McCarthy v Secretary of State for the Home Department

For the permanent residence provisions of Directive 2004/38, a Union citizen has ‘resided legally’ only where the residence complies with the conditions imposed by Community law. Residence which is lawful solely under the domestic law of the citizen’s own Member State does not qualify.

A citizen residing in the Member State of which she is a national cannot obtain rights under the Directive merely by relying on a second Member State nationality. Physical movement between Member States is not invariably required, however. A person who otherwise falls within the Directive may qualify by residing in a host Member State without previously moving there.

The appellant was both a British and an Irish citizen and had lived in the United Kingdom throughout her life. She sought a permanent residence right under the Immigration (European Economic Area) Regulations 2006, principally so that her Jamaican husband could obtain a derivative right of residence.

The Asylum and Immigration Tribunal held that her residence as a British citizen was not residence under Community law and dismissed her appeal. The Court of Appeal granted permission to appeal and considered whether ‘resided legally’ in article 16(1) of Directive 2004/38 included residence lawful solely under domestic nationality law. A subsidiary issue was whether the Directive invariably required prior movement from one Member State to another.

1. The appeal was dismissed unanimously. Directive 2004/38 creates and regulates rights of movement and residence under Community law. The lawful residence contemplated by article 16(1) is residence complying with the conditions laid down by the Directive. It does not include residence which is lawful solely under the domestic law of the citizen’s own Member State.

2. Article 3(1), recital 17 and the repeated references to a ‘host Member State’ demonstrate that the Directive concerns rights enjoyed in a Member State other than the citizen’s Member State of nationality. A British citizen residing in the United Kingdom could not bypass the Directive’s requirements by relying upon Irish dual nationality. The appellant therefore acquired no permanent residence right under regulation 15 of the Immigration (European Economic Area) Regulations 2006.

3. Authorities concerning lawful residence for the purpose of protection against nationality discrimination did not assist in construing article 16. They arose in a different legal context and did not establish that any residence permitted by domestic law counted towards the Directive’s five-year qualifying period.

4. Lord Justice Pill stated, obiter, that he would not have rejected the claim merely because the appellant had never moved to the United Kingdom. If the United Kingdom could otherwise constitute her host Member State, articles 2(3) and 3(1), read with recital 1, would cover a Union citizen who had always resided there. The Tribunal’s view that the Directive invariably required movement from one country to another was therefore rejected.

5. Lady Justice Arden agreed and added that the travaux préparatoires of a Community directive can and should assist its interpretation. The domestic restrictions associated with Pepper v Hart [1993] AC 593 do not govern the interpretation of Community legislation. Lord Justice Wilson agreed with both judgments.

1. Court of Appeal (Civil Division): Permission to appeal was granted, but the appeal was dismissed unanimously: [2008] EWCA Civ 641.
2. Asylum and Immigration Tribunal: On reconsideration, the Tribunal identified an error of law in its earlier decision but substituted a determination dismissing the appeal on all grounds.
3. High Court: Black J had ordered reconsideration of the appellant’s earlier unsuccessful Tribunal appeal.