Citizenship Flashcards
Summary
Linked to the free movement of workers and people.
First aspect of substantive EU law:
Not based on constitutional implications.
Fundamental to the EU identity.
Now one of the most evolving concepts that has generated a lot of case law.
History
The concept was first introduced with the Maastricht treaty to shift from a solely economic union to a social one.
‘Peoples Europe’.
Scepticism
At the time there was some scepticism about citizenship because members were assumed to reap the benefits without giving anything in return.
Lisbon treaty
Linked citizenship to the prohibition of discrimination on grounds of nationality.
Situated citizenship as part of a growing emphasis on representative democracy.
Directive 204/38: Gathered parts of secondary law and codified them into an individual directive that governs citizenship.
Case that described citizenship
Grzezyck
Grzezyck
Held: CJEU stated that Union citizenship is destined to be the fundamental status of nationals of the member states.
Role of CJEU in citizenship
Defining what citizenship means.
Defining the rights and the limits of what citizenship can be.
Establishing that citizenship and non-discrimination are interlinked.
Created autonomous rights from treaty provisions that operate in the background of the directive.
Things to remember
EU citizenship is not monolithic: It operates as an addition to the citizenship of a member state.
EU citizenship does not displace the citizenship of member states.
EU citizenship is contingent on the citizenship of a member state: If you lose your national citizenship, your
EU citizenship goes away.
The EU does not regulate directly how member states offer their citizenship.
The articles that form legal basis of cit
Article 9 TFEU
Article 20 TFEU
Article 21 TFEU
Articles 22-25
Article 9 TFEU
Do not need to apply/satisfy a test in order to obtain EU citizenship, it is automatic.
Under EU law, every citizen of the EU is equal.
Article 20 TFEU
Every citizen of member state is a citizen of EU
20(2)(a):
Establishes the right to move and reside freely.
20(2)(b):
NB: If you become a resident in another member state, you can run for the municipal or European elections.
20(2)(c):
if you are in a different country and there’s no national embassy, you can use the embassy of any other member state.
Member states of the union act for each other and their members even beyond the limits of the EU, even in jurisdictions that are not member states.
20(2)(d):
The right to engage with any institution in your own language.
NB: These rights are exercised through the directive and are subject to the limits defined by the treaty.
They are not absolute and unconditional rights.
Article 21 TFEU
Free movement
Artilce 22-25
Reiterate 202b-2
Cases that establish that Eu cit is dependent on cit of member state
The queen v secretarty of state
Micheletti
Rottman
Tjebbles
JY
The Queen v Secretary of State
Facts: Concerned a female applicant who was a citizen of the UK and was born in Kenya.
Her parents were of South East Asian descent.
Because Kenya was a colony of Britain at the time of her birth, she received UK citizenship.
The legislation governing her grant of UK citizenship was changed and individuals under the act were categorised into 3 groups, each with their respective entitlements.
The applicant was put into the group that was not afforded the right to remain in the UK: She could apply to remain but she was not automatically entitled.
This was challenged for judicial review.
Issue: Could the newly amended legislation alter the rights that she previously had such that it deprives her of her EU citizenship?
Held: it is not a matter of the CJEU to dictate the terms in which member states recognise citizenship.
The UK can make unilateral decisions limiting citizenship.
However, recognised that national jurisdictions do not have unlimited freedom: They must respect a grant of citizenship given by another member state.
Cannot choose to not recognise the citizens of another member state on the basis that they disagree with the way in which they determine it.
Conclusion: Under UK law, the applicant was not a citizen of the state and thus could not benefit from EU citizenship.
Micheletti
Facts: Concerned an individual with dual citizenship of Argentina and Italy.
Has EU citizenship and moves to Spain.
Spain has rules to determine the entitlement of citizens to remain when they are dual citizens based on the last place of residence.
The applicant’s last place of residence was Argentina so Spain treated him like an Argentinian with no EU citizenship.
Challenge: Spain was not entitled to do this as they were not allowed to impose national rules that dictate which EU citizenships can be recognised.
Held: The CJEU agreed.
Member states can regulate the grant of their own citizenships but cannot challenge the grant of citizenship of other member states.
Rottman
Facts: Concerned an Austrian birth national who became a naturalised German citizen.
When he became a German citizen, he automatically lost his Austrian citizenship.
The German authorities found out that he concealed serious criminal proceedings that were pending in Austria and sought to revoke his German citizenship.
This would result in him being stateless and effectively strip him of his EU citizenship so he challenged the decision.
Held: Member states, when exercising powers with respect to citizenship, must have due regard to EU law.
However, member states still have the right to lay down conditions for the grant and revocation of citizenship.
The conditions can be subject to judicial review.
Any removal of citizenship must be proportionate.
The decision to withdraw nationality based on deception could be compatible with EU law if the decision was a proportionate response.
NB: Proportionality is to be assessed by the member state.
Issue: If Germany ended up revoking his citizenship, would Austria be obliged to reinstate his citizenship?
