Important court of justice ruling on UK border security controls and migration of non-EU members to the UK

Sean McCarthy & Others v Secretary of State for the Home Department (on reference from the High Court of Justice, England & Wales) (case number: C-202/13)

On Thursday 18 December 2014, at some point shortly after 9:30 am Luxembourg time, the Grand Chamber of the Court of Justice of the European Union (the ‘CJEU’, the Court that regulates the interpretation of all EU law) will deliver its judgment on questions referred to it by the High Court in London, on the critical issue of the UK’s interpretation of EU free movement rights.

The case is of exceptional importance, as it will determine the right of the UK to regulate and control border and visa checks for non-EU nationals travelling to the UK with their EU family members. It will also determine the extent to which the UK can challenge the validity of EU Residence Cards issued by other Member States in circumstances where the UK has concerns about the security features of those documents and the alleged risk to the UK of potential abuse of EU free movement rights.

The principle claimant in the case is Sean McCarthy who is a dual British and Irish national, living and working in Spain (exercising EU free movement rights). He is married to a Colombian citizen, Patricia McCarthy Rodriguez, and they have 2 young children who are both British citizens. Under EU law (Article 5(2) of the Citizen’s Directive) Patricia McCarthy claimed she should be allowed to travel to the UK with her British family, from their family home in Spain, without having to obtain a British visa, because she holds an EU Residence Card issued by the Spanish Government. The UK, however, requires Mrs McCarthy to obtain a “Family Permit” visa every 6 months, if she wants to travel to the UK with her husband and children. Mrs McCarthy has to go from Marbella to the British Embassy in Madrid in order to be fingerprinted and each time complete detailed application forms. The process takes several weeks, even months. The UK invoked the visa regime because it maintained that it had concerns about other EU Member State’s Residence Cards, because some do not allegedly meet international security standards. The UK has also told the Court of Justice that it believes Britain is a target for fraudulent applications from people using EU free movement rights.

As a result of alleged concerns of fraudulent abuse the UK unilaterally decided not to recognise other EU Member State’s Residence Cards (only very recently the UK stated it would recognise German and Latvian Residence Cards) as sufficient documentation to exempt non-EU family members from UK entry visa requirements.

The UK’s Attorney General appeared before the CJEU to argue that the UK can impose the requirement of a family permit to protect its borders and relied on the Citizen’s Directive (Article 35) and the Frontiers Protocol (Protocol 20 of the Treaty on the Functioning of the European Union ie the Lisbon Treaty).

Mr and Mrs McCarthy commenced legal proceedings against the UK when their baby daughter, Natasha McCarthy, became seriously ill with an obstructed intestine and needed urgent treatment from a Harley Street surgeon. The family went to the British Embassy in Madrid and pleaded with officials to issue Mrs McCarthy with a visa to travel to the UK with her baby and husband, but the Embassy refused to expedite a visa and threatened to call the police to remove the family from the building. The McCarthy family has always maintained that the UK’s visa scheme and failure to recognise Patricia McCarthy’s Spanish Residence Card is in breach of EU free movement rights.

The High Court in London initially heard the legal challenge, but as the case turned on the correct interpretation of EU law, the High Court referred the question of legality to the Court of Justice of the EU in April 2013. The case was allocated to the Grand Chamber. The then Attorney General, Dominic Grieve QC, argued the UK’s case before the Grand Chamber in March 2014. In May 2014, the Advocate General to the Court, Mr Szpunar, from Poland, gave a preliminary opinion that the UK was in breach of EU law and could not unilaterally suspend recognition of other EU Member States’ Residence Cards by adopting measures of general application on the alleged grounds of abuse and fraud. He noted that the UK accepted that Mr and Mrs McCarthy’s marriage was genuine and there was no allegation that the family were abusing EU free movement rights. The Advocate General stated that it was unlawful for the UK to require Mrs McCarthy (a Colombian national) to obtain a visa whenever she wanted to travel to Britain, from Spain, with her family. The UK could not invoke visa and border controls of general application in such cases save only in respect of specific cases where fraud was identified for particular individuals.

The Grand Chamber of the Court of Justice will give its judgment on the issue on Thursday, 18 December 2014. It also affects the UK’s ability to control its borders against EU migration, and clearly has an impact in the UK from the current political perspective.

The McCarthy family’s solicitor, human rights lawyer Martin Howe, who previously represented British Army Gurkhas in their immigration battle, said: “The UK’s ability to control its borders, the issue of free movement in the EU and the UK’s very membership of the European Union are key issues in the lead up to the May 2015 General Election. This case could hardly come at a more important time.

If, as my clients anticipate, the Court of Justice gives judgment in line with the Advocate General, the decision will have very important implications for the UK’s immigration strategy. The case underlines the central importance of free movement to EU citizens and their families, including British citizens’ rights. The decision will potentially remove the ability of the Home Secretary to mandate visas for large numbers of non-EU nationals living with EU citizens in the other 27 EU States.

The Home Secretary argued that the UK genuinely feared for control of its borders as a result of alleged fraud and abuse of EU Residence Cards. However, when Mr McCarthy’s case came before the Court of Justice the UK’s alleged concerns simply did not stand up to close scrutiny.

The UK will be bound by the Court of Justice’s ruling, no matter what spin the Home Secretary might wish to put on this decision when it comes out. I am confident that the Court will follow the Advocate General’s opinion and rebuke the UK.

If the UK wants to remain in the “EU Club” it needs to play by the membership rules, rather than flout them.”

Solicitors from Howe & Co Solicitors will be present at the Court of Justice in Luxembourg on Thursday 18 December 2014, and will be available for a press conference and give interviews before and after the Court delivers its judgment. They will also be available on return to London later that afternoon.

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