Court of Justice Grand Chamber rules that UK law breaches EU freedom of movement

The Grand Chamber of the Court of Justice of the European Union (CJEU) has delivered its judgment in Luxembourg today (18/12/14) in the leading free movement case of R (McCarthy and others) v Home Secretary (C-202/13). It rules that UK visa legislation and carriers liability provisions are incompatible with EU law and that the UK’s Frontier Protocol provides it with no opt out from the relevant free movement principles. Mark Henderson and David Lemer acted for the McCarthy family, instructed by Howe & Co. Dominic Grieve QC MP, the then Attorney General, presented the case for the UK Government before the Grand Chamber, informing it that "the issues were of exceptional importance from the perspective of the UK", acting along with Tim Ward QC and Gerry Facenna for the Home Secretary.

 

The issue is whether it is lawful for the UK to refuse to implement Article 5(2) of the Citizens Directive, a provision that the European Commission stated was an “important right which lies at the heart of free movement”. It entitles the third country national family members of EU citizens to enter the UK without a UK visa on the basis of a residence card issued by the Member State of which they are resident. The UK contended that Member States had a general power to suspend free movement rights because of the potential for abuse of rights and fraud and that other Member States’ procedures in issuing residence cards were unsatisfactory. It contended that it could, in any event, rely on the UK’s Frontier Protocol to the Lisbon Treaty as giving it an opt out from the relevant free movement law.

 

The Grand Chamber pointed out that UK law deprived the McCarthy family of their free movement rights " where, as in the case in point, the national authorities do not consider that the family member of a Union citizen may be involved in an abuse of rights or fraud" (para 44). It concluded that the UK had acted unlawfully by unilaterally refusing to comply with EU law on the basis of its claimed general concerns about abuse and fraud.  It held that:

 

56      Indeed, the adoption of measures pursuing an objective of general prevention in respect of widespread cases of abuse of rights or fraud would mean, as in the case in point, that the mere fact of belonging to a particular group of persons would allow the Member States to refuse to recognise a right expressly conferred by Directive 2004/38 on family members of a Union citizen who are not nationals of a Member State, although they in fact fulfil the conditions laid down by that directive. The same would be true if recognition of that right were limited to persons who are in possession of residence cards issued by certain Member States, as the United Kingdom has envisaged.

 

57      Such measures, being automatic in nature, would allow Member States to leave the provisions of Directive 2004/38 unapplied and would disregard the very substance of the primary and individual right of Union citizens to move and reside freely within the territory of the Member States and of the derived rights enjoyed by those citizens’ family members who are not nationals of a Member State.

 

It, further, ruled that the Free Movement Directive and the Frontier Protocol

 

"must be interpreted as not permitting a Member State to require, in pursuit of an objective of general prevention, family members of a citizen of the European Union who are not nationals of a Member State and who hold a valid residence card, issued ... by the authorities of another Member State, to be in possession, pursuant to national law, of an entry permit, such as the [UK issued] family permit, in order to be able to enter its territory."

 

The case had been brought by the McCarthy family by way of a judicial review challenging the legality of the UK’s implementing regulations. In his judgment following the substantive hearing, Haddon Cave J preliminarily accepted the Government’s case that the Frontier Protocol “effectively sweeps EU law aside as an obstacle to the exercise of UK’s... widest possible ... discretion ...  exercisable notwithstanding anything in EU law...” He nevertheless agreed that it was necessary to refer the McCarthys’ challenge to the CJEU.

 

Several Member States as well as the European Commission intervened and all supported the McCarthy family’s case. The European Commission told the Grand Chamber that it was content to adopt as its own the McCarthy family's “extremely thorough and well-argued observations”. The Advocate General observed in his opinion that “to 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 Grand Chamber's ruling is binding on the Administrative Court which will now dispose of the judicial review, and on all other courts and tribunals considering these issues, and is binding on the Home Office when exercising immigration controls.

 

The Grand Chamber's judgment is here.

 

The CJEU's press release is here.

 

The Advocate General’s opinion is here.

 

The press release of the AG's Opinion is here:

 

Media coverage of the judgment:

BBC, Guardian, Telegraph, Mail

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