The Queen, on the application of Sean Ambrose McCarthy and Others v Secretary of State for the Home Department.
Date: 2014-12-18
31. As is apparent from settled case-law, Directive 2004/38 aims to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States that is conferred directly on Union citizens by Article 21(1) TFEU and to strengthen that right (judgment in O. and B. , C‑456/12, EU:C:2014:135, paragraph 35 and the case-law cited).
32. Having regard to the context and objectives of Directive 2004/38, the provisions of that directive cannot be interpreted restrictively, and must not in any event be deprived of their effectiveness (judgment in Metock and Others , C‑127/08, EU:C:2008:449, paragraph 84).
33. As regards, first, any rights of family members of a Union citizen who are not nationals of a Member State, recital 5 in the preamble to Directive 2004/38 points out that the right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of dignity, be also granted to their family members, irrespective of nationality (judgment in Metock and Others , EU:C:2008:449, paragraph 83).
34. Whilst the provisions of Directive 2004/38 do not confer any autonomous right on family members of a Union citizen who are not nationals of a Member State, any rights conferred on them by provisions of EU law on Union citizenship are rights derived from the exercise by a Union citizen of his freedom of movement (see, to this effect, judgment in O. and B. , EU:C:2014:135, paragraph 36 and the case-law cited).
36. Thus, the Court has held that not all family members of a Union citizen who are not nationals of a Member State derive rights of entry into and residence in a Member State from Directive 2004/38, but only those who are family members, within the meaning of point 2 of Article 2 of that directive, of a Union citizen who has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national (judgments in Metock and Others , EU:C:2008:449, paragraph 73; Dereci and Others , C‑256/11, EU:C:2011:734, paragraph 56; Iida , C‑40/11, EU:C:2012:691, paragraph 51; and O. and B. , EU:C:2014:135, paragraph 39).
40. In addition, the first subparagraph of Article 5(2) of Directive 2004/38 provides that ‘[f]or the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement’. As is apparent from recital 8 in the preamble to the directive, that exemption is intended to facilitate the free movement of third-country nationals who are family members of a Union citizen.
41. Article 5 of Directive 2004/38 refers to ‘Member States’ and does not draw a distinction on the basis of the Member State of entry, in particular in so far as it provides 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.
45. It is true that, in accordance with the Court’s case-law, Directive 2004/38 does not deprive the Member States of all possibility of controlling the entry into their territory of family members of Union citizens. However, where the family member of a Union citizen who is not a national of a Member State derives rights of entry into and residence in the host Member State from Directive 2004/38, that State may restrict that right only in compliance with Articles 27 and 35 of the directive (see judgment in Metock and Others , EU:C:2008:449, paragraphs 74 and 95).
46. By virtue of Article 27 of Directive 2004/38, Member States may, where this is justified, refuse entry and residence on grounds of public policy, public security or public health. Such a refusal must be based on an individual examination of the particular case (judgment in Metock and Others , EU:C:2008:449, paragraph 74). Thus, justifications that are isolated from the particulars of the case in question or that rely on considerations of general prevention are not to be accepted (judgments in Jipa , C‑33/07, EU:C:2008:396, paragraph 24, and Aladzhov , C‑434/10, EU:C:2011:750, paragraph 42).
47. Furthermore, in accordance with Article 35 of Directive 2004/38, Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by that directive in the case of abuse of rights or fraud, such as marriages of convenience; however, any such measure must be proportionate and subject to the procedural safeguards provided for in the directive (judgment in Metock and Others , EU:C:2008:449, paragraph 75).
49. Indeed, decisions or measures adopted by the competent national authorities relating to a possible right of entry or residence, on the basis of Directive 2004/38, are intended to establish the individual position of a national of a Member State or of his family members with regard to that directive (see, to this effect, with regard to issue of a residence permit on the basis of secondary legislation, judgments in Collins , C‑138/02, EU:C:2004:172, paragraph 40; Commission v Belgium , C‑408/03, EU:C:2006:192, paragraphs 62 and 63; and Dias , C‑325/09, EU:C:2011:498, paragraph 48).
53. Thus, the Member States cannot refuse family members of a Union citizen who are not nationals of a Member State and who hold a valid residence card, issued under Article 10 of Directive 2004/38, the right, as provided for in Article 5(2) of the directive, to enter their territory without a visa where the competent national authorities have not carried out an individual examination of the particular case. The Member States are therefore required to recognise such a residence card for the purposes of entry into their territory without a visa, unless doubt is cast on the authenticity of that card and the correctness of the data appearing on it by concrete evidence that relates to the individual case in question and justifies the conclusion that there is an abuse of rights or fraud (see, by analogy, judgment in Dafeki , C‑336/94, EU:C:1997:579, paragraphs 19 and 21).
54. In this connection, the Court has stated that proof of an abuse requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the EU rules, the purpose of those rules has not been achieved, and, second, a subjective element consisting in the intention to obtain an advantage from the EU rules by artificially creating the conditions laid down for obtaining it (judgments in Hungary  v Slovakia , C‑364/10, EU:C:2012:630, paragraph 58 and the case-law cited, and O. and B. , EU:C:2014:135, paragraph 58).
55. In the absence of an express provision in Directive 2004/38, the fact that a Member State is faced, as the United Kingdom considers itself to be, with a high number of cases of abuse of rights or fraud committed by third-country nationals resorting to sham marriages or using falsified residence cards cannot justify the adoption of a measure, such as that at issue in the main proceedings, founded on considerations of general prevention, to the exclusion of any specific assessment of the conduct of the person concerned himself.
56. Indeed, the adoption of measures pursuing an objective of general prevention in respect of widespread cases of abuse of rights or fraud would mean, as in the case in point, that the mere fact of belonging to a particular group of persons would allow the Member States to refuse to recognise a right expressly conferred by Directive 2004/38 on family members of a Union citizen who are not nationals of a Member State, although they in fact fulfil the conditions laid down by that directive. The same would be true if recognition of that right were limited to persons who are in possession of residence cards issued by certain Member States, as the United Kingdom has envisaged.
59. It should be recalled that Article 77(1)(a) TFEU states that the European Union is to develop a policy with a view to ensuring the absence of any controls on persons, whatever their nationality, when crossing internal borders of the European Union. The abolition of internal border controls forms part of the European Union’s objective, stated in Article 26 TFEU, of establishing an area without internal frontiers in which the free movement of persons is ensured. That aspect of the absence of internal border controls was implemented by the EU legislature by adopting, on the basis of Article 62 EC (now Article 77 TFEU), Regulation No 562/2006 which seeks to build on the Schengen acquis  (see, to this effect, judgment in Adil , C‑278/12 PPU, EU:C:2012:508, paragraphs 48 to 50).
62. Thus, in the case of family members of a Union citizen who are not nationals of a Member State and who seek to enter the United Kingdom in reliance upon a right of entry provided for by Directive 2004/38, verification, for the purposes of Article 1 of Protocol No 20, consists, in particular, in checking whether the person concerned is in possession of the documents prescribed in Article 5 of that directive. In this regard, even though the Court has held that residence permits issued on the basis of EU law, by nature, declare and do not create rights (judgments in Dias , EU:C:2011:498, paragraph 49, and O. and B. , EU:C:2014:135, paragraph 60), the fact remains that, as has been established in paragraph 53 of the present judgment, the Member States are, in principle, required to recognise a residence card issued under Article 10 of Directive 2004/38, for the purposes of entry into their territory without a visa.