Case C‑202/13, McCarthy

Where third-country nationals hold a ‘residence card of a family member of a Union citizen’, UK cannot make right of entry subject to requirement to first obtain visa

>> McCarthy had dual British and Irish nationality. He and his wife, a Colombian national, had  been resident since 2010 in Spain where they had a house. Mr McCarthy and Ms McCarthy Rodriguez also owned a house in the United Kingdom and travelled regularly to that country. Ms McCarthy Rodriguez held a ‘residence card of a family member of a Union citizen’ (‘residence card’) issued by the Spanish authorities. Under the UK provisions concerning immigration, in order to be able to travel to the UK holders of such a card must apply for an entry permit (‘EEA family permit’), which was valid for six months. This family permit could be renewed provided that its holder went in person to a British diplomatic mission abroad and filled in a form setting out details relating to his or her finances and employment. Taking the view that those national provisions infringed their rights of free movement, in 2012 the McCarthy family brought an action before the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court). 

This Court asked whether Article 35 of Directive 2004/38 and Article 1 of Protocol No 20 must be interpreted as permitting a Member State to require, in pursuit of an objective of general prevention, family members of a Union citizen who were not nationals of a Member State and who held a valid residence card issued under Article 10 of Directive 2004/38 by the authorities of another Member State to be in possession, pursuant to national law, of an entry permit, such as the EEA family permit, in order to be able to enter its territory.

The Court first of all stressed that measures adopted by the national authorities, on the basis of Article 35 of Directive 2004/38, in order to refuse, terminate or withdraw a right conferred by that directive must be based on an individual examination of the particular case.

The UK could according to the Court not refuse family members of a Union citizen who were not nationals of a Member State and who held a valid residence card, issued under Article 10 of Directive 2004/38, the right, as provided for in Article 5(2) of the directive, to enter their territory without a visa where the competent national authorities had not carried out an individual examination of the particular case. The Member States were required to recognise such a residence card for the purposes of entry into their territory without a visa, unless doubt was cast on the authenticity of that card and the correctness of the data appearing on it by concrete evidence that related to the individual case in question and justifies the conclusion that there is an abuse of rights or fraud. The Court stated that proof of an abuse required, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the EU rules, the purpose of those rules had not been achieved, and, second, a subjective element consisting in the intention to obtain an advantage from the EU rules by artificially creating the conditions laid down for obtaining it (judgments in Hungary v Slovakia, C‑364/10, EU:C:2012:630, on which I wrote this post). 

The Court thus concluded that Article 35 of Directive 2004/38 must be interpreted as not permitting a Member State to require, in pursuit of an objective of general prevention, family members of a Union citizen who were not nationals of a Member State and who beld a valid residence card, issued under Article 10 of that directive by the authorities of another Member State, to be in possession, pursuant to national law, of an entry permit, such as the EEA family permit, in order to be able to enter its territory.

With regard to the interpretation of Protocol No 2, the Court held  in the case of family members of a Union citizen who were not nationals of a Member State and who sought to enter the United Kingdom in reliance upon a right of entry provided for by Directive 2004/38, verification, for the purposes of Article 1 of Protocol No 20, consisted, in particular, in checking whether the person concerned is in possession of the documents prescribed in Article 5 of that directive.The Court held that the Member States wree, in principle, required to recognise a residence card issued under Article 10 of Directive 2004/38, for the purposes of entry into their territory without a visa. Article 1 of Protocol No 20 authorised the United Kingdom to verify whether a person seeking to enter its territory in fact fulfilledthe conditions for entry, including those provided for by EU law. On the other hand, it did not permit the United Kingdom to determine the conditions for entry of persons who had 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. The Court held that that  was precisely the case here. By requiring an EEA family permit to be obtained in advance, the national legislation at issue in the main proceedings prescribed, for family members of a Union citizen who were not nationals of a Member State and who were in possession of a valid residence card issued under Article 10 of Directive 2004/38, a condition for entry which was additional to the conditions for entry provided for in Article 5 of the directive, and not simply verification of those conditions ‘at frontiers’.