McCarthy & Ors, R (On the Application of) v Secretary of State for the Home Department

The Frontiers Protocol permits the United Kingdom to impose documentary and legal controls at its borders to verify the entitlement of non-EEA family members to enter, including requirements which have practical effect before arrival. Article 35 of the Citizens Directive also permits necessary, proportionate and prospective measures addressing systemic abuse or fraud, not merely measures directed at identified individuals. A requirement that holders of residence cards issued by other Member States obtain an EEA family permit may therefore be lawful where justified by reasonable evidence of systemic risk. The court must nevertheless refer questions of EU-law construction where it cannot determine them with complete confidence or conclude that contrary arguments could not succeed on any conventional basis of reasoning.

A family resident in Spain sought judicial review of the United Kingdom’s refusal to treat the second claimant’s Spanish residence card, issued under Article 10 of the Citizens Directive, as exempting her from the requirement to obtain an EEA family permit before entering the United Kingdom. The claim challenged the implementation of Article 5(2), related guidance to border officials and carriers, and the reliance placed on the Frontiers Protocol and Article 35.

The Secretary of State relied on evidence of fraud, sham marriages, inconsistent residence-card standards and organised immigration abuse. Permission was agreed. The central questions were whether the United Kingdom’s approach was authorised by the Frontiers Protocol or Article 35 and, if so, whether it was proportionate and sufficiently clear for determination without a reference.

1. Frontiers Protocol. Article 1 of the Frontiers Protocol confers a broad discretion to exercise at the United Kingdom’s frontiers such controls as it considers necessary to verify the right of EU citizens and their dependants to enter. “Controls” are not confined to physical checks or examinations. They may include documentary and legal requirements which take practical effect before arrival, including an entry visa or family-permit requirement. Guidance to carriers was derivative of, and an administratively necessary means of enforcing, Regulation 11.
2. Article 5(2) of the Directive establishes an entry-visa requirement under national law and treats an Article 10 residence card as an exemption from that requirement. The residence card does not itself create the underlying right to enter. Requiring production of a family permit at the frontier therefore verified, rather than removed, the EU-law right of entry.
3. Article 35. Article 35 is expressed in broad terms and permits necessary measures to refuse, terminate or withdraw rights in cases of abuse or fraud. It is not limited to case-by-case measures, identified individuals or marriages of convenience. Systemic abuse may justify systemic and prospective measures, provided that they are proportionate and subject to the procedural safeguards in Articles 30 and 31. The contrast with the express individual-conduct limitation in Article 27 supported that construction.
4. Proportionality. The Secretary of State had a considerable margin in the field of immigration control. The evidence established reasonable and justified concerns about fraud, insecure and inconsistent residence cards, and organised abuse. The family-permit requirement was not manifestly wrong or inappropriate. Its inconvenience did not establish disproportionality. The position could change where another Member State’s cards met appropriate security and formal standards.
5. Reference. Despite the strength of the Secretary of State’s arguments, the questions of construction were not so clear that there was no real doubt, or that the contrary arguments could not succeed on any conventional basis of reasoning. The proceedings were stayed and the legality of the United Kingdom’s approach was referred to the CJEU.

This was a first-instance judicial review. Permission was agreed. The proceedings were stayed and a reference was ordered to the CJEU.