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Immigration EEA Rights in the European Court Case of McCarthy

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As anticipated Advocate General Szpunar leaves no doubt in his EEA Immigration legal advice and opinion published on 21 May 2014 which deals with the scope of the UK’s power to control it’s borders and the powers granted to it by Article 1 of Protocol 20 (on Application of Article 26 of the Treaty of the Functioning of the European Union to the UK and to Ireland) and Article 35 of the Citizenship Directive.

This case came before the AG following a request for a preliminary ruling from the high court of Justice (England & Wales) Queens Bench Division, Administrative case of R (McCarthy & Ors) v Secretary of State for the Home Department [2012] EWHC 3368 (Admin).

The high court referred 3 questions to the Court:

1.Can a Member State adopt a measure of general application in respect of the powers granted by Article 35 of 2004/38/EC or withdraw the right conferred by Article 2 of the directive?;

2.Can UK require EEA family Member Residence Card holders to obtain family permit visas prior to their arrival by virtue of Article 1 of protocol protocol 20?;And

3.If yes, to both the above whether evidence in support of the UK governments approach is sufficient to justify it’s actions in connection to residence card holders?

In summary the McCarthys are a family resident in Spain. The First Claimant Mr McCarthy is a dual British/ Irish national. The Second Claimant Mrs McCarthy Rodriguez is a Colombian national and married to the First Claimant. The Third Claimant Miss McCarthy Rodriguez is their daughter.

At the high court judicial review hearing, the Claimants sought a declaration that Article 5(2) of the Citizens Directive 2004/38/EC On the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (the Directive) has not been correctly implemented in the United Kingdom, and a declaration that the Defendant (the Secretary of State) has acted unlawfully in issuing guidance that is incompatible with that Article.

Article 5(2) of the Directive directs Member States to exempt non-EEA family members from visa requirements otherwise applicable under national law if they hold an EU valid "residence card" issued in accordance with Article 10 of the Directive. The UK has refused to do so because of concerns as to abuse of rights and fraud and the lack of uniform or minimum standards for "residence cards" issued by other Member States.

Under current UK law, all non-EEA family members, including those with "residence cards" issued in other Member States, are required to obtain an EEA "family permit" from the UK Border Agency prior to entering the UK. The "family permit", which is granted for a period of six months, confirms entry clearance to the UK for the purposes of exercising the rights granted by the Directive. Non-EEA family members may also be admitted if they can otherwise establish their entitlement to enter the UK, to accompany or join their EU citizen family member.

The Claimants contend that the Second Claimant, as a holder of a valid Spanish "Residence card of a family member of a Union citizen" issued under Article 10 of the Directive, has a right to travel with her husband to the UK and the UK is not entitled to require her to obtain any visa or to otherwise unlawfully obstruct her entry or to stamp her passport (see Articles 5(2) and 5(3) of the Directive).

The Claimants contend these provisions of the Directive have, however, been incorrectly transposed in the UK by UK legislation which limits the definition of "residence card" to a card issued by the UK Government. The Claimants also contends that the Secretary of State, who is responsible for implementation of the Directive, has issued guidance which is incompatible with the Claimants' rights under the Directive. As a result, the Second Claimant faces difficulties and obstacles in exercising her right of entry to the UK, in particular the onerous requirement of obtaining a "family permit" prior to entry.

The Secretary of State contends that the approach adopted by the UK is lawful on two bases:

(1) First, Protocol 20 to the Treaty on the Functioning of the European Union ("the Frontiers Protocol") allows the UK to maintain at its frontiers with other Member States such controls as it may consider necessary for the purpose, inter alia, of verifying the right of citizens of Member States and of their family members to enter the UK; and

(2) Second, Article 35 of the Directive ("Article 35") permits Member States to adopt the necessary measures to refuse, terminate or withdraw any right conferred by the Directive in the case of abuse of rights or fraud.