Held: Refused to accept the question on the basis that it was hypothetical.
Tjebbs
Facts: Concerned durch nationals who were dual nationals of a non-EU country.
They applied for passports and were declined on the basis that citizenship of a non-EU country stripped them of their Dutch nationality because they were outside of the Netherlands for more than 10 years.
Held: EU law doesn’t preclude member states from prescribing reasons of public interest for which nationality can be lost, and subsequently, EU citizenship can be lost.
If a member is to do so, those reasons must be proportionate.
Relevant factors:
There has to be regard to the personal circumstances of the individuals.
Whether there’s an objective justification for the removal of citizenship in an individual case.
NB: The fact someone has spent an extended period outside of the state is not enough to remove citizenship solely.
JY facts
Facts: Concerned an Estonian national who was living in Austria.
The applicant had given up their Estonian nationality in order to apply for the Austrian citizenship.
The government of Vienna had assured JY that they would be granted Austrian citizenship if they could prove that within 2 years of residence, they had removed their Estonian citizenship.
The government subsequently refused to grant Austrian citizenship on the basis that the applicant had committed 2 administrative offences:
Failing to showcase a disc on the car.
Driving under the influence of alcohol.
On that basis, he failed to meet the criteria for a grant of citizenship.
This effectively made him stateless.
Role of origin state in JY
A Member State of origin should not revoke citizenship based solely on assurances from another Member State that it will grant citizenship, especially if that new citizenship has not yet been granted..
The preliminary decision may be made, but the revocation should not be finalised until the new nationality is actually conferred.
There must always be at least one citizenship in existence to prevent statelessness and uphold Article 20 TFEU.
Role of receiving state in JY
The responsibility to ensure the effectiveness of Article 20 TFEU lies with the Member State from which the individual is seeking citizenship (Austria).
Austria cannot require someone to exist as stateless for two years as a condition for granting citizenship.
Any decision to deny citizenship must be in accordance with the principle of proportionality.
Factors to consider for proportionality according to JY
The applicant’s personal circumstances.
The position and rights of family members.
The significance of EU citizenship to their personal and professional life.
The consequences of revocation, particularly if it results in the loss of Union citizenship.
Whether the revocation measure is proportionate to its intended purpose.
Whether it disproportionately interferes with the person’s family life, personal life, or Charter rights.
Public polict and security according to JY
However, public policy and security grounds must be interpreted strictly under EU law.
These cannot be determined unilaterally by Member States without EU oversight.
Such justifications cannot be vague or rhetorical: there must be a clearly identified and legitimate threat that meets the strict EU legal definition.
Proportionality and stateless in JY
Member States must not render individuals stateless when they are transitioning between nationalities.
They must justify citizenship deprivation with specific, proportionate reasons, not generalized references to security or public policy.
Cobclusion of JY
The administrative offences cited in this case were not serious enough to justify deprivation of citizenship.
Rights of Free Movement of EU citizens
state article
Article 21 TFEU
What is it
Article 21 generates autonomous rights.
Individual applicants appeal directly to Article 21 because it grants rights directly to individuals.
Text of A21
citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions
Relevant directive on free movement what dioes it do state case
2004/38
COnsolidatesall previous leg
McCartthy
Held: The Directive provides:
A right of residence for EU citizens.
A derived right of residence for “privileged family members”:
Where that citizen has exercised a right of freedom of movement and become established in another MS, and
On occasions where the citizen is in their own MS
What did the directive previosyly do and what does it do now
It regulates residency for:
Workers
Students
Retired people
These three groups were provided different rights of residence.
The directive includes conditions on rights of residence such as:
Comprehensive health insurance
Sufficient resources so as to not become a burden to the member state.
Amendments:
From the 1990s onwards the EU was concerned with an erosion of those categories.
Removed the idea that free movement must be linked to economic activity.
There was a concern that there was a broad plethora of legislation that was governing free movement so it was confined to the 2004 directive.
Family under the directive state relevant article
2.2
article 2.2 of the directive
Spouse
Registered partner
Direct descendants descending-children and of spouse/registered partner
Direct decednats ascending- parent and of spouse/registered partner
The CJEU has adopted various interpretations of what a family member is: name cases
Metock
Lounes
COman
Metock
Facts: Involved a Cameroonian national who was married to a citizen of GB who had EU citizenship.
They got married and had 2 children in Cameroon before relocating to Ireland because the citizen received an offer for work.
At the time the citizenship directive was implemented through a piece of regulation that provided that family members had to be lawfully residents in another member state in order to be considered a resident.
Problem: They were coming from outside the EU.
Argument: The regulations are invalid as they are contrary to EU law as they restrict his right to join his wife.
Held: The CJEU agrees.
The logical consequence of a right to freedom of movement of citizens must include the right for their family members to join them as provided for under the directive.
To remove that right by denying the family to join would not only frustrate the operation of the directive but also Article 21.
This measure would create a barrier and disincentivise individuals to use their right to freedom of movement because their family members cannot join them.
