Legal Briefing

The Immigration Rules and free movement of persons: preventing abuse of the borders

The In-House Lawyer Logo

Public Sector | 01 March 2015

Immigration policy has become one of the primary tranches of political debate within the past few years. Following an increase in immigration to the United Kingdom from the European Union and the rest of the world, the government and politicians continue to promise a reduction in net migration. Such a stance appears to strike a chord with the British public, with the eurosceptic UK Independence Party securing two House of Commons seats in less than two months during 2014, and calls from the Prime Minister for an EU ‘in-out’ referendum in 2017. We can expect further tightening of the Immigration Rules in the run up to the general election in May, but control over migrants coming from other EU member states is at odds with the principle of freedom of movement. 


The current political climate also stems from concerns within the UK over the abuse of EU rights and fraud by third-party nationals, but the UK’s legislation has been criticised as being in direct conflict with our wider EU obligations. The European Court of Justice (ECJ) in the case of McCarthy & ors [2014] considers the UK’s immigration procedures in line with EU directives. The ECJ’s judgment, and the preceding opinion by the Advocate General, brings to light important issues about the scope of the EU’s free movement rules.

THE PRINCIPLE OF 
FREEDOM OF MOVEMENT

The principle of freedom of movement and residence for European Economic Area (EEA) member state nationals and their family members is the cornerstone of EU citizenship. The practical implementation of the principle, however, has not been straightforward, and has been met with hostility by member states who are reluctant to open their borders. It first involved the gradual abolition of internal borders under the Schengen Agreement (currently consisting of 22 EU member states and four other countries). Schengen states have agreed to eliminate their internal borders in favour of improving security through more effective external border control governed by the Schengen Border Code. The UK has chosen to opt out of this. The UK government’s objections to the Schengen Agreement have been centred on concerns of a loss of control over immigration policy, as well as reluctance to relinquish current immigration legislation in favour of a common visa system. This suggests a lack of faith in the ability of other member states to prevent an increase in illegal immigration.

The free movement of persons is today mainly governed by Directive 2004/38, the Free Movement Directive, which allows EEA citizens and their family members to move and reside freely within the territory of the member states. The implementation of the directive, however, still faces a number of obstacles. As a member of the European Union, the UK has signed up to the Free Movement Directive. Article 5 (2) of the directive states:

‘Family members who are not nationals of a member state shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law. For 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.’1

Despite this, under the Immigration (European Economic Area) Regulations 2006, in order to be able to travel to the UK, a non-EEA family member of an EEA national must apply for an EEA family permit, a category of entry clearance which is valid for six months. This regulation prevents non-EEA family members from exercising these enshrined rights.

McCarthy addressed this conflict between the European directive and the UK Immigration Regulations. The case involved Sean McCarthy; a dual British and Irish national resident in Spain, and his Colombian wife. The couple own a house in the UK to which they frequently travel, and have exercised their rights of freedom of movement since becoming residents in Spain in 2010. Mrs McCarthy was repeatedly required by the UK Authorities to obtain an entry permit before entering the UK with her British national spouse, despite being issued a residence card by the Spanish authorities. The directive applied in this case; Mr McCarthy had exercised his free movement rights by genuinely residing in another member state and then travelling with his non-EEA family member to the state of which he is national. Relying on this engagement of EU law, Mrs McCarthy successfully argued that the UK had failed to fulfil its obligations under the European Free Movement Directive, and in particular Article 5(2) which states that:

‘… a valid residence card shall exempt such family members from the visa requirement’2.

The secretary of state argued that Article 5(2) was not required to be implemented into UK law, because of the ‘systematic problem’ of abuse of rights and fraud by third country nationals. The ECJ, however, held that any infringement of Article 5(2) of the directive could be justified only on an individual examination of a particular case on grounds of public policy, public security or public health. In this case, an infringement of Mrs McCarthy’s rights could not be justified on the basis of a generic fear of abuse of rights or fraud by non-EEA migrants.

Article 35 of the directive provides a discretionary right to member states to:

‘… adopt the necessary measures to refuse, terminate or withdraw any right conferred by this directive in the case of abuse of rights or fraud, such as marriages of convenience.’3

WHEN DOES ARTICLE 35 APPLY?

Article 35 can be invoked in instances where there is a specific case involving an abuse of rights or fraud. It is clear from the Article’s wording that ‘necessary measures’ does not provide for a blanket removal of Article rights.

The secretary of state argued that the requirement for Mrs McCarthy to obtain an entry permit was justified following recent findings that a significant number of those holding residence cards were not genuinely entitled to them. The ECJ clarified that the use of Article 35 was not proportionate in this case. The general fear of an abuse of rights and fraud relating to migration to the UK as a whole does not entitle the UK to implement a blanket visa requirement to all those wishing to travel to the UK. This would be contrary to the principle of mutual recognition and freedom of movement.

