OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 25 November 2010 ( )

Case C‑434/09

Shirley McCarthy

v

Secretary of State for the Home Department

(Reference for a preliminary ruling from the Supreme Court (United Kingdom))

(Citizenship of the Union – Right of Union citizens to move and reside freely within the territory of the Member States – Dual nationality – Article 21 TFEU – Directive 2004/38/EC – Beneficiary – Legal residence – Family unification – Discrimination against one’s own nationals)

I – Introduction

1. Can a person who is a national of two Member States of the European Union but has always lived in only one of those two States rely upon European Union law (‘EU law’) against that State in order to obtain there a right of residence for him or herself and in particular for his or her spouse? That is, in essence, the question that the Court is called upon to decide in the present case.

2. Mrs McCarthy is a British and Irish national but has only ever lived in England. ( ) She herself can naturally reside in England. That is not true, however, of her husband, a Jamaican national: under the United Kingdom’s domestic provisions on immigration, he has no right to reside in England. In order to enable her husband and herself to live together, Mrs McCarthy is now seeking, on the basis of her Irish nationality and as a Union citizen, to obtain for herself a right to reside in England; this would indirectly also benefit her husband, who could then, by virtue of EU law, claim a derived right of residence.

3. In this context, the Court will have to determine how the concept of ‘beneficiary’ in Directive 2004/38/EC on residence ( ) is to be understood. In addition, the Court is asked what requirements are to be placed on ‘legal residence’, which is the basic precondition for acquiring a right of permanent residence within the meaning of that directive.

II – Legal framework

4. The framework for this case in EU law is provided by Article 21 TFEU and Directive 2004/38. The directive’s scope ratione personae is defined in Chapter I (‘General provisions’) – to be more precise, in Article 3 under the heading ‘Beneficiaries’ – as follows:

‘1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

…’

5. In Chapter IV of Directive 2004/38, Article 16 sets out general rules on acquisition of the right of permanent residence:

‘1. Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. …

…’

6. Recital 17 in the preamble to Directive 2004/38, which complements Article 16, should be noted:

‘Enjoyment of permanent residence by Union citizens who have chosen to settle long term in the host Member State would strengthen the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union. A right of permanent residence should therefore be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in this Directive during a continuous period of five years without becoming subject to an expulsion measure.’

7. Lastly, attention should be drawn, among the final provisions in Chapter VII of Directive 2004/38, to Article 37, which states as follows under the heading ‘More favourable national provisions’:

‘The provisions of this Directive shall not affect any laws, regulations or administrative provisions laid down by a Member State which would be more favourable to the persons covered by this Directive.’

III – Facts and main proceedings

8. Shirley McCarthy is a British citizen by virtue of her birth in the United Kingdom. She has always lived in England and her residence there has, throughout, been lawful under domestic law.

9. Mrs McCarthy is in receipt of State benefits in England. She does not argue that she is or has been a worker, a self-employed person or economically self-sufficient for the purposes of EU law.

10. On 15 November 2002 Mrs McCarthy married a Jamaican national, George McCarthy. Mr McCarthy lacks leave to remain in the United Kingdom under its Immigration Rules, even as the spouse of a person settled there. ( )

11. Mrs McCarthy has not only British but also Irish nationality. Following her marriage she applied – for the first time ever – for an Irish passport. Her application succeeded on the basis that her mother had been born in Ireland.

12. On 23 July 2004 Mrs McCarthy applied to the Secretary of State for the Home Department ( ) for residence documents under EU law as a Union citizen. Mr McCarthy made a corresponding application as spouse of that Union citizen. Both applications were refused by decision of 6 December 2004. The grounds given were that Mrs McCarthy was not a person meeting the statutory requirements (‘a qualified person’ – essentially, a worker, self-employed person or self-sufficient person). Nor, accordingly, could Mr McCarthy be considered to be the spouse of a qualified person.

13. On 13 December 2004 Mrs McCarthy appealed against the decision of 6 December 2004 refusing her application. On 7 September 2006 her appeal was referred to the Asylum and Immigration Tribunal. ( )

14. Whilst Mr McCarthy did not appeal against the refusal of 6 December 2004 in his regard, he did, however, make a further application for a residence card as the spouse of Mrs McCarthy on 16 October 2006. This second application was also refused, by a decision of 20 April 2007, against which Mr McCarthy appealed to the Asylum and Immigration Tribunal on 4 May 2007.

15. The Asylum and Immigration Tribunal adjourned Mr McCarthy’s appeal to await the final outcome of Mrs McCarthy’s appeal.

