McCarthy judgement has no relevance on EEA Family Residence Applications

European Union law – Residence permits – Family members

Article 5(2) of the Directive directs Member States to exempt non-EEA family members from visa requirements otherwise applicable under national law if they hold an EU valid “residence card” issued in accordance with Article 10 of the Directive – the UK has refused to do so because of concerns as to abuse of rights and fraud and the lack of uniform or minimum standards for “residence cards” issued by other Member States – under the Frontiers Protocol, the UK is expressly entitled to exercise such controls at its frontiers on persons seeking to enter the United Kingdom as it considers necessary for the purposes of:

(a) verifying the rights of EU citizens and their dependents to enter the UK conferred by Union law, or

(b) determining whether or not to grant other persons permission to enter the United Kingdom – the UK considers it necessary to maintain controls (those established under Regulation 11 of the EEA Regulations) on non-EEA family members to enable the Border Agency: (a) to verify that those seeking to enter the UK pursuant to free movement rights granted to family members under the Directive are entitled to do so; and

(b) to carry out appropriate checks to ensure that there is no reason to refuse other persons permission to enter the UK, e.g. on grounds of public security – the UK position was also justified by the Article 35 of the Citizens Directive addressing abuse of rights – whilst acknowledging the irritation and inconvenience that some non-EEA family members might feel and experience in having to renew their “family permits” every six months in order to ensure their ability to travel freely to the UK, this does not come close to establishing disproportionality – nevertheless the question was not acte clair – there would be a Reference to the CJEU of the question whether the UK’s approach to non-EEA family members holding EU “residence cards” issued by other Member States is lawful (Haddon-Cave J)

Recent case laws when applying the case law process which no longer exists

In the recent judgement made in the case of Benjamin & Anor, R (on the application of) v Secretary of State for the Home Department [2016], the Judge clarified their position on the McCarthy judgement.

The Judge stated the following:

“For the reasons I have set out above, I have concluded that the Defendant acted lawfully in refusing to grant Mrs Benjamin an EEA family permit in November 2013 and refusing to grant her entry clearance to the UK in December 2013, because there was insufficient evidence to show that they fulfilled the requirements of EU and domestic law. I do not consider that it is appropriate to make a reference to the CJEU since the law has already been clarified in the recent case law referred to above, and these claims have failed on the facts, not on a point of law. The claims for judicial review therefore have to be dismissed, and the question of remedies does not arise.”

The above gives confirmation that the McCarthy case law cannot be simply used and given the current Brexit process, it looks certain that the UK will not be in favour of any changes to the EU Regulations 2006.

Contact us if you would like to discuss your requirements, you can email our legal team on or call our team on 0207 237 3388.