UK Loses Key Case on Abuse of Rights

McCarthy and Others (Judgment) [2014] EUECJ C-202/13 (18 December 2014)

Consumed by the politics of immigration, the British have become massively uptight about entry into their country. This case – involving 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 – demonstrates that the British are obsessed with fraud and love to hide behind an “abuse of rights” argument in order to impose visa requirements even on exempted persons. Hysteria about terrible foreigners stealing rights from locals is very fashionable these days. Just the other day, while entering the UK at Heathrow Terminal 3, I had to put a menacing immigration officer (3387) in her place by informing her that she was not a court of final instance and that she needed to relax. Rather than me abusing any rights, the officer was just trying to bully me and was abusing her power by unnecessarily investigating the basis of my leave to remain in the UK. During our conversation, she also complained about a “lack of resources” and in the absence of any provocation made the claim that “if we had more money we would win every appeal”.

I just burst out laughing of course and she came to dislike me. Eager to catch me out, she searched but found no abuse of rights and I could not resist telling her that the quality of Home Office decision-making, like her “investigation” about me, is pathetic. Weirdly, even exiting corrupt and primitive Pakistan seemed more civilised. There, the CIO overseeing exits, a pretty lady called Nadia, conducted herself much more professionally than her British counterpart. Anyway, in this judgment, which confirmed the McCarthy family’s victory, the CJEU held that neither article 35 of Directive 2004/38/EC nor article of 1 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) permit the UK, in pursuit of an objective of general prevention, to impose an European Economic Area (EEA) family permit on a third-country national family member of a Union citizen who possesses a valid residence card issued under article 10 of the directive by the authorities of another member state.

It may be recalled that the McCarthy family owns houses in Spain and the UK and that Mr McCarthy has a daughter who like him is a dual British and Irish national. However, despite her Spanish residence card, issued pursuant to article 10 of the directive, in order to be able to enter 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 2012 in the English High Court before Haddon-Cave J, the McCarthy family sought declarations that article 5(2) of the directive had been improperly transposed in the UK and that the SSHD was acting unlawfully by issuing guidance to border staff and carriers that was incompatible with article 5(2) of the directive. The English court asked the CJEU three questions about (i) whether article 35 of the directive 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; (ii) whether article 1 of the protocol entitles the UK to require residence card holders to obtain an entry visa prior to arrival at the frontier; and (iii) if the answers to (i) and (ii) are 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 was justifiable.

Anxieties about a systemic problem of abuse of rights and fraud by third-country nationals were raised by the poor old UK (which 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 such worries and at first instance Haddon Cave J shared the UK’s concerns regarding abuse of rights – such as the cloudy issue of marriages of convenience for example. However, Advocate General Szpunar said (see here) that the UK was unilaterally suspending freedom of movement. He found that the numbers did not support a systemic abuse of rights and fraud case as made out by the UK. In particular, the Advocate General discerned that “the United Kingdom rejected, based on concerns about the authenticity of marriages, 176 applications for EEA family permits (out of 256 cases where abuse was suspected and which represent approximately 2% of the applications received in that period).” Unsurprisingly, the CJEU has confirmed that a third-country national family member of a Union citizen holding a residence card issued by a member state does not need to obtain a visa prior to entering another member state.

The CJEU said that the first two questions were best examined together as the English court was essentially asking whether, in pursuit of an objective of general prevention, the directive and the protocol allowed the UK to impose an entry permit on a third-country national family member who is a holder of a residence card issued by another member state. As regards interpretation of the directive, the CJEU reiterated at paras 30–31 that in light of O. and B., C-456/12, EU:C:2014:135 and related case law, that the directive aims not only to facilitate the exercise of the primary and individual right – conferred directly on Union citizens by article 21(1), TFEU – to move and reside freely within the territory of the member states but that it also aims to strengthen that right.

Moreover, the court said at paras 32–33 that in line with Metock and Others, C-127/08, EU:C:2008:449 the law laid down in the directive cannot be interpreted statically and must not be stripped of its effectiveness and “under objective conditions of dignity” the right of all Union citizens to move and reside freely within Union territory should, irrespective of nationality, be provided to their family members. However, the court also recalled that under the provisions of EU law on Union citizenship the right of a third-country national is not autonomous and is derived from a Union citizen’s exercise of freedom of movement. As held in Metock, O. and B., Dereci and Others, C-256/11, EU:C:2011:734 and Iida, C-40/11, EU:C:2012:691, only those family members, as listed in article 2(2) of the directive, of a Union citizen who has who exercised his right of freedom of movement by becoming established himself in another member state, derive rights of entry into and residence in a member state. In the instant case, it was clear to the CJEU at para 38 that Mr McCarthy and Mrs McCarthy were beneficiaries under article 3(1) of the directive.