16. On 17 October 2006 a single judge of the Asylum and Immigration Tribunal dismissed Mrs McCarthy’s appeal. However, on 13 February 2007 the High Court of Justice of England and Wales ordered the Tribunal to reconsider Mrs McCarthy’s appeal. The appeal was therefore the subject of reconsideration by the Tribunal on 16 August 2007, but the Tribunal upheld the decision to dismiss it. Mrs McCarthy’s subsequent appeal to the Court of Appeal of England and Wales (Civil Division) ( ) was also unsuccessful, being dismissed on 11 June 2008.

17. Following a further appeal by Mrs McCarthy, the case is now pending before the Supreme Court of the United Kingdom (formerly the House of Lords), the referring court. ( )

IV – Reference for a preliminary ruling and procedure before the Court of Justice

18. By letter of 2 November 2009, received at the Court on 5 November 2009, the referring court submitted the following questions to the Court of Justice for a preliminary ruling: ( )

(1) Is a person of dual Irish and United Kingdom nationality who has resided in the United Kingdom for her entire life a ‘beneficiary’ within the meaning of Article 3 of Directive 2004/38/EC?

(2) Has such a person ‘resided legally’ within the host Member State for the purpose of Article 16 of Directive 2004/38 in circumstances where she was unable to satisfy the requirements of Article 7 of that directive?

19. Mrs McCarthy, Denmark, Ireland, Estonia, the Netherlands, the United Kingdom and the European Commission submitted written observations in the proceedings before the Court. Mrs McCarthy, Denmark, Ireland and the Commission took part in the hearing on 28 October 2010.

V – Assessment

20. It may at first sight seem strange that a Union citizen is relying upon EU law against the authorities of her home Member State in order to obtain a right of residence there, since there is no doubt that, by virtue of her nationality, that Union citizen already has in the State of which she is a national a right of residence that cannot be restricted. ( )

21. On closer examination, however, the present case involves not so much Mrs McCarthy’s right to live in England herself as the right of residence obtained through her that may be enjoyed by her husband, who is a national of a non-member country. The case therefore ultimately concerns family unification which is intended to be achieved circuitously via EU law because domestic law in the United Kingdom does not permit it. ( ) This was also alluded to repeatedly at the hearing before the Court.

22. It is nevertheless open to question whether EU law can apply rationemateriae to the present case since Mrs McCarthy has never exercised her right of free movement as resulting from Article 21(1) TFEU, Article 45 TFEU, Article 49 TFEU and Article 56 TFEU ( ) and reaffirmed in Articles 15(2) and 45(1) of the Charter of Fundamental Rights of the European Union. ( ) The only possible connecting factor with EU law here is Mrs McCarthy’s status as a person with dual nationality, since she is not only a British but also an Irish national.

23. Whilst Mrs McCarthy contends that her dual nationality suffices as a connecting factor with EU law, all the governments that have participated in the proceedings and the Commission are of the opposite view.

A – Concept of ‘beneficiary’ within the meaning of Directive 2004/38 (the first question referred)

24. By its first question, the referring court seeks guidance on the interpretation of the concept of ‘beneficiary’ within the meaning of Article 3 of Directive 2004/38. The issue requiring discussion is essentially whether a person who is a national of two Member States of the European Union but has always lived in only one of those two States can rely upon Directive 2004/38 against that State in order to obtain in its territory a right of residence for him or herself and indirectly also for his or her spouse.

25. On the basis of the wording of Article 3(1) of Directive 2004/38 this question is to be answered in the negative. According to that provision, all Union citizens who move to or reside in a Member State other than that of which they are a national are beneficiaries within the meaning of the directive. It can be inferred a contrario from Article 3(1) that Directive 2004/38 does not apply to the relationship of Union citizens with the Member State of which they are a national and in which they have always resided.

26. This interpretation is confirmed when the legislative context of Article 3(1) of Directive 2004/38 is looked at and the directive’s objective is taken into account.

27. The aim of Directive 2004/38 is to facilitate free movement within the territory of the Member States for Union citizens. Accordingly, the directive often refers to free movement and residence in the same breath; ( ) the directive is designed ‘to simplify and strengthen the right of free movement and residence of all Union citizens’. ( )

28. As regards the legislative context of Article 3(1), it is to be noted that numerous provisions of Directive 2004/38 refer to a Union citizen’s entry or arrival, ( ) to his residence ‘on the territory of another Member State’ ( ) or to the ‘host Member State’. ( ) The host Member State for the purposes of the directive is ‘the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence’. ( ) As all these provisions show, Directive 2004/38 governs the legal position of a Union citizen in a Member State in which he resides – perhaps since birth ( ) – in exercise of his right of free movement and of which he is not a national.

