Kaur & Ors v Secretary of State for the Home Department

The Council Directive 2004/38/EC does not directly confer on a third-country family member a right to reside in the Union citizen’s home state. Article 5 governs the documents and visa formalities applicable to a person who already has a right of entry. It creates no free-standing right of entry or residence.

A derived right may arise under article 21(1) TFEU when the Directive is applied by analogy. This requires sufficiently genuine residence with the Union citizen in another member state which created or strengthened family life. Possession of an article 10 residence card is declaratory, not constitutive, and does not establish that substantive right.

An Indian national and her two children joined her British husband in Bulgaria while he worked there. After 19 days, the family travelled to the United Kingdom using Bulgarian residence permits. The First-tier Tribunal found that their Bulgarian residence was not genuine, had not created or strengthened family life, and was intended to circumvent domestic immigration law. Nevertheless, it held that the residence permits entitled them to admission under regulation 11 of the Immigration (European Economic Area) Regulations 2016.

The Upper Tribunal allowed the Secretary of State’s appeal. It held that regulation 11 did not apply because the British sponsor was excluded from the definition of an EEA national, and that McCarthy (No 2) did not establish a substantive right of entry. The family appealed, contending that article 5 of Council Directive 2004/38/EC conferred a free-standing right of entry.

1. Appeal dismissed. Regulation 9 of the Immigration (European Economic Area) Regulations 2016 did not apply. The unchallenged findings established that the family’s residence with the British citizen in Bulgaria was not genuine. The regulation was also disapplied because the purpose of that residence was to circumvent United Kingdom immigration law. Regulation 11 could not assist because regulation 2(1) excludes a British citizen from the definition of an EEA national. Conforming interpretation could not justify ignoring that express definition.

2. Articles 6 and 7 of Council Directive 2004/38/EC govern residence by Union citizens and their family members in a member state other than the citizen’s home state. They therefore conferred no right on the appellants to reside in the United Kingdom.

3. Article 5 did not confer a substantive or free-standing right of entry. McCarthy (No 2), Case C-202/13 [2015] QB 651, concerned the documentary and visa formalities governing the exercise of an existing right. Entry and residence are inextricably linked, and construing article 5 as creating an unqualified right would contradict the residence scheme in articles 6 and 7. The analysis of Lang J in Benjamin v Secretary of State for the Home Department [2016] EWHC 1626 (Admin) accorded with that conclusion.

4. Article 21(1) TFEU may require the Directive to be applied by analogy when refusal of a derived right would deter a Union citizen from exercising free movement. Under O v Minister voor Immigratie, Integratie en Asiel, Case C-456/12 [2014] QB 1163, this requires sufficiently genuine residence in the host state which enabled the creation or strengthening of family life. A residence card is declaratory rather than constitutive. The unchallenged findings therefore excluded any derived right.

5. The United Kingdom was entitled to investigate whether a substantive right of entry existed notwithstanding the Bulgarian permits. McCarthy (No 2) neither overruled nor undermined O. As the appeal failed on those grounds, it was unnecessary to determine the respondent’s alternative case concerning abuse of rights under article 35.

1. Court of Appeal (Civil Division): Dismissed the appellants’ appeal and affirmed the Upper Tribunal’s conclusion in [2020] EWCA Civ 98.
2. Upper Tribunal (Immigration and Asylum Chamber): Allowed the Secretary of State’s appeal. It held that regulation 11 of the Immigration (European Economic Area) Regulations 2016 did not apply to the family members of the British sponsor and that McCarthy (No 2) concerned documentary requirements rather than a substantive right of entry.
3. First-tier Tribunal: Allowed the family’s appeal because they possessed valid Bulgarian residence permits, despite finding that their Bulgarian residence was not genuine, had not created or strengthened family life, and was intended to circumvent immigration law.