Dual British/Irish nationals and their non-EU dependants
The Law Centre has now had three appeals determined in light of the Court of Justice of the European Union judgement in McCarthy vs United Kingdom. The Court in McCarthy ruled that dual nationals who have not moved from one member state to another cannot benefit from EU free movement law.
Two judges allowed appeals, involving European Union law and dual British/Irish nationals and their non-EEA spouse, while another judge dismissed the appeal on the basis of McCarthy.
The first appeal involved a non-EEA family member of a dual British/Irish national who is now permanently incapacitated. We successfully argued that our client is the family member of a worker who has ceased activity (regulation 5, 2006 Regulations). We relied in part on a judgement of the Immigration and Asylum Tribunal to argue that the Regulations were more favourable than the Directive.
The Home Office has not appealed this decision and we are now waiting for the permanent residence card.
In the second appeal, the judge accepted a very similar argument in respect of a worker who is temporarily unable to work (regulation 6, 2006 Regulations). We are waiting to see if the Home Office appeals this decision.
Unfortunately in our third case, the judge did not address this argument, despite similar submissions, and merely declared that, following McCarthy, dual British/Irish nationals cannot rely on European law. We have appealed against this decision.