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ECJ finds that EU citizens, who have never exercised their right of free movement, cannot invoke Union citizenship to regularise the residence of their non-EU spouse

Date Published: 09-05-2011

Ms McCarthy - a dual UK and Irish national who was born in the UK and had always been resident there - sought to rely on her Irish nationality and EU law to obtain a residence card for herself and her Jamaican husband. The UK Supreme Court asked the Court of Justice of the EU whether Ms McCarthy could invoke the EU law rules designed to facilitate the movement of persons within the territory of the Member States. The Court of Justice found that that the rules did not apply to Ms McCarthy as she had never exercised her right to freedom of movement and had always resided in a Member State of which she was a national.

With regard to Ms McCarthy’s husband, the Court found that as he was not the spouse of a national of a Member State who had exercised her right to freedom of movement, he could not benefit from the rights conferred by EU law.

The Court also found that Article 21 TFEU, which guarantees every citizen of the Union the right to move and reside freely within the territory of the Member States, was not applicable to a Union citizen who had never exercised her right of free movement, who had always resided in a Member State of which she was a national and who was also a national of another Member State, unless the situation of that person included the application of measures by a Member State that would have the effect of depriving her of the genuine enjoyment of the substance of the rights conferred by virtue of her status as a Union citizen or of impeding the exercise of her right of free movement and residence within the territory of the Member States.

For more information:

See Case C-434/09 McCarthy v Secretary of State for the Home Department

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