29. This, of course, does not prevent Directive 2004/38 from also being applicable vis-à-vis the home country of a Union citizen if there is a connection with EU law. It is thus settled case-law that a Union citizen who has exercised his right of free movement and wants to return to his home Member State can rely upon EU law against that State. ( ) The same applies, moreover, where a Union citizen wants to leave his home Member State in order to move to another Member State in exercise of the rights of free movement in EU law. ( )

30. A Union citizen like Mrs McCarthy, who has always resided in a Member State of which she is a national and has also never exercised her right of free movement guaranteed by EU law, does not fall within the scope of Directive 2004/38, either according to the wording of Article 3(1) or according to the objective and the legislative context of that provision. The same is true of members of Mrs McCarthy’s family, ( ) since their rights of entry and residence – as well as, more generally, the possibility of family unification – are not founded on an autonomous right of free movement, but are derived from the right of free movement of the Union citizen and serve to give effect to that right. ( )

31. The right of free movement of Union citizens which is enshrined in primary law (Article 21(1) TFEU and Article 45(1) of the Charter of Fundamental Rights) does not alter this in my view. It is true that provisions of secondary law are to be interpreted and applied consistently with primary law, for example the fundamental freedoms in the Treaty. ( ) I consider, however, that Directive 2004/38 is consistent with the requirements of primary law. In particular, I am not of the view that Union citizens can derive from Article 21(1) TFEU a right of residence vis-à-vis the Member State of which they are a national even where – as in the case of Mrs McCarthy – there is no cross-border element . ( )

32. It remains to be examined whether the outcome reached so far can be altered in any way by the fact that Mrs McCarthy is a national of two Member States of the European Union – a British national and an Irish national.

33. In this regard, it should be pointed out first of all that Union citizens in Mrs McCarthy’s position cannot be prevented from relying upon their second nationality – here Irish nationality – from the outset by simply stating that that nationality is not real and effective. It is true that in the present case everything points to Mrs McCarthy’s British nationality being the one that is far more real and effective, as she has always lived in England and applied for her Irish passport solely in the run-up to her request for a residence permit under EU law. As the Court has emphasised, however, within the European Union ‘it is not permissible for a Member State to restrict the effects of the grant of the nationality of another Member State by imposing an additional condition for recognition of that nationality with a view to the exercise of the fundamental freedoms provided for in the Treaty’. ( ) Under the case-law, the existence of dual nationality can therefore in principle be entirely relevant when assessing the legal position of Union citizens vis-à-vis their Member States of origin. ( )

34. Thus, the dual nationality of a Union citizen can make it necessary, when determining his name, to depart from the domestic rules in one of his Member States of origin governing a person’s name. ( ) A person’s name is an essential element of his identity. Every Union citizen must therefore be able to count on the name which he lawfully goes under in one Member State being recognised in all other Member States. ( ) Should doubts arise as to the identity of a Union citizen because his name is different or is written differently from one Member State to another, he might suffer serious inconvenience at a private or a professional level. ( )

35. The position that may obtain in relation to fields such as that of the rules governing a person’s name cannot, however, necessarily be transposed to the right of residence at issue here and the related possibility of family unification. Rather, the issue is whether, in this context too, the position of Union citizens differs, in view of their dual nationality, in a legally relevant way from the situation of other Union citizens who are nationals of the host Member State only.

36. The elements which characterise situations, and their comparability, must in particular be determined and assessed in the light of the subject-matter and purpose of the legislation which makes the distinction in question. The principles and objectives of the field to which the legislation relates must also be taken into account. ( )

37. The right at issue here, namely the right of residence of Union citizens, for themselves and their family members, serves to facilitate free movement of Union citizens within the territory of the Member States. ( ) In this connection, no particular factors arise from the dual nationality of a Union citizen in Mrs McCarthy’s position. From the point of view of the law on residence, she is in the same situation as all other British nationals who have always lived in England and never left their country of origin: she does not exercise her right of free movement. ( )

38. Union citizens such as Mrs McCarthy neither suffer prejudice to their right of free movement ( ) nor are discriminated against compared with other British nationals who are in a comparable situation. The mere fact that she has not only British but also Irish nationality does not make it necessary to apply to her and her family members the EU law provisions on the right of entry and of residence.

