member States and also the existing Common Travel Area between the UK and Ireland. On the one hand verifying whether the persons concerned have the right to enter the UK is the aim of border controls, but on the other hand “that verification does not entitle the UK to refuse unilaterally to allow EU citizens and members of their families with a residence card to enter its territory, by requiring generally that they obtain and present at its borders an additional document for which EU law makes no provision” (para AG151).

The AG’s opinion is clearly at variance with Haddon-Cave J’s characterisation of the protocol as “a striking and powerful instrument” which “is broad and permissive” and “effectively sweeps EU law aside as an obstacle to the exercise of the discretion: the UK’s discretion is exercisable notwithstanding anything in EU law, i.e. whether Article 26 or any other TFEU provision” (paras 76 – 77). So, despite it being quite plain that the protocol allows the UK to make border checks but does not permit interference with freedom of movement, the learned judge preferred the SSHD’s viewpoint and rejected the McCarthy family’s arguments for being “too narrow as well as not consistent with the raison d’être of the Frontiers Protocol.” Ultimately, the judge held that “there is no reason in principle why Member States should not be able to take prospective, preventive ‘blanket’ measures to combat widespread fraud and abuse of rights if such measures are proportionate, necessary and the most effective way of preventing the abuse in question” (para 99). For Haddon-Cave J, the wide drafting of article 35 meant “systemic abuse of rights and fraud calls for systemic measures.”

Conversely, as is well known, the European Commission’s guide on the directive includes maxims as regards Europeanness such as “residence card = no visa” and “possession of the valid residence card issued by any Member State exempts the family members from the visa requirement in all Member States.” Similarly, in further guidance, the Commission also communicated to the European Parliament and Council that residence cards issued to family members of Union citizens in the host Member State “including those issued by other Member States, exempt their holders from the visa requirement when they travel together with the EU citizen or join him/her in the host Member State.”

For the AG, Haddon-Cave J’s treatment of abuse in the directive’s context failed to give due attention to the Union citizen’s status. Hence, the AG opined, “the assessment of whether EU law has been abused must be made in the framework of EU law, and not with regard to national migration laws” (para AG127). Although the directive permits investigating fraud in specific cases, “EU law prohibits systematic checks.” Similarly, measures combating marriages of convenience must not (a) impinge on Union citizens and their family members’ right of free movement and (b) undermine the effectiveness of EU law or discriminate on grounds of nationality.

The CJEU’s AGs are a curious lot. As full members of the Court, they are as distinguished as the judges but they do not participate in the deliberations. They work in their mother tongues (rather than French) and deliver legal opinions independent of their colleagues’ views. In theory, AGs act with complete impartiality and independence. Their input in cases is seen as a luxury for the CJEU judges who are interested in how Member States react to opinions rendered and evaluate whether Member States would be irritated by later judgments.

AG Szpunar’s views on the directive’s scope have been criticised on EU Law Analysis by Professor Steve Peers. Author of The EU Citizenship Directive: A Commentary (an awesome book that even mentions the Rolling Stones; EU citizens cannot always get what they want – but if they try real hard, national authorities must give them what they need), the Professor expressed his beef with Szpunar AG about the directive’s scope in the following way:

On this point, with great respect, the Advocate-General has led himself down something of a garden path. The key flaw in his reasoning is his implicit assumption that the EU citizens’ Directive can never apply to a citizen of the host Member State who is also a citizen of another Member State. On the one hand, it is correct (based on the case law, and the clear wording of the Directive) to say that British citizens, like Mr. McCarthy, cannot invoke the Directive against the UK. But on the other hand, Irish citizens, like Mr. McCarthy, certainly can. Like Schrodinger’s cat, he is simultaneously covered by the Directive, and not covered by it.

In relation to the (other) 2011 McCarthy judgment, which is quite convoluted, the Professor laments that the AG did nothing to attack the decision in that case and instead assumed the breadth of its scope. Similarly, Professor Peers, whose commentary must be read in full, had some more advice for the AG about the directive applying as such – which the latter prefers – or by analogy (per the CJEU case law) and the learned Professor let Mr Szpunar know that:

Really, this is a distinction without a difference, as the outcome would be the same whichever route is chosen. Either way, the Court would be giving effect to the spirit of the free movement rules. It is unfortunate that the Advocate-General chose to chase this semantic butterfly, while leaving the front door open to the deterioration of the legal position of those who are dual citizens of two Member States.

Err – Hi Prof Peers, not too important but for the record the Stones’ analogy is on page 66 of The EU Citizenship Directive. Yet in the index, Oxford University Press incorrectly locates it on page 57. I had to search quite hard to find the reference again; however, since the book is so brilliantly written I totally enjoyed doing so!