EU LAW: Exam Summary Notes on 'The free Movement of Person'

THE FREE MOVEMENT OF PERSONS

1. CITIZENSHIP

·         Article 20 TFEU establishes ‘Citizenship of the Union’. Nationality of a Member State is a prerequisite for Citizenship status. Non-EU nationals cannot claim Citizenship status (Iida).

·         The acquisition of nationality is a matter of national law (Micheletti; Zhu & Chen), as is the loss of nationality (Rottmann).

·         ‘Nationality’ includes dual nationals (Micheletti, Collins, Z.Z.).

·         It is immaterial whether or not the Citizen is economically active (Bressol & Chaverot). The following have successfully invoked Citizenship status:

o  the unemployed – Martínez Sala; Collins; De Cuyper

o  students – Grzelczyk; D’Hoop; Bidar; Förster; Bressol & Chaverot; Elrick

o  the retired – Pusa; Turpeinen; Nerkowska

o  those incapable of working for health reasons –Tas-Hagen; Stewart

o  children – Zhu & Chen; Schwarz, Ruiz Zambrano.

2. CITIZENS’ RIGHTS OF FREE MOVEMENT AND RESIDENCE

1.      Article 21 TFEU

·         Article 21 TFEU gives Citizens ‘the right to move and reside freely within the territory of the Member States’. Article 21 is directly effective (Baumbast & R)).

·         Article 21 prohibits national legislation which “disadvantages” a Citizen merely because he/she has exercised his/her rights of free movement (Pusa; Turpeinen; De Cuyper; Tas-Hagen; Stewart).

·         Those claiming rights under Article 21 must not become “an unreasonable burden” on the host State (Grzelczyk). The mere fact that a Citizen receives social assistance from the host Member State does not make him/her an “unreasonable burden” (Brey).

2.     Directive 2004/38

·      Article 4: A right of ‘exit’ from the home State.

·      Article 5: A right of ‘entry’ into the host State. Citizens may be required to report their presence in the host State to the authorities.

·      Article 6: A right of residence in the host State for up to 3 months

·      Article 7(1): For longer residence periods, the Citizen should either be working, self-employed, financially independent or a student. These categories are not mutually exclusive (L.N.).

·      Article 16: A right of permanent residence in the host State, after 5 years’ continuous ‘legal’ residence. ‘Legal’ residence means in compliance with Article 7(1) (Ziolkowski & Szeja). Time spent in prison does not count as ‘legal’ residence (Onuekwere). Certain temporary or unavoidable interruptions (e.g. compulsory military service) are overlooked in determining continuity of residence. The right of permanent residence can only be lost after 2 consecutive years’ absence from the host State.

·      Article 17: A right of permanent residence on reaching the state’s retirement age (after 3 years’ residence), or in the event of permanent incapacity to work (after 2 years’ residence), or if forced to give up work following an ‘accident at work’ or ‘occupational disease’.

·      Article 24: A right to ‘enjoy equal treatment’ with the nationals of the host Member State.

3. CITIZENS’ RIGHTS OF NON-DISCRIMINATION

·         Article 18 TFEU prohibits discrimination on grounds of nationality. Discrimination may be direct or indirect.

o   Direct discrimination occurs when a rule of national legislation applies different rules depending expressly on nationality (Martínez Sala; Grzelczyk; Wood). Direct discrimination is extremely difficult to justify.

o   Indirect discrimination occurs when a national rule is superficially neutral, but in practice is easier for nationals to satisfy and/or harder for non-nationals to satisfy. Indirect discrimination can be justified (see below).

·         This has enabled Citizens to claim financial benefits in the host State, such as child support (Martínez Sala); a ‘tideover’ allowance (D’Hoop), subsistence benefit (Grzelczyk, Trojani), student loans and grants (Bidar; Förster), job-seekers’ allowance (Collins), etc.

4. JUSTIFYING INDIRECT DISCRIMINATION

·         Entitlement to financial benefits is often restricted under national legislation to claimants who are presently resident in the State in question and/or those who have been so resident for a certain period of time or who have become ‘habitually’ resident.

·         This is indirect discrimination.

·         However, it is potentially justifiable if it is based on “objective considerations of public interest”, operates independently of the nationality of the claimant (i.e. it does not directly discriminate on grounds of nationality), and is “proportionate”. Examples:

o   ensuring a “real link” or “connection” between the claimant and the State in question (D’Hoop; Collins; Tas-Hagen; Nerkowska; Stewart);

o   establishing a “certain degree of integration” by the claimant into the society of the host State (Bidar; Förster);

o   the necessity to verify that the claimant continues to “satisfy the conditions” for the grant of that benefit (De Cuyper; Nerkowska);

o   The need to discourage “benefit tourism” (Patmalniece).

