Brussels, 05/05/2011 (Agence Europe) - EU citizens who have never exercised their right of free movement cannot invoke Union citizenship to regularise the residence of their non-EU spouse. Where such persons are not deprived, by national measures, of their right to move and reside within the territory of member states, their situation has no connection with EU law.
In its judgement in Case C-434/09, delivered on Thursday 5 May, the Court answered two questions raised by the Supreme Court of the United Kingdom, to which litigation involving Ms McCarthy had been referred. The person in question wanted to have Union law prevail due to her dual nationality rights as a British and Irish citizen in order to gain right of stay in the United Kingdom for her spouse, of Jamaican origin. With this in view, Ms McCarthy, although having always lived in the United Kingdom, had requested a residence permit in her capacity as an Irish national and, in parallel, her husband had requested authorisation to stay as the spouse of an EU citizen. Their requests were refused on the grounds that Ms McCarthy could not enjoy rights prevailing under EU law given that she had never exercised her right to move freely or reside in another other member state other than the United Kingdom. The Supreme Court of the United Kingdom called, therefore, on the Court of Justice of the EU to interpret the relevant directive in this respect (2004/38/EC).
First of all, the Court specifies that this directive concerns the movement and stay of European citizens in member states other than the state of which they hold the nationality. The directive, the Court states, cannot therefore apply in the case of Ms McCarthy as: - being of British nationality, she enjoys an “unconditional right of residence” in the UK under the principle of international law and not under the rights set out in the directive in question; - and the fact that Ms McCarthy has the nationality of more than one member state does not mean that she has made use of her right to freedom of movement. The directive, therefore, cannot apply to Ms McCarthy's husband either as he is not the spouse of a member state national who has exercised her right of freedom of movement.
Secondly, as a national of at least one member state, Ms McCarthy enjoys the status of EU citizen and is entitled to all relevant EU citizen rights, including that of free movement and of residence throughout the EU. The fact that the British authorities had not taken her Irish nationality into account when recognising her right to stay in the UK in no way affects her right to stay in the UK and to move and stay freely in the other member states, or the effective entitlement to other rights pertaining to her status of EU citizen. Consequently, the situation of Ms McCarthy and all the elements relevant to this situation fall within the scope of a single member state. The case is therefore “covered exclusively by national law”, and is therefore in no way linked to Union law. Ms McCarthy cannot, therefore, link her right of stay in the United Kingdom to the rights to which she is entitled as a citizen of the European Union. (F.G./transl.jl)