Ms McCarthy, a national of the United Kingdom, was also a national of Ireland. She was born in the United Kingdom and had always resided there, without ever having exercised her right to move and reside freely within the territory of other EU Member States. Following her marriage to a Jamaican national, Ms McCarthy obtained an Irish passport and applied to the British authorities for a residence permit as an Irish national wishing to reside in the United Kingdom under European Union law. Her husband applied for a residence document as the spouse of a Union citizen.
These applications were refused on the ground that Ms McCarthy could not base her residence on Union law or invoke Union law to regularise the residence of her spouse because she had never exercised her right to move and reside in Member States other than the United Kingdom. Ms McCarthy challenged this decision, and her case eventually reached the Supreme Court of the United Kingdom. Acting pursuant to Article 234 EC, the Supreme Court asked the Court of Justice of the European Union whether Ms McCarthy could invoke Article 21 TFEU and the rules of Union law designed to facilitate the movement of persons within the territory of the Member States as set down in Directive 2004/38/EC.
The Court of Justice found that that the Directive did not apply to Ms McCarthy because she had never exercised her right to freedom of movement and because she 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 the Directive.
The Court also found that Article 21 TFEU – which guarantees to 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, provided that the situation of that citizen did not include 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.
The Court noted that the failure by the British authorities to take Ms McCarthy’s Irish nationality into account for the purposes of granting her a right of residence in the United Kingdom did not affect her right to remain in the United Kingdom as a British national or to move and reside freely within the territory of the Member States as a Union citizen. The Court also noted that the Secretary of State’s decision did not have the effect of depriving her of the genuine enjoyment of the substance of the other rights associated with her status as a Union citizen. This situation was contrasted with that arising in the case of Ruiz Zambrano in which the national measure at issue had the effect of depriving the Union citizen children of the genuine enjoyment of the substance of the rights conferred on them by virtue of their status as Union citizens.
For these reasons, the Court of Justice ruled that Ms McCarthy’s situation had no connection with Union law and was covered exclusively by British law. The Court found that Ms McCarthy was not entitled to base her residence in the United Kingdom on rights associated with Union citizenship.
