Reconciling Eu Complimentary Own Rules Amongst Uk Edge Controls

By Steve Peers 

Today’s Advocate-General’s opinion in the McCarthy illustration raises of import questions well-nigh the compass of the EU’s complimentary displace constabulary rules as well as the human relationship betwixt those rules as well as European Union or national rules on edge controls as well as visas. It concerns Mr. McCarthy, a dual citizen of the U.K. as well as Republic of Ireland residing inward Spain, amongst his third-country national (Colombian) married adult woman as well as their articulation modest fry (also a dual citizen of the U.K. as well as Ireland).

Each fourth dimension the household unit of measurement seeks to go to the U.K. for curt visits, they direct maintain to obtain a ‘family visa’ for Mr. McCarthy’s wife. This entails a trip inside Kingdom of Spain from their residence inward Marbella to the British consulate. Is this compatible amongst European Union law?

As regards curt visits, an number similar this ane volition largely arise alone for people travelling betwixt the Member U.S. of A. applying the Schengen rules (22 Member States, summation 4 non-EU associates) as well as the Member U.S. of A. non applying those rules (the UK, Ireland, Romania, Bulgaria, Republic of Cyprus as well as Croatia). That’s because legal third-country national residents of the Schengen U.S. of A. don’t demand visas to see other Schengen States, whether they are household unit of measurement members of an European Union citizen (or travelling amongst that European Union citizen) or not. In whatsoever case, they aren’t checked when they cross the borders betwixt those States.

However, the U.K. as well as Republic of Ireland direct maintain negotiated a special protocol relating to edge controls amongst the residue of the EU. They tin banking company gibe people at the borders to create upward one's withdraw heed whether they are really entitled to teach into the Earth inward accordance amongst European Union law. The other 4 non-Schengen U.S. of A. are obliged to bring together Schengen eventually, as well as must apply aspects of the Schengen rules inward the meantime.

So is Mr. McCarthy’s married adult woman entitled to teach into the U.K. amongst him, as well as what rules apply when she seeks to create so? The starting betoken is the EU’s citizens’ Directive, adopted inward 2004, which (among other things) intended to facilitate go as well as residence for just this category of persons. The third-country national household unit of measurement members of European Union citizens resident inward other Member U.S. of A. (like Mrs. McCarthy) direct maintain to go given a ‘residence card’ to seek out their status. If they direct maintain such a bill of fare – as well as Mrs. McCarthy does – they tin go to other Member U.S. of A. without having to obtain a visa, fifty-fifty if (for instance, if they are Colombians visiting the UK) they would commonly direct maintain to create so.

This plant both ways: for instance, if a French adult woman living inward the U.K. wished to see Federal Republic of Federal Republic of Germany amongst her Nigerian wife, Federal Republic of Federal Republic of Germany could non insist that the third-country national husband obtain a Schengen visa, if the latter adult woman held a residence card.

In low-cal of this legal background, what is the problem? There is clearly no possibility for the U.K. to require a ‘family visa’ for these trips. In fact, 3 issues arise inward this case: the applicability of European Union complimentary displace law; the possibility of measures to command ‘abuse’ of European Union constabulary rights; as well as the interpretation of the borders protocol.  

Scope of European Union constabulary

At commencement sight, the McCarthy family’s position falls squarely inside the compass of European Union law, every bit he is a British & Irish Gaelic citizen living inward Kingdom of Spain amongst his family. But the illustration does non line of piece of job organization his position inward Spain, but his visits to the UK, where he is a citizen.

The Advocate-General refers to recent CJEU illustration constabulary (the S as well as O judgment) applying the citizens Directive by analogy to cases where a citizen of ane Member State moves to closed to other Member State, as well as thus seeks to provide amongst his or her household unit of measurement to that commencement Member State. In his view, it is unsatisfactory to translate European Union master copy constabulary (the Treaty complimentary displace rules) inward accordance amongst secondary constabulary which does non apply to that specific case. So he argues that the citizens’ Directive as such should apply to such cases, or at to the lowest degree to short-term visits every bit distinct from longer-term residence. 

Abuse of European Union rights

Article 35 of the citizens’ Directive allows for measures to go taken to command abuse of complimentary displace rights. The U.K. doesn’t claim that anyone inward the McCarthy household unit of measurement is abusing those rights. But of course of pedagogy the ‘family visa’ requirement wasn’t adopted specifically for them, but for all third-country national household unit of measurement members of European Union citizens who direct maintain moved betwixt Member States, as well as who seek to see the U.K. on the footing of a residence card.

