Brussels, 29/11/2010 (Agence Europe) - An EU citizen who holds the nationality of two member states but has lived in only one, cannot use EU law to obtain, through his/her nationality, the right to remain for him- or herself or any members of family in the member state where he/she has always lived.
This, in short, is the opinion which Advocate General Juliane Kokott has delivered to the Court of Justice in case C-434/09, in response to two questions on the right to family unification put by the UK Supreme Court.
The case at issue relates to Mrs McCarthy, who holds dual British and Irish nationality but who has only lived in England. She herself can naturally reside in England. The same is not true, however, for her husband, a Jamaican national. Mrs McCarthy is now seeking, on the basis of her Irish nationality and as an EU citizen, to obtain for herself a right to reside in England. This would then allow her husband, under EU law, to claim a derived right of residence
The British court is asking for interpretation of the concept of “beneficiary” of the right to free movement and residence with member states and of “legal residence” (Articles 3 and 16 of Directive 2004/38/EC) to determine to which these definitions apply in the case at issue.
In her opinion the advocate general argues that fundamental qualitative differences exist between a right of residence which results from law on foreign nationals and a right of residence which results from the nationality of the person concerned in the host member state. If, as in Mrs McCarthy's case, an EU citizen holds the nationality of the host member state and never exercised his/her right of free movement, this is not “legal residence” within the meaning of Article 16 of the above-mentioned directive. Moreover, if a Union citizen in Mrs McCarthy's position, who has never exercised her right of free movement, were to be allowed to rely on Directive 2004/38, that would ultimately result in “cherry-picking”: the citizen could then enjoy the advantages of Directive 2004/38 as regards family unification in respect of her spouse without meeting the objectives of the directive - namely to give effect to and facilitate free movement - and without being subject to any of the directive's conditions, for example the requirement of economic self-sufficiency.
The advocate general suggests that the Court should answer the request for a preliminary ruling as follows: where a Union citizen is a national of two member states of the European Union but has always lived in only one of those two states, she cannot claim a right of residence under Directive 2004/38/EC in that state. (F.G./transl.rt)