Sonia Morano-Foadi

Non-EU spouses of a national of a Member State have the right to reside legally in another Member State together with the Union citizen as provided by art 21 TFEU and Directive 2004/38. However, both the directive and art 21 TFEU are not applicable to situations where a Union citizen has not made use of his/her right of freedom of movement. This was clearly formulated in a judgement decided by the Court of Justice of the EU on 5th May 2011. The case clarifies the personal scope of Directive 2004/38 and art 21 TFEU. It involves a British/Irish national (Mrs McCarthy) who was born in the UK and always lived there. Following her marriage to a TCN, Mrs McCarthy applied for an Irish passport for the first time. Once obtained, as an Irish national, she asked for a residence permit to base her residence in the United Kingdom on rights associated with European citizenship. Consequently, her husband applied for a residence document as the spouse of a Union citizen. Both applications were refused on the ground that Mrs McCarthy could not base her residence on European Union law and invoke that law to regularise the residence of her spouse, since she had never exercised her right to move and reside in Member States other than the United Kingdom.

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