The court observed at paras 39–40 that article 5 of the directive requires member states to allow Union citizens and their third-country national family members to enter their territory with a valid passport and that in the event that the latter hold a valid residence card they are exempt from the visa requirement and, as established by recital 8, this measure aims to facilitate the free movement of third-country national family members of a Union citizen. In light of the fact that the wording of article 5 mentions “member states” in plural and does not make a distinction in relation to the member state of entry, the CJEU held that:

41. … Thus, there is nothing at all in Article 5 indicating that the right of entry of family members of the Union citizen who are not nationals of a Member State is limited to Member States other than the Member State of origin of the Union citizen.

42. Accordingly, it must be held that, pursuant to Article 5 of Directive 2004/38, a person who is a family member of a Union citizen and is in a situation such as that of Ms McCarthy Rodriguez [i.e. Mrs McCarthy] is not subject to the requirement to obtain a visa or an equivalent requirement in order to be able to enter the territory of that Union citizen’s Member State of origin.

As regards the interpretation of article 35 of the directive, the CJEU observed that in order to tackle “systemic” abuse of rights and fraud, UK legislation, i.e. the 2006 regulations, requires a third-country national family member of a Union citizen to get a visa prior to entering the UK and that this blanket requirement needed to be met by everyone irrespective of whether or not they are connected to any individual wrongdoing or misconduct. The CJEU held at para 44 that in terms the UK legislation levies this additional requirement without questioning the accuracy of the details and the authenticity of the existing residence card issued pursuant to article 10 of the directive and therefore absolutely and automatically denies third-country national family members of a Union citizen the right, laid down in article 5(2) of the directive, to enter the member states without a visa.

Equally, whilst the court’s jurisprudence related to the directive does not entirely divest the member states of controlling the entry of family members of Union citizens, where rights of admission and residence in the host member state are derived from the directive, following Metock, the state in question may only limit the right in compliance with articles 27 and 35 of the directive. Where it is justified, on the individual circumstances of a case, article 27 allows member states to deny entry and residence on grounds of public policy, public security or public health and cases like Jipa, C-33/07, EU:C:2008:396 and Aladzhov, C-434/10, EU:C:2001:750 establish that issues of general prevention and reasons that are disconnected from individual cases are to be rejected.

The court noted at paras 47 and 48 that in order to control abuse of rights or fraud article 35 empowers member states to refuse, terminate or withdraw any right conferred by the directive but that such steps were subject to proportionality and procedural safeguards and that rights of admission and residence “are conferred on Union citizens and their family members in the light of their individual position.” Measures adopted in connection to abuse are expressly stated to be conditional on the procedural safeguards laid down in articles 30 and 31 and the court noted that recital 25 records that the procedural safeguards intend to guarantee the preservation of Union citizens and their family members’ rights in the event they are refused entry or residence in another member state. Similarly, the court clarified at para 51 that because under the directive rights are conferred on individuals, the redress mechanisms are formulated to facilitate the making of individual claims by persons who feel that the competent national authorities and/or courts should recognise the individual right claimed.

Therefore, as explained by the court at paras 52 and 53, the scheme of the prevention of abuse is such that refusal, termination or withdrawal of a right given by the directive “must be based on an individual examination of the particular case” and in the absence of “an individual examination of the particular case” it was impermissible for member states to refuse third-country family members of a Union citizen holding a valid residence card leave to enter their territory. So, applying by analogy the case of Dafeki, C-336/94, EU:C:1997:579 (see summary), in circumstances where no doubt exists as regards the authenticity of the residence card in question and the accuracy of the data appearing on it and where no solid evidence connected to the individual case in question exists to justify finding an abuse of rights or fraud, the member states must “recognise such a residence card for the purposes of entry into their territory without a visa”.

In light of the judgments in Hungry v Slovakia, C-364/10, EU:C:2012:630 and O. and B., the court reiterated at para 54 the twofold test for proving an abuse of rights as (i) a mixture of objective circumstances whereby the purpose of the EU rules has not been achieved notwithstanding formal observance of the conditions prescribed therein and (ii) a subjective element extracting the advantage provided by EU law by artificially creating the prescribed conditions. Moreover, it was clear to the CJEU at paras 55 et seq that:

