"The McCarthy Case" V " The Zambrano Case" Where do we go from here?
Another greatly anticipated judgment has been delivered from the European Court of Justice in what has become know as "The McCarthy Case". The case involved a dual national of the United Kingdom and Ireland who was born in the United Kingdom and has always resided there, without ever having exercised her right to move and reside freely within the territory of other EU Member States. She applied for a residence card for her spouse pursuant to European Law, and particularly Directive 2004/38. The UK Supreme Court referred a query to the Court of Justice regarding whether Mrs McCarthy could invoke the rules of European Union law designed to facilitate the movement of persons within the territory of the Member States.
The Court of Justice found that Ms McCarthy could not properly rely on the Directive as it protects the right to travel/reside only of those Union citizens who have exercised free movement. The Court further stated as follows:
“Article 21 TFEU is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State, provided that the situation of that citizen does not include the application of measures by a Member State that would have the effect of depriving him of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen or of impeding the exercise of his right of free movement and residence within the territory of the Member States.”
Thus, in the absence of national measures that have the effect of depriving Union Citizens of the genuine enjoyment of the substance of their rights arising by virtue of her status as a Union citizen, such measures have no connection with European Union law and are covered exclusively by national law.
It is easily interpreted from the Court of Justice’s reasoning that if the UK had taken measures which would infringe upon Ms McCarthy’s genuine enjoyment of her rights as a Union Citizen, this would bring the matter within the domain of European Law. For example, should the UK authorities actually have taken the step to refuse Ms McCarthy’s husband a right of residency under National provisions, without good reason, her rights as a Union citizen would then be infringed and she would have an action in EU Law. Prior to such action by the UK authorities, it seems the Court of Justice will give the UK the benefit of the presumption that they will apply a domestic standard acceptable in European Law terms. Thus, there appears within the judgment a warning to Member States to maintain national measures affecting the citizens of their State such that they do not infringe upon the substance of Union Citizen’s rights.
It must be accepted that fundamental to these rights of Union Citizens is an entitlement to reside in the Member State of one’s nationality with one’s immediate family members, and additionally, by way of comparison to Directive 2004/38, such dependant family members of one’s spouse/partner. This effectively confirms the Reverse Discrimination argument that we have argued in many of our cases before the High Court – that an Irish citizen cannot properly be treated less favourably under national law than a European Union citizen from another Member State residing in Ireland who can benefit from European Law.
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"The Zambrano Case"
In a judgment just out, Zambrano v ONEm Case C-34/0 the European Court of Justice seems to have held that
the parents of a child who is a national of a Member State must be granted the right to work and the right of
residence in that Member State in order to protect the right of the child to live in Europe.
This is an astonishing proposition, if my reading of the case is correct, and represents a massive extension
of the principle in the Chen case.
The facts were that a Colombian couple claimed asylum in Belgium and were refused but never removed.
They had two children in Belgium, both of whom were Belgian citizens. The father worked for a time but this
was illegal work and after a raid on his employer he was sacked. He attempted and failed to claim
unemployment benefits.
The questions for the Court were whether this factual situation gave rise to a right to work and/or a right to reside
for the parents in order to protect the rights of the children. The Court has answered these questions in the
affirmative, it seems. At paragraph 45 the ECJ concludes as follows:
“…Article 20 TFEU is to be interpreted as meaning that it precludes a Member State
from refusing a third country national upon whom his minor children, who are European
Union citizens, are dependent, a right of residence in the Member State of residence and
nationality of those children,and from refusing to grant a work permit to that third country
national, in so far as such decisions deprive those children of the genuine enjoyment of the
substance of the rights attaching to the status of European Union citizen.”
Despite the reference in this paragraph to European Union citizens, the facts of the case were that the children
were Belgian and lived in Belgium: there was no question of direct interference with free movement rights to move
between other EU countries. In Chen the child was living in the UK but was an Irish national and had independent
means of support not involving the parent working in the UK. Zambrano extends the principle to, for example, a
British child living in Britain and with no independent means of support.
In contrast the Tribunal and Court of Appeal in the UK
(see W (China) v Secretary of State for the Home Department
[2006] EWCA Civ 1494) have held that Chen cannot be used to ‘create’ a right a work that did not previously
exist independently.
Here is a link to the judgment if you a n appetite for such things.
