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Case C- 434-09: Shirley McCarthy v. Secretary of State for the Home Department

On Thursday the 5th of May the Court of Justice handed down its judgment in the case of McCarthy v Secretary of State. Concerning an attempt by an EU citizen to rely on EU law to obtain residence for a third country national family member against her home member state, McCarthy clarifies and refines certain aspects of the recent decision of Zambrano.

The present case arose from an attempt by Mrs McCarthy, a dual Irish-UK national, to rely on EU citizenship rights in order to secure a right of residence for her Jamaican husband in the UK. Mrs. McCarthy has never resided in another member state. She has never been in a position of employment, is not self-sufficient and relies on social welfare benefits. Following her marriage to Mr. McCarthy, a Jamaican national without a right of residence in the UK, she applied for and received an Irish passport. Relying on her status as an Irish citizen resident in the UK she sought a right of residence in the UK as an EU citizen based on Directive 2004/38/EC. At the same time Mr. McCarthy sought a right of residence as the spouse of an EU national. Mrs McCarthy’s request was refused on the grounds that as neither a worker, a self-employed person nor a person of sufficient independent means she did not qualify for permanent residence under the Directive. After a number of appeals the Supreme Court of the United Kingdom requested a preliminary ruling on an interpretation of the Directive from the European Court of Justice (ECJ).

The ECJ reformulated the questions of the UK Supreme Court to include an assessment of the applicability of both the Directive and Article 21 TFEU.

The Directive was held to be inapplicable to the situation of Mrs McCarthy. In particular it only applied to situations where a Union citizen has moved to another Member State. In addition, the Directive concerns the conditions of residence of a Union citizen in another Member State. As a national of the UK Mrs McCarthy’s residence there could not be subject to conditions. The Directive was therefore inapplicable.

Nor could Mrs. McCarthy rely on Article 21TFEU. While the fact that she had never exercised her right of free movement did not necessarily preclude her relying on her status as a Union citizen, the national measure in question did not have ‘the effect of depriving her of the enjoyment of the substance of the rights associated with her status as a Union citizen’. In particular it did not have ‘the effect of obliging Mrs McCarthy to leave the territory of the European Union.’ The situation was therefore held not to be governed by EU law. The dual nationality of Mrs McCarthy did not in itself alter this conclusion. As a consequence Mr. McCarthy did not enjoy a right of residence under EU law.

McCarthy follows the groundbreaking decision in Zambrano and both confirms its general finding while limiting its application. McCarthy confirms the general rule that EU citizenship law, and in particular Articles 20 and 21 TFEU prohibit national measures that deprive their own nationals of ‘the very enjoyment of the substance of rights conferred by the status of EU citizenship.’ The Court equally held that Directive 2004/38/EC only applies where a citizen moves to another Member State. In confirming this aspect of Zambrano, the Court elaborates significantly on its reasoning and relies on the wording, purpose and context of the Directive. More specifically, McCarthy confirms that one of the rights conferred by the status of EU citizenship is residence on the territory of the Union. Perhaps as important as the practical implication is the symbolic connection between citizenship and territory emerging from Zambrano and confirmed in McCarthy.

However, perhaps more significantly, McCarthy places limits on the application of Zambrano. Contrary to some readings the ‘purely internal’ rule has not been abolished but persists, if in a modified form. Only in exceptional cases, where ‘the very enjoyment of the substance of rights conferred by the status of EU citizenship’ is in question does a situation with no cross-border element fall within the scope of EU law. McCarthy also clarifies the situations of dual nationals and discusses previous cases touching on the issue. The Court clarified that the mere fact of dual nationality does not, in and of itself, bring the situation into the scope of EU law. Rather, a national measure must impact on a specific right conferred by EU law. On the specific (and more practical) issue of residence rights for family members of citizens, McCarthy would appear to limit the application of Zambrano to situations where a carer relationship exists. Thus, whereas in Zambrano the company (and indeed authorisation to work) of a carer-parent was considered essential for the continued residence of the citizen on the territory of the Union, in McCarthy the same logic did not apply to the company of a spouse.