  • The UK failed to rely on any express provision of law in making its case for widespread fraud and an abuse of rights purportedly perpetrated by third-country nationals contracting sham marriages or using fake residence cards and therefore a measure erected on the basis of general prevention excluding an assessment of individual conduct of the parties concerned was unjustifiable.
  • If accepted, the UK’s autonomous actions in fighting fraud meant that that the mere fact of belonging to a particular group of persons would allow the member states to refuse to recognise an express right given by the directive to third-country national family members of a Union citizen notwithstanding the fact that they met the conditions prescribed by the directive. This was also the case if recognising the right is restricted to holders of residence cards issued by certain member states only.
  • These automatic measures cannot be allowed to prevail because the provisions of the directive would be left unapplied and “and would disregard the very substance of the primary and individual right of Union citizens to move and reside freely within the territory of the member states and of the derived rights enjoyed by those citizens’ family members who are not nationals of a member state”: para 57.
  • Therefore, in pursuit of an objective of general prevention, article 35 of the directive does not permit a member state to require third-country family members of a Union citizen who hold a valid residence card to also obtain under national law an entry permit – like the EEA family permit in the instant case – to be able to enter its territory.

In relation to the protocol, noting that the EU is committed to the abolition of internal border controls and the movement of persons, the court said at paras 59–60 that because the UK did not participate in the Schengen acquis and the common visa policy it was entitled – “as it may consider necessary” – to apply controls at its frontiers in relation to Union citizen entrants and their dependants so as to verify their right of entry and decide whether or not to admit them into its territory. However, such controls conducted at frontiers, which are preventative and intend to stop unlawful crossing of the UK’s borders with the other member states, are aimed at confirming whether those seeking entry into the UK have this right under EU law or if not whether they should be permitted to enter the UK.

So pursuant to the protocol it is possible for the UK to verify whether a third-county national family member of a Union citizen possesses the documents specified in article 5 of the directive and in order to prevent borders from being crossed unlawfully such verification may include examining the authenticity of these documents and “correctness of the data appearing on them as well as examination of concrete evidence that justifies the conclusion that there is an abuse of rights or fraud”: para 63. However, none of this meant that a member state like the UK could disregard an existing residence card because it must “in principle” recognise a residence card produced pursuant to article 10 of the directive and grant entry into its territory without a visa. Therefore, despite the UK’s entitlement to verify whether someone seeking entry into its territory really satisfies the conditions for such entry, including those provided for by EU law, the CJEU held at para 64 that the protocol:

does not permit the United Kingdom to determine the conditions for entry of persons who have a right of entry under EU law and, in particular, to impose upon them extra conditions for entry or conditions other than those provided for by EU law.

UK Border Passport Control Terminal 5 Heathrow Airport, England, United KIngdom, UKApplying this rationale to the McCarthy family, it was unmistakably the case that by requiring Mrs McCarthy to get an EEA family permit despite her being in possession of a valid residence card issued under article 10 of the directive the UK had imposed “a condition for entry which is additional to the conditions for entry provided for in Article 5 of the directive, and not simply verification of those conditions ‘at frontiers’”: para 65.

An appearance by Dominic Grieve QC, who Mr McCarthy rather sportingly calls a “gentleman” and who according to Mr McCarthy was “handed the poison chalice” by the government, himself failed to save the day for the UK in this case. Professor Peers, who Mr McCarthy has sought to correct on the issue of factual evidence by arguing that the UK failed to offer any evidence to support its allegations of abuse either in the English High Court or the CJEU, reckons it is “reasonable to argue that further steps should be taken to reduce the cases of fraud, by making the cards more secure – without in any way restricting the free movement of genuine family members.” The Professor’s expert opinion is that EU states “should agree in principle to introduce secure residence cards as soon as possible.”

The effects of such judgments is often misconstrued and misrepresented by the press and politicians. As observed by Professor Peers, this judgment is not a free for all and his conclusions are reproduced below:

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).

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Arrivals, Citizens Directive, CJEU, European Union, Judicial Review, Pakistan, Politics and tagged , , . Bookmark the permalink.

2 Responses to UK Loses Key Case on Abuse of Rights

  1. Birthright citizenship as nationality of convenience: Prepared for discussion at the Council of Europe conference on “Nationality and the Child”, 11-12 October 2004:

  2. Philip Adey says:

    UK immigration officials adhere to the McCarthy decision? I am a UK citizen resident In Italy. My wife is a non-EEA national with right of permanent residence in Italy. We want to visit Britain as tourists for one week. If I understand McCarthy correctly, my wife is entitled to enter the UK without even an EEA Family Permit. However, I am told that the airlines will not carry her without the EEA Permit and that the British immigration authorities would probably assert she must have either an EEA Family Permit or even tourist visa!
    I would be very grateful for any information you or any readers could give me on this subject.

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