The European Court of Justice in her Judgment in the case of McCarthy (C-434/09) of 5 May 2011, has answered the question whether Directive 2004/38 or Article 21 TFEU is applicable to the situation of a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State. The Court has answered this question negatively.
The Court furthermore judges that that finding cannot be influenced by the fact that the citizen concerned is also a national of a Member State other than that where he resides. And, indeed, the fact that a Union citizen is a national of more than one Member State does not mean that he has made use of his right of freedom of movement.
This implies that for McCarthy the more strict national British immigration rules are applicable to her request for family reunfication with her Jamaican spouse.