## Facts

- Shirley McCarthy was born in the United Kingdom, was a British national, later acquired Irish nationality by descent, and always resided in the UK.
- She never moved to, or resided in, another EU Member State.
- After marrying a Jamaican national who was unlawfully present in the UK, she obtained an Irish passport.
- She applied for an EU-law residence permit in the UK as an Irish national; her husband sought a residence document as the spouse of a Union citizen.
- UK authorities refused both applications, reasoning that McCarthy had not exercised EU free-movement rights and EU law could not be used to regularize either residence.
- McCarthy challenged the refusals in UK courts; the UK Supreme Court referred questions to the Court of Justice of the European Union.

## Issues

1. Whether Directive 2004/38/EC applies to a Union citizen who has never exercised free movement, always resided in a Member State of nationality, and also holds another Member State’s nationality.
2. Whether Article 21 TFEU applies in that situation so as to require the Member State of residence/nationality to grant residence rights to the citizen and derived residence rights to the citizen’s third-country spouse.

## Decision

- The court held that Directive 2004/38/EC did not apply because McCarthy had not moved to or resided in a Member State other than that of her nationality.
- Because the Directive was inapplicable to McCarthy, her third-country spouse could not obtain derived residence rights under the Directive.
- The court held that Article 21 TFEU was not engaged in this purely internal situation, absent a national measure that would deprive the citizen of the genuine enjoyment of the substance of EU citizenship rights or impede future exercise of free movement.
- The refusals therefore did not violate EU law, and no EU-law residence right arose for McCarthy or her spouse.

## Legal Principles

- Directive 2004/38/EC applies only to Union citizens who move to or reside in a Member State other than that of their nationality, and to qualifying family members.
- A Union citizen’s residence in the Member State of nationality is not subject to the Directive’s conditions for residence based on free movement.
- Dual Member State nationality, without cross-border movement, does not by itself bring a person within the Directive’s scope.
- Article 21 TFEU generally does not apply to situations confined to a single Member State; an exception may arise only where national action effectively deprives the citizen of the substance of EU citizenship rights or makes exercise of free movement practically impossible.

## Conclusion

A dual national who has always lived in a Member State of her nationality and has never exercised free movement cannot invoke Directive 2004/38 or Article 21 TFEU to obtain an EU-law residence status for herself or derived residence rights for a third-country national spouse, absent a measure that effectively strips the citizen of the substance of EU citizenship rights.


McCarthy v. Sec’y of State for the Home Dep’t, Case C-434/09, 2011 E.C.R. I-3375 (C.J.E.U. 2011)