The Claimants contend that the matter is acte clair in their favour and the Court should make the declarations sought. The Secretary of State contends that the matter is acte clair in her favour (at least on the basis of the Frontiers Protocol) and the Court should dismiss the application.

The Secretary of State also contends, in the alternative, that this case raises novel and important points of EU law of potentially wide application, which relate to some extent to the actions of other Member States, and which are the subject of parallel infringement proceedings being pursued by the European Commission. In these circumstances, and to avoid a divergence of approach across the EU, the Court should refer to the Court of Justice of the European Union ("CJEU") the question of whether the UK's approach to non-EEA family members holding "residence cards" issued by other Member States is lawful, having regard to the matters set out in the Secretary of State's evidence and the terms of the Frontiers Protocol and Article 35 of the Directive.

This is how it came to be given a preliminary ruling by the AG.

The AG considered this case to provide the first opportunity for the CJEU to give a preliminary ruling on Article 35 of Directive 2004/38/EC’s applicability following the exercise of free movement by a Union Citizen who travelled to a Member State where he is a national, and was accompanied by his third country family member.

The AG in his learned opinion makes no qualms about signalled to the United Kingdom government that it’s desires to maintain border controls [unlike the rest of Europe’s borderless Schengen area] does not give it privilege to circumvent the free movement rights of family members of European Citizens.

The AG forms the view that the evidence adduced by the UK did not meet the threshold required to assert that the case presented a systemic abuse of rights. The AG explains:

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.

The AG in his deliberations stresses the importance of the directives applicability in broad spectrum of cases and it’s practical effects not to be diminished by narrow interpretation. It considered that it must apply in situations like the instant case where an EU citizen after exercising their right of free movement and genuinely residing in another member state will be able to travel back to the Member State of his nationality with his third country national family member. The AG endeavours to show this is the position of citizenship in EU law and in line with the CJEU’s jurisprudence such as Case C-370/90 Singh andCase C-291/05 Eind.</em>

The AG was meticulous in his analysis of other cases involving Union Citizens and free movement rights, more precisely with cases of Case C-434/09 McCarthy (a different McCarthy), Case C-87/12 Ymeraga and Ymeraga Tafarshiku and Case C-40/11 Iida, Case C-256/11 Dereci and Others.

The AG concise in his summary as to why he distinguishes these cases from the instant case explains that the Union Citizens on those cases had never exercised their free movement rights as they had always remained in their Member State of which they were nationals of, and secondly in those cases the Union Citizens has not been accompanied by their family member who was a third-country national.

This in answering questions 1, the AG observes that the UK’s approach in adopting a general measure like the one it currently operates deprives guarantees under Article 30 (notification of decisions) and Article 31 (procedural safeguards) of the directive. Also he observes that measures set out in Article 35 are ‘individual measures’ and not to be used to systematically suspend the rights conferred by the directive. And in answer to question 2 the AG finds that where a family member who is from a third country meets the conditions “that allow him to benefit from the right of freedom of movement, that card must be accepted by the Member States.”

The AG goes on to express further criticism of the UK’s conduct in the McCarthy case observing that the family’s conduct was not fraudulent or an abuse of EU rights and the objectives in the TFUE should not be reduced to a general presumption of fraud. It is insufficient to use this to justify a requirement on the holder of an EEA family Member with a residence permit to need a visa/entry clearance.

In concluding, the AG propose that the Court answer the questions referred by the high court of Justice (England & Wales), Queen's Bench Division (Administrative Court) (United Kingdom) as follows:

1) Article 35 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC does not entitle a Member State 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 the right to be exempt from the obligation to obtain a Immigration visa, when that measure is precautionary and is not based on a prior finding of an abuse of rights in a specific case.

2) 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 United Kingdom and to Ireland does not entitle the United Kingdom to require third-country nationals holding a residence card as family members of a Union citizen, issued in accordance with Article 10 of Directive 2004/38, to have an entry visa that must be obtained before arriving at the frontier.

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