39. Admittedly, the situation can arise in this way that Union citizens who have made use of their right of free movement may – by virtue of EU law – rely on, for their family members originating from non-member countries, more generous rules on the right of entry and of residence than nationals of the host Member State who have always resided in its territory. ( ) Generally this problem is referred to as discrimination against one’s own nationals or called reverse discrimination.

40. In accordance with settled case-law, however, EU law provides no means of dealing with this problem. Any difference in treatment between Union citizens as regards the entry and residence of their family members from non-member countries according to whether those Union citizens have previously exercised their right of freedom of movement does not fall within the scope of EU law. ( )

41. It is true that in the legal literature consideration is given from time to time to inferring a prohibition on discrimination against one’s own nationals from citizenship of the Union. ( ) Advocate General Sharpston too has recently adopted a position to this effect. ( ) However, as the Court has stated on a number of occasions, citizenship of the Union is not intended to extend the scope ratione materiae of EU law to internal situations which have no link with EU law. ( )

42. It cannot of course be ruled out that the Court will review its case-law when the occasion arises and be led from then on to derive a prohibition on discrimination against one’s own nationals from citizenship of the Union. Citizenship of the Union is after all destined to be ‘the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to receive the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for’. ( )

43. The present case nevertheless does not appear to me to provide the right context for detailed examination of the issue of discrimination against one’s own nationals. Here, a ‘static’ Union citizen such as Mrs McCarthy is not discriminated against at all compared with ‘mobile’ Union citizens: ( ) even if it were to be disregarded that Mrs McCarthy has not exercised her right of free movement, and she were in principle allowed to rely on the provisions of Directive 2004/38, she would nevertheless not fulfil the remaining conditions for the acquisition of longer-term rights of residence that are to be met by Union citizens.

44. Mrs McCarthy is not in work, nor does she have sufficient resources for herself and her family; she is not ‘economically self-sufficient’ but in receipt of State benefits in the United Kingdom. ( ) She therefore does not fulfil the substantive requirements which EU law imposes on Union citizens who want to reside for more than three months in the host Member State. ( ) Nor are there any indications that for an uninterrupted period of five years in the past Mrs McCarthy worked in the United Kingdom or had sufficient resources for herself and her family, which would be the basic precondition for acquisition of a right of permanent residence. ( ) Consequently, Mrs McCarthy would be unable, even as a ‘mobile’ Union citizen, to derive a right of residence from EU law.

45. Overall I remain, in the circumstances, of the view that the referring court’s first question should be answered in the negative. The answer should be to the effect that, where a Union citizen is a national of two Member States of the European Union but has always lived in only one of those two States, she cannot claim a right of residence under Directive 2004/38 in that State.

46. Were the Court in the present case none the less to consider further developing the status of Union citizen, ( ) I would consider it appropriate to reopen the oral procedure. The parties involved in the present proceedings have hitherto been given occasion to set out their arguments on this issue entirely in passing only, towards the end of the hearing. They should in my view still have the opportunity to deal with it in greater depth. Also, further Member States would then in all probability be prompted to present oral argument before the Court.

B – Concept of ‘legal residence’ for the purposes of Article 16(1) of Directive 2004/38 (the second question referred)

47. By its second question, the referring court seeks guidance on the concept of ‘legal residence’ for the purposes of Article 16(1) of Directive 2004/38. ( ) In essence, it needs to be decided whether this concept also covers residence of a Union citizen who has always lived only in the host Member State and whose right of residence there has resulted for the entire period of her residence solely from the fact that she is a national of that very State.

48. This question is dependent logically upon the first question. If, as proposed by me, the first question has already been answered in the negative, ( ) the Union citizen does not fall within the scope of Directive 2004/38 at all and the second question does not have to be answered. Accordingly, I discuss the second question below purely in the alternative.

49. The concept of legal residence, which Article 16(1) of Directive 2004/38 makes a precondition for acquisition of a right of permanent residence, is not defined more precisely in the directive.

50. Also, in the judgment delivered recently in Lassal, the Court in my view did not definitively resolve this problem, but merely made it clear that periods of residence ‘completed … in accordance with … earlier EU law instruments … must be taken into account’. ( ) This does not in any way preclude other periods of residence, completed solely under national law on foreign nationals, from also being taken into account.