The U.K. argues that the ‘family visa’ dominion is justified because checks past times the U.K. Border Agency found that a meaning number of those belongings residence cards were non truly entitled to them (it exempts from the dominion those whose residence cards were issued inward a to a greater extent than secure form). However, inward the Advocate-General’s view, a mensurate taken against the abuse of rights tin alone line of piece of job organization private cases, non all cases.

Border command powers

Finally, the sentiment argues that the U.K. cannot justify its position past times reference to the borders protocol. It allows the U.K. to banking company gibe at its borders if people direct maintain rights nether European Union law, but non to breach European Union complimentary displace constabulary every bit regards the position of those who indeed relish such rights.

Comments

On the questions really asked past times the national courtroom (on abuse of rights as well as the borders protocol), the sentiment is clearly correct. As regards abuse of rights, the limitation of this regulation to private cases is clearly established inward prior CJEU illustration law. Indeed, the facts of this illustration exhibit why the regulation should go limited inward that way, every bit the U.K. is seeking to create just what the Directive prohibits: to impose a visa requirement upon third-country national household unit of measurement members belongings residence cards.

As regards the borders protocol, it is clearly as well as expressly subordinate to European Union complimentary displace law. The approach suggested inward the sentiment would go out the U.K. complimentary to banking company gibe that everyone seeking to teach into the Earth pursuant to European Union complimentary displace constabulary was entitled to create so, without restricting the complimentary displace rights of those persons whatsoever further.

Undoubtedly, though, the bear witness suggests that closed to individuals amongst residence cards are non entitled to direct maintain them. This is a legitimate line of piece of job organization of the U.K. government, but its reply was only disproportionate. So the sentiment should direct maintain referred inward to a greater extent than special to other methods of dealing amongst this issue, for illustration a articulation understanding betwixt Member U.S. of A. on mutual standards to ensure the authenticity of residence cards.

Finally, what well-nigh the compass of the Directive, an number alone raised past times the CJEU itself? On this point, amongst bully respect, the Advocate-General has led himself downwards something of a garden path. The primal flaw inward his reasoning is his implicit supposition that the European Union citizens’ Directive tin never apply to a citizen of the host Member State who is also a citizen of closed to other Member State. On the ane hand, it is right (based on the illustration law, as well as the clear wording of the Directive) to tell that British citizens, similar Mr. McCarthy, cannot invoke the Directive against the UK. But on the other hand, Irish citizens, similar Mr. McCarthy, sure enough can. Like Schrodinger’s cat, he is simultaneously covered past times the Directive, as well as non covered past times it.

Back inward 2011, inward a illustration involving a different dual British as well as Irish Gaelic citizen named McCarthy, the CJEU ruled that the Directive could non apply. But inward that case, the McCarthy inward inquiry had never resided exterior the UK. As I direct maintain argued (along amongst Jonathan Tomkin as well as Elspeth Guild), inward the Commentary on the European Union citizens’ Directive, that judgment should alone apply where a dual citizen of 2 Member U.S. of A. has ever resided inward ane of them, which is hardly the province of affairs when the somebody concerned inward fact lives inward a third Member State. More broadly, nosotros scrap that the 2011 McCarthy judgment is contradictory as well as confused, as well as should go laid aside at the earliest opportunity. It is a bully shame that the sentiment does non seize the chance either to telephone telephone for overturning the judgment or for limiting its scope, but rather assumes that its compass is really wide indeed.

Having opened Pandora’s Box past times disceptation implicitly that no dual citizens of 2 Member U.S. of A. tin ever rely on the citizens’ Directive, the Advocate-General forthwith tries to closed it again, past times calling upon the Court to contrary the dominion which he has himself created. But it would go ameliorate non to create that dominion inward the commencement place. One cannot seriously scrap that the 2014 McCarthy, a pensioner who has spent alone v years of his life inward the UK, should go inward the same legal position every bit regards the U.K. every bit the 2011 McCarthy, who had never resided exterior the country.

Leaving aside the position of dual citizens, the Advocate-General’s sentiment would too e relevant to the citizen of one Member State who seeks to see his or her ain country. Since CJEU illustration constabulary has already confirmed that European Union complimentary displace constabulary applies to those who provide to their ain Earth to reside there, it must too apply to those who provide alone to visit.

But does the European Union citizens’ Directive apply as such (as the sentiment argues) or by analogy (as the CJEU illustration constabulary says)? Really, this is a distinction without a difference, every bit the outcome would go the same whichever route is chosen. Either way, the Court would go giving resultant to the spirit of the complimentary displace rules. It is unfortunate that the Advocate-General chose to chase this semantic butterfly, piece leaving the front end door opened upward to the deterioration of the legal position of those who are dual citizens of 2 Member States. 


Barnard & Peers: chapter 13, chapter 26

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