Case C‑202/13

The Queen, on the application of Sean Ambrose McCarthy and Others

v

Secretary of State for the Home Department

(Request for a preliminary ruling from the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court))

‛Citizenship of the European Union — Directive 2004/38/EC — Right of citizens of the Union and their family members to move and reside freely within the territory of a Member State — Right of entry — Third-country national who is a family member of a Union citizen and in possession of a residence card issued by a Member State — National legislation requiring an entry permit to be obtained prior to entry into national territory — Article 35 of Directive 2004/38/EC — Article 1 of the Protocol (No 20) on the application of certain aspects of Article 26 of the Treaty on the Functioning of the European Union to the United Kingdom and to Ireland’

Summary — Judgment of the Court (Grand Chamber), 18 December 2014

Citizenship of the Union — Right to move and reside freely in the territory of the Member States — Directive 2004/38 — Beneficiaries — Family members of a Union citizen who are third-country nationals — Condition — Exercise by the Union citizen of his right of freedom of movement (European Parliament and Council Directive 2004/38, Art. 3(1)) Citizenship of the Union — Right to move and reside freely in the territory of the Member States — Directive 2004/38 — Right of entry and residence of third-country nationals who are family members of a Union citizen — Limitation of the right of entry to Member States other than the Member State of origin of the Union citizen — No such limitation (European Parliament and Council Directive 2004/38, Arts 5 and 10) Citizenship of the Union — Right to move and reside freely in the territory of the Member States — Directive 2004/38 and Protocol No 20 on the application of certain aspects of Article 26 TFEU to the United Kingdom and to Ireland — Right of entry and residence of third-country nationals who are family members of the Union citizen — Abuse of rights or fraud — Possession by those nationals of a valid residence card issued by another Member State — National legislation under which, in pursuit of an objective of general prevention, those nationals are required to obtain an entry permit before they enter national territory — Not permissible (Protocol No 20 annexed to the EU and FEU Treaties; European Parliament and Council Directive 2004/38, Arts 10 and 35) EU law — Principles — Prohibition of the abuse of rights

See the text of the decision. (see paras 33-38) The provisions concerning the right of entry that are laid down in Article 5 of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States refer to ‘Member States’ and do not draw a distinction on the basis of the Member State of entry, in particular in so far as they provide that possession of a valid residence card as referred to in Article 10 of the directive is to exempt family members of a Union citizen who are not nationals of a Member State from the requirement to obtain an entry visa. Thus, there is nothing at all in Article 5 indicating that the right of entry of family members of the Union citizen who are not nationals of a Member State is limited to Member States other than the Member State of origin of the Union citizen. (see para. 41) Both Article 35 of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States and Article 1 of Protocol No 20 on the application of certain aspects of Article 26 of the Treaty on the Functioning of the European Union to the United Kingdom and to Ireland must be interpreted as not permitting a Member State to require, in pursuit of an objective of general prevention, family members of a citizen of the European Union who are not nationals of a Member State and who hold a valid residence card, issued under Article 10 of Directive 2004/38 by the authorities of another Member State, to be in possession, pursuant to national law, of an entry permit, such as the European Economic Area (EEA) family permit, in order to be able to enter its territory. First, measures adopted by the national authorities, on the basis of Article 35 of Directive 2004/38, in order to refuse, terminate or withdraw a right conferred by that directive must be based on an individual examination of the particular case. Measures pursuing an objective of general prevention of abuse of rights or fraud would, being automatic in nature, allow Member States to leave the provisions of Directive 2004/38 unapplied and would disregard the very substance of the primary and individual right of Union citizens to move and reside freely within the territory of the Member States and of the derived rights enjoyed by those citizens’ family members who are not nationals of a Member State. Second, Article 1 of Protocol No 20 is intended to authorise the United Kingdom to verify whether a person seeking to enter its territory in fact fulfils the conditions for entry, including those provided for by EU law. On the other hand, it does not permit the United Kingdom to determine the conditions for entry of persons who have a right of entry under EU law and, in particular, to impose upon them extra conditions for entry or conditions other than those provided for by EU law. (see paras 52, 56-58, 64, 66, operative part) See the text of the decision. (see para. 54)

Case C‑202/13

The Queen, on the application of Sean Ambrose McCarthy and Others

v

Secretary of State for the Home Department

(Request for a preliminary ruling from the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court))

‛Citizenship of the European Union — Directive 2004/38/EC — Right of citizens of the Union and their family members to move and reside freely within the territory of a Member State — Right of entry — Third-country national who is a family member of a Union citizen and in possession of a residence card issued by a Member State — National legislation requiring an entry permit to be obtained prior to entry into national territory — Article 35 of Directive 2004/38/EC — Article 1 of the Protocol (No 20) on the application of certain aspects of Article 26 of the Treaty on the Functioning of the European Union to the United Kingdom and to Ireland’

Summary — Judgment of the Court (Grand Chamber), 18 December 2014

Citizenship of the Union — Right to move and reside freely in the territory of the Member States — Directive 2004/38 — Beneficiaries — Family members of a Union citizen who are third-country nationals — Condition — Exercise by the Union citizen of his right of freedom of movement (European Parliament and Council Directive 2004/38, Art. 3(1)) Citizenship of the Union — Right to move and reside freely in the territory of the Member States — Directive 2004/38 — Right of entry and residence of third-country nationals who are family members of a Union citizen — Limitation of the right of entry to Member States other than the Member State of origin of the Union citizen — No such limitation (European Parliament and Council Directive 2004/38, Arts 5 and 10) Citizenship of the Union — Right to move and reside freely in the territory of the Member States — Directive 2004/38 and Protocol No 20 on the application of certain aspects of Article 26 TFEU to the United Kingdom and to Ireland — Right of entry and residence of third-country nationals who are family members of the Union citizen — Abuse of rights or fraud — Possession by those nationals of a valid residence card issued by another Member State — National legislation under which, in pursuit of an objective of general prevention, those nationals are required to obtain an entry permit before they enter national territory — Not permissible (Protocol No 20 annexed to the EU and FEU Treaties; European Parliament and Council Directive 2004/38, Arts 10 and 35) EU law — Principles — Prohibition of the abuse of rights