51. It is true that the preamble to Directive 2004/38 indicates that legal residence means, above all, residence ‘in compliance with the conditions laid down in this Directive’, that is to say, residence to which the person concerned was entitled by virtue of EU law. ( ) However, having regard to the context and objectives of Directive 2004/38, its provisions are not to be interpreted restrictively. ( )

52. In providing for the right of permanent residence pursuant to Article 16 of Directive 2004/38, the European Union legislature had the aim of ‘promoting social cohesion, which is one of the fundamental objectives of the Union’ ( ) and of creating a ‘genuine vehicle for integration into the society of the host Member State’. ( ) It is consistent with this objective for the group of persons entitled to permanent residence to be extended to those Union citizens whose residence entitlement in the host Member State results solely from the latter’s domestic law on foreign nationals ( ) since, when assessing the degree of integration of a Union citizen in the host Member State, it is of secondary importance where his right of residence originates from.

53. The fact that there can be instances where a right of residence results solely from the host Member State’s national law on foreign nationals is shown by Article 37 of Directive 2004/38, under which laws, regulations or administrative provisions laid down by a Member State which would be more favourable are expressly left unaffected. There are also clearly instances in the case-law where residence of Union citizens in the relevant host Member State could not be based on EU law, but only on domestic law on foreign nationals. ( ) The Court has not in any way found such residence to be irrelevant, but on the contrary has linked conclusions under EU law to it. ( )

54. ‘Legal residence’ for the purposes of Article 16(1) of Directive 2004/38 can nevertheless only mean residence which is founded on legal provisions on foreign nationals and not, by contrast, residence which is legal merely because the person concerned is a national of the host Member State. As already stated, ( ) Directive 2004/38 serves to give effect to and facilitate the right of free movement of Union citizens. It is not intended to promote for example integration into the society of the host Member State of nationals of that State who have never exercised their right of free movement.

55. Fundamental qualitative differences exist between a right of residence which results from law on foreign nationals and a right of residence which results from the nationality of the person concerned in the host Member State. Whilst under principles of international law the Member States cannot in any way restrict the right of residence of their own nationals, ( ) they are entitled to permit residence of foreign nationals on their national territory subject to certain conditions only. This also applies to residence of Union citizens from other Member States, although the limits imposed by EU law are to be observed. ( )

56. If a Union citizen in Mrs McCarthy’s position, who has never exercised her right of free movement, were to be allowed to rely on Directive 2004/38, that would ultimately result in ‘cherry-picking’: ( ) the Union citizen could then enjoy the advantages of Directive 2004/38 as regards family unification in respect of her spouse without meeting the objectives of the directive – namely to give effect to and facilitate free movement – and without being subject to any of the directive’s conditions, for example the requirement of economic self-sufficiency under Article 7(1) of the directive. As several of the governments which have participated in the proceedings have rightly pointed out, that does not accord with the spirit and purpose of the provisions of EU law on free movement and the right of residence.

57. The referring court’s second question would therefore have to be answered as follows:

Legality of residence, which under Article 16(1) of Directive 2004/38 is a precondition for acquisition of a right of permanent residence, can result from EU law or from the host Member State’s domestic law on foreign nationals.

If, however, a Union citizen is a national of the host Member State and if he has always resided there only on the basis of his nationality without exercising his right of free movement, ‘legal residence’ for the purposes of Article 16(1) of Directive 2004/38 is not involved.

C – Final remarks

58. Under the solution proposed by me, a Union citizen in Mrs McCarthy’s position cannot rely on EU law in order to obtain for him or herself and his or her family members a right of residence in the Member State in which that Union citizen has always lived and of which he or she is a national.

59. However, as the Court has already pointed out in Metock, ( ) all the Member States are parties to the ECHR. ( ) Even if no right of a foreign national to enter or to reside in a particular country is as such guaranteed by the ECHR, it can amount to interference with the right to respect for family life under Article 8(1) of the ECHR if a person is refused entry into or residence in a country where close members of his family are living. ( )

60. In those circumstances, it cannot be entirely ruled out that the United Kingdom might be obliged, by virtue of being a party to the ECHR, to grant Mr McCarthy a right of residence as the spouse of a British national living in England. This is not, however, a question of EU law, but only a question of the United Kingdom’s obligation under the ECHR, the assessment of which falls exclusively within the jurisdiction of the national courts and, as the case may be, the European Court of Human Rights.

VI – Conclusion

61. In light of the foregoing considerations, I suggest that the Court should answer the request for a preliminary ruling as follows:

Where a Union citizen is a national of two Member States of the European Union but has always lived in only one of those two States, she cannot claim a right of residence under Directive 2004/38/EC in that State.