UKBA ‘reviewing’ impact of ECJ cases
Following recent judgements from the EU, the UK Border Agency (UKBA) are reviewing their impact on rights for carers and treaty rights for non-EU spouses of EU citizens. They are looking at whether any policies or practices need to be updated as a result.The Court of Justice of the European Union passed judgement in cases affecting:
- the rights of people who are the sole carers for dependents who are EU citizens
- non-British EU nationals living in the UK who want to bring a non-EU spouse or partner to the UK
The impact of these cases is summarised below.
Sole carers of EU citizens
The first case clarifies the rights of UK/EU dependents in relation to their carers who are foreign nationals.
The ruling affects cases where the foreign national is the only person who can care for the dependent(s) - for instance, the case specifically affected Colombian parents of Belgian children.
As a result of this ruling, it has been established that where a British or EU dependent is living in the UK and needs a foreign national carer to live with them so they can stay in the country, then the foreign national has the right under EU law to reside in the UK.
The carer also has the right to work as they need to be able to support their dependent. These rights apply no matter where else the dependent has lived in the EU previously.
Treaty rights and foreign national spouses or partners
The second case affected an Irish national who lived in the UK and wanted to bring her Jamaican-born husband to live in the UK.
Despite being Irish, she had always lived in the UK. She had also never been employed, was not self-sufficient and relied on social welfare benefits.
The issue is that she applied for permanent residence in the UK after getting her Irish passport and at the same time Mr McCarty applied for residence as the spouse of an EU citizen. Her application for permanent residence was refused because she was not able to support herself. This meant that as a result her husband’s application was also refused.
In order for an EU citizen to gain permanent residence they must be ‘exercising Treaty rights’; in this case the treaty rights meant she must have been working and self-sufficient to qualify for permanent residence. The full treaty rights are detailed on the Residence documents for European citizens page of the UKBA website.
As a result of this ruling, it has now been established that EU citizens who are not exercising Treaty rights cannot invoke Union citizenship to regularise the residence of their non-EU spouse.
As long as the individual, in this case a Mrs McCarthy, do not have their own rights of movement and residence around the EU restricted it is a matter for national law and judgement. This means that Mrs McCarthy still has the full freedom of the EU, but she and her husband are bound by the British immigration system.
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