The Court of Appeal has given judgment in Kaur v Secretary of State for the Home Department  EWCA Civ 98.
The Court decided that family members of a British citizen who were non-EU nationals were not entitled to enter the UK under EU law simply because they held residence documents from another EU Member State. The Appellants’ spouse and father had been working in Bulgaria, and they had joined him there for a short period of just over two weeks, and then sought to enter the UK. Their evidence that this was just for a holiday was rejected by the First-tier Tribunal, which decided that the Appellants’ residence in Bulgaria had not been genuine, and there had been no creation or strengthening of family life there. The Court of Appeal rejected the argument that the CJEU’s judgment in McCarthy v SSHD (No. 2) Case C-202/13  QB 651 conferred any right to enter or reside in the UK in those circumstances. The Appellants had no right to enter or reside in the UK under either Directive 2004/38/EC or Article 21 of the Treaty, and the CJEU’s judgment in McCarthy simply concerned the formalities which applied to a person who had a right to reside. The appeals were dismissed.
Julia Smyth successfully represented the Secretary of State.