·         The “proportionality” test requires examination of whether a restriction (such as a residency period) goes further than necessary in achieving the objective in question.

5. CiTIZENS’ FAMILY MEMBERS: SCOPE

·      Article 2, Directive 2004/38 defines the scope of the Citizens’ ‘family members’. All ‘family members’ are protected ‘irrespective of their nationality’.

‘Spouse’ (Article 2(2)(a))

·      ‘Spouse’ refers to marital relationships only (Reed; Hadj Ahmed). Only “genuine” marriages will be accepted (Akrich). It is immaterial where the marriage took place (Metock & Others). Marital status continues after separation (Diatta; Iida).

·      It is a moot point whether same sex marriages (presently recognised in 8 Member States) qualify.

·      Divorce terminates the spouse’s status (Baumbast & R). However, Article 13 of Directive 2004/38 allows ex-spouses to retain residence rights in certain situations.

‘Registered Partners’ (Article 2(2)(b))

·      A registered partner is someone ‘with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage’.

‘Descendants’ (Article 2(2)(c))

·      A Citizen’s ‘descendants’ – and those of the spouse or partner – must be either under 21 years of age or ‘dependent’.  ‘Descendants’ means children and grandchildren (Bigia & Others (Court of Appeal)). Step-children are included (Baumbast).

·      ‘Dependence’ is a question of fact – the reason for such dependence is irrelevant (Lebon). The “need for material support must exist in the State of origin” (Reyes). There is no requirement that a descendant have tried (but failed) to find employment or alternative means of supporting himself (Reyes).

‘Direct relatives in the Ascending Line’ (Article 2(2)(d))

·      This applies to the Citizen’s parents and grandparents, and those of the Citizen’s spouse or partner, provided they are ‘dependent’.

·      The “need for material support must exist in the State of origin” (Jia).

‘Other family members’ (OFMs) / partners in a ‘durable relationship’

·      Directive 2004/38, Article 3, refers to ‘other family members’ (OFMs), irrespective of their nationality. They must either be ‘dependants’ or ‘members of the household’ of the Citizen, or where ‘serious health grounds strictly require… personal care’.

·      OFMs are “less direct relatives” than full family members (Bigia & Others (Court of Appeal)).

·      Examples of OFMs are brothers and sisters, cousins, uncles and aunts, nieces and nephews.

o   An OFM who is claiming to be dependent does not have to have lived with the Citizen in his/her home State (Rahman). The “situation of dependence” must exist, in the country from which the OFM comes, at the time “when he applies to join the Union citizen on whom he is dependent” (Rahman).

o   An OFM who is claiming to be a ‘member of the household’ of the Citizen must have actually lived with the Citizen (G & K (Court of Appeal)).

o   There is no definition of ‘serious health grounds’ or ‘personal care’.

·      Directive 2004/38, Article 3, also refers to partners in a ‘durable relationship’, again irrespective of their nationality. There is no definition of a ‘durable relationship’ but a couple who had lived together for 6 years and had a child together qualified in B & C (High Court).

6. CiTIZENS’ FAMILY MEMBERS: RIGHTS

‘Family members’ (as defined in Article 2 of Directive 2004/38) have the following rights, irrespective of their nationality:

… to Residence (Article 3 of Directive 2004/38)

·      Family members are entitled to ‘accompany’ or ‘join’ the Citizen in the host Member State.

·      Family members living in other Member States are not protected by EU Law (Iida).

·      Family members may claim a right of residence even if they entered the host State before the Citizen and even before becoming a family member (Metock & Others).

·      There is no requirement that family members had previously resided with the Citizen in the latter’s home state (Jia).

·      Family Members may acquire a right of permanent residence after 5 years’ legal residence with the Citizen (Article 16), or earlier in certain circumstances (Article 17). One is when the Citizen dies, in two situations (i) the Citizen had ‘resided continuously on the territory of that Member State for 2 years’ or (ii) the death resulted from an ‘accident at work or an occupational disease’. In the former situation, only ‘continuous’ residence immediately prior to the Citizen’s death can be taken into account (Givane).

… to employment / self-employment (Article 23 of Directive 2004/38)

·      This is without discrimination based on nationality (Gül).

·      But only in the same Member State as the Citizen (Mattern & Cikotic).

… to Equal treatment with host State nationals (Article 24 of Directive 2004/38)

Rights of OFMs and partners in a durable relationship

·         OFMs and partners in a durable relationship, meanwhile, do not have these rights. They are not even guaranteed entry into the host Member State.

·         The host State is only required to ‘facilitate’ entry and residence. This requires the host State to undertake an “extensive examination of their personal circumstances” (Rahman), and any refusal of entry must be justified. The State is required to take account of all factors in each case, such as such as “the extent of economic or physical dependence and the degree of relationship” (Rahman).