Family Life and EU Citizenship: A commentary on McCarthy C-434/09 5 May 2011

By Helena Wray, Middlesex University

This recent decision of the Court of Justice of the European Union (CJEU), formerly the European Court of Justice (ECJ), raises questions about the relationship between EU citizenship (as provided by Art.20 Treaty on the Functioning of the European Union and which is a status that is additional to national citizenship), the exercise of free movement rights and rights to residence and family reunification. The CJEU found that Mrs McCarthy, a dual Irish/UK national who had lived her entire life in the UK and neither worked nor was self-sufficient, could not rely on the family reunification provisions found in Directive 2004/38 which sets out the free movement rights of EU citizens. Neither could she rely on her EU citizenship.

Family reunification is a vexed area in EU law as it highlights the problem of ‘reverse discrimination’ whereby member state nationals residing in their own country cannot have recourse to the more liberal EU regime enjoyed by the nationals of other member states living alongside them. Taken with other case law in this area, McCarthy does not add much in the way of consistency to the baffling array of rights and restrictions to which the nationals of EEA member states, including of the UK, are subject in this area. While lawyers may be able to conceptualise distinctions based on different legal systems and different sources within those legal systems, their clients, for whom the issue is both more urgent and more opaque, are likely to feel that their personal lives are subject to a series of arbitrary distinctions.

The decision suggests that EU rights to family reunification hinge on the exercise of free movement rights and not on the fact of EU citizenship. At one level, that is coherent even if it relies on an economic vision of the European Union and privileges those for whom intra-EU mobility is a more likely prospect. Yet, following Zambrano (Case C-34/0), EU citizenship must have some independent content beyond the rights specified in Art. 20 as it requires the facilitation of residence by minor citizens. It could be argued that all it means is the right to have rights, to be able to exercise your right to move and trigger access to the more favourable EU regime. Yet, consistent with pronouncements elsewhere, the court in McCarthy suggests something more:
Thus in Ruiz Zambrano and García Avello, the national measure at issue had the effect of depriving the Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status or of impeding the exercise of their right to free movement and residence within the territory of the member states (para53).

The use of the disjunctive ‘or’, which is repeated later in the judgment (at para. 56) suggests that the ‘genuine enjoyment of the substance of the rights’ under Art.20 is not coterminous with the ability to exercise free movement rights. What else might be involved is not elucidated either here or in Zambrano. Nonetheless, it seems, as a minimum, to require member states to give practical effect to the right of a child to live in their country of nationality even if it means facilitating the presence (and economic activity) of parents whose claim is otherwise unmeritorious. It is interesting that, using different sources of law, the UK Supreme Court came to a similar, if less unconditional, conclusion in ZH (Tanzania) v SSHD [2011] UKSC 4.

In McCarthy, the CJEU found that EU citizenship does not involve the right to live in the EU with one’s life partner. Not having such a right apparently does not deprive the Union citizens of the genuine enjoyment of the substance of their citizenship rights. The enhanced family reunification rights attach only to those who exercise free movement rights and Mrs McCarthy did not qualify. It is not absolutely clear whether this was because she had never moved or because she was not economically active or self-sufficient. It seems that it was primarily the former reason. However, her lack of economic activity or self-sufficiency, domestic or cross-border, was alluded to in both Advocate General Kokott’s opinion and the judgment of the court. Advocate General Kokott did not exclude the possibility that reverse discrimination of this kind might, in future, be regarded as unlawful against a national who is economically active or self-sufficient. The court judgment did not so speculate but the point was alluded to at para. 25:
There is no indication … that Mrs McCarthy has ever exercised her right of free movement within the territory of the Member States … Likewise, Mrs McCarthy is applying for a right of residence under European Union law even though she does not argue that she is or has been a worker, self-employed person or self-sufficient person.

It remains open therefore whether an economically active/self-sufficient individual in Mrs McCarthy’s position (or even one without dual nationality which did not, in the event, figure very prominently in the reasoning) might succeed in future on the basis that reverse discrimination is unlawful. Consistent with previous decisions, the court also left open the possibility of permanent residence being acquired in ways other than the exercise of rights under Directive 2004/38 provided it is not claimed solely on the basis of the right of a national to reside in their own state. A fuller elaboration of both these questions however must await a future occasion.

At first glance, therefore, the judgment represents a coherent if incomplete piece of reasoning although the outcome is unfortunate for Mrs McCarthy and re-emphasises the economic basis of rights. EU citizenship does not, on its own, bring with it the liberal rights to family reunification associated with cross-border activity. Nonetheless, in so finding, it leaves unresolved the deeper fracture represented by reverse discrimination. Family reunification rights are considered critical to the fulfilment of free movement rights and they have been interpreted to give them their maximum impact. A stream of ECJ and CJEU cases, from Surinder Singh to Baumbast to Ibrahim and Teixeira, point in the same direction. The argument is that obstacles to the enjoyment of family reunification will inhibit the exercise of free movement rights. In other words, family life is very important to ensuring that EU citizens are able to exercise those rights. So important that in Ibrahim (Case 310/08), Danish national Mr Ibrahim spent around six months working in the UK and this was sufficient to give his child, born after his arrival and not yet in education when he ceased to be a worker, the right to remain in the UK until completion of his education and the child’s third country national mother, now separated from Mr Ibrahim, the right to remain as his primary carer without fulfilling any conditions as to self-sufficiency. To do otherwise, according to the Attorney General’s opinion in Ibrahim, ‘might dissuade that citizen from exercising the rights to freedom of movement laid down in Article 39 EC and would therefore create an obstacle to the effective exercise of the freedom thus guaranteed by the EC Treaty’ (para 23).

Ibrahim is an atypical case because it relied not on Directive 2004/38 but on Regulation 1612/68. This Regulation predates the Directive and deals with workers who move to another member state. It was not repealed by the Directive and so remains in force and enhances the rights of workers and their families particularly in relation to education, creating anomalies within the structure of free movement rights themselves. In the broader context now thrown up by McCarthy, it also suggests an even more fundamental disconnect. If rights to family reunification are so critical to the right of free movement that even the slightest prospect of their possible future disruption outweighs the usual claims of domestic immigration control, are not such rights also central to the ‘genuine enjoyment’ of the right of citizenship? Why is family life a critical consideration in one legal context and not in another? More concretely, Mrs McCarthy and those in her position might justifiably be puzzled as to why her reliance on benefits (or, in other cases, her spouse’s inability to speak English or their ages) precludes her, as a citizen, from enjoying family life with her third country husband while Mr Ibrahim’s minimal work-record permits his estranged third country wife to remain in the UK and claim the very same benefits regardless of age and language capability.

Such a gross anomaly risks undermining the credibility of the domestic regime and/or the free movement regime. The issue has been noted by the UK judiciary. In the recent case of Quila, which challenged the domestic requirement that an incoming spouse and sponsor must be at least 21 years old, Pitchford LJ commented that, ‘I find it perplexing that Mr and Mrs Aguilar may live lawfully in the Republic of Ireland but not in the United Kingdom’ (Quila and others v SSHD [2010] EWCA Civ 1482 [72]). Extending rights to non-citizens without extending the same to citizens risks undermining the concept of citizenship.