The McCarthy judgment raises a number of policy issues surrounding EU law and member state discretion in controlling their borders. As immigration has become an increasingly contentious topic within the UK, legislation has been tightened to reflect this. EU member states must comply with their European obligations and domestic legislation must be compatible with European laws. Striking this balance is proving difficult when assessing the current political climate. The British media is littered with reports on the dangers of promoting free movement, calling for immigration reforms which are in direct conflict with our wider EU obligations. In an attempt to reduce net migration, wider EU obligations and principles have been compromised in favour of stricter immigration policies. The recent decision by the ECJ acts as a reminder that UK immigration policy must remain in line with European principles.

It is clear that the secretary of state relied too heavily on the discretion devolved to member states by way of Article 35. This provision does not grant member states free reign to impose strict immigration requirements on those wishing to enter the UK in order to appease current fears of mass migration to the UK. The directive does not provide a precautionary measure allowing member states to cope with a ‘systematic abuse of rights’ when residence cards are issued. A precautionary measure to prevent such an abuse provided for in Article 35 depends on the finding of abuse in a specific case. The advocate general commented that the evidence relied upon by the UK did not amount to specific evidence linked to the conduct of the McCarthy family in this individual case; a general presumption of fraud is insufficient. The assessment of an abuse of rights is a question for the domestic court and, in making that assessment, the member state must not compromise EU principles. The Court reiterated the twofold test for proving an abuse of rights in such cases (Hungary v Slovakia [2012]) with both the objective and subjective elements in place. The Grand Chamber commented that such general preventative measures cannot be permitted to apply 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’4.

Evidence suggests that while the UK authorities may have a legitimate concern over the abuse of rights and fraud, their response in this case was disproportionate. National borders protocol is clearly and expressly subordinate to the EU principles of freedom of movement and mutual recognition, and the UK must ensure that immigration legislation and policies reflect this. The EU is committed to the abolition of internal border controls and upholding the principle of free movement of persons; the UK opted out of the Schengen Agreement and is therefore entitled to conduct border checks in order to verify the genuineness of documents and the correctness of data. Despite this, the ECJ confirmed that this does not allow the UK to add conditions of entry. Conditions which are preventative and aim to stop migrants entering illegally from other member states should intend to first ascertain whether the migrant has the right to enter under EU law. If the migrant does have EU entry rights, they should be permitted to enter the UK.

In light of the judgment it appears that any restrictions imposed on migrants wishing to enter the UK cannot apply to EEA nationals or their family members as a whole due to the protectionist nature of EU rights. It follows, therefore, that any promise for a reduction in net migration to the UK can only lawfully be applied to migration from the rest of the world. As a non-EEA national exercising EU rights, the UK’s requirement for Mrs McCarthy to obtain an entry clearance visa before entering the UK acted as an automatic restriction of the rights of free movement. The border control rights retained by the UK did not permit the UK to disregard the residence card issued to Mrs McCarthy by the Spanish authorities.

WHAT DOES THIS MEAN FOR THE FUTURE?

The case of McCarthy is significant in reaffirming the importance of EU legislation in relation to UK immigration law. The requirement for Mrs McCarthy to obtain an entry clearance visa went too far in imposing a blanket requirement, rather than assessing the case on its own facts. The decision acts as a reminder that EU principles cannot be easily abridged in favour of strict procedures in order to appease member state concerns over a misuse of rights. The ECJ made clear that it will not allow member states to infringe fundamental EU rights in an attempt to pacify public trepidations. Importantly, the ruling will make it easier for British nationals living abroad to travel to the UK with their non-EEA family members if they have already obtained a residence card within another member state. It remains to be 
seen whether the 2006 EEA Regulations will be amended in light of the McCarthy judgment, but the case is significant in demonstrating the importance of EU principles and obligations in relation to UK immigration law.

The UK government has demonstrated consistent reluctance to relinquish power to the European Union, and participates selectively in EU immigration policy. It is commonly observed that the UK often participates in EU measures relating to the prevention of further migration into the EU, while opting out of those which encourage member states to abolish their internal borders. While remaining ultimately autonomous over border control and immigration matters, the disadvantage of this selective approach is that the UK continues to exclude itself from EU policies. As the election approaches, the debate around migration is becoming yet more toxic. It must be borne in mind, however, that any border restrictions imposed must be carefully considered and tactically created in order to avoid affecting EU rights. This suggests that any further tightening of the immigration rules will be targeted towards reducing the number of third-party nationals entering the UK. The McCarthy judgment has thus played a pivotal role in highlighting the checks that remain in 
place to prevent the UK from acting ultra vires of its discretionary powers affecting its borders.