Conclusion: The condition imposed was not permissible.
Lounes
Case C-165/16Lounes v. Secretary of State for the Home Department
Facts: Concerned a Spanish citizen who became a citizen of the UK at the time of Brexit.
She loses her EU citizenship but retains her British citizenship.
The partner argues that they have a right to reside in the UK.
Issue: Whether a partner of a Spanish national who was naturalised as a British citizen could acquire British citizenship.
Held: Because of Brexit, the wife was no longer an EU citizen for the purposes of the directive.
However, she was still considered an EU citizen for the purposes of Article 21.
Conclusion: If the directive fails, an individual may still appeal to the text of Article 21 itself.
Coman
Facts: Concerned a dispute about whether an American husband of a Romanian national was entitled to be recognised with a derived right of residence.
The directive mandates that the individuals must be married in a member state however, Romania does not recognise gay marriage.
When they sought to move to Romania, they were refused a right of residence under the directive.
The Romanian constitutional court subsequently sent a preliminary reference to the CJEU.
Issue: Whether the CJEU can intervene to require Romania to recognise marriage where there is a bar on gay marriage in its own jurisdiction?
Held: The CJEU has no competence to employ countries to recognise marriages.
However, the real issue was not whether Romania recognised the marriage.
It is about whether the marriage was valid and recognised in the state that it took place.
Romania must accept that another member state has validly recognised the marriage.
Spouse:
The term spouse under the directive is gender neutral, ie. There is nothing to suggest that it does not cover gay relationships.
In understanding the definitions of spouse/partner, the supremacy of EU law must be respected.
It is not for member states to redefine the terms.
Aims of the Directive and Article 21:
The ultimate goal is to ensure that an individual can move freely within member states whilst also maintaining their family life.
Must allow for greater integration of the EU: To create and sustain diverse groups of relationships across the union.
CAse where can satisfy requirewment for fam but refused based on public security
KA
KA
Facts: Concerned a series of families where one partner was a Belgian national and citizen of the union and there was a dependant family member who is a third-country national that meets the criteria under Article 2.
However, they are all refused residence in Belgium because it is argued that they represent a threat to public security.
The right to residence was refused outright and the applicants challenged the refusal in the basis that it was disproportionate and that there must be an examination of the substance of the relationship.
Held: The CJEU agrees with the applicants.
There must be a reference in a decision refusing residence to the personal circumstances of the applicants and that includes their level of dependency on the EU citizen.
The distinction between dependent adults and minors:
A minor will almost always be dependent on an adult family member.
Refusing their guardian’s residence effectively deprives that child of a right of residence.
In circumstances of a dependent adult, it will not be automatic that the EU citizen will be required to leave if the person is denied residence.
However, there still is an obvious obstruction to family life.
The courts must examine each case individually.
Public interest/security:
A member state can base a refusal on public interest/security, but the refusal must be proportionate, ie. There must be a specific analysis of individual circumstances.
To be proportionate, one must consider:
The best interests of the child (if involved).
Fundamental rights that are at stake.
Continuation of profession.
Beneficiaries of directive name article and explain
3(1)
All Union citizens who move to or reside in a Member State other than that of which they are a national.
Their family members as defined in Article 2.2
A 3(2)
State relevant case
host Member State to facilitate the entry of other family members, not included in the Article 2(2) definition.
Rahman
Rahman
Facts: Concerned an assertion that the UK was refusing a large volume of residency applications in a summary way.
Issue: Is there an obligation on member states to accept all applications of residency or do they have some sort of discretion?
Held: Member states do have some discretion to refuse: There is no blanket requirement to accept every request.
Exception: Must accept members that fall under Article 2.2.
Depending on the right of residence in that member state, there may be a smaller pool of members that an individual can bring with them into the country.
To refuse an application:
Must present reasons for the refusal.
Must be based on an extensive analysis of the circumstances of the case and the personal circumstances of the individual.
NB: Cannot make summary assessments: Must carry out investigations based on the specific facts and circumstances.
Conclusion: Member states have wide discretion to determine the criteria considered for refusal but an examination of those criteria must nonetheless take place.
KEy articles
Article 4:
The most basic requirement: Member States must afford each citizen a passport/identity card to allow them to enter into another country,
Article 4(2):
It is not permissible for the member state granting a passport to impose an exit visa in order to be able to leave the member state.
Article 5:
Right of entry on production of the passport.
Article 6
Sname caveats
General blanket right for any citizen of the EU to move to any member state.
Unrestricted right of residence of up to 3 months.
No formalities/conditions etc.
Caveats:
Article 24(2):Social Wellfare
Member states are not obliged to provide social welfare assistance during the first 3 months.
May choose to, but are not obliged.
Can subsequently decide to remove assistance with no penalty.
Article 44: Expulsion Measures
Individuals are free to travel to a member state and remain there for 3 months but could still be expelled for reasons of national security etc.
Article 7
Concerns rights of residence beyond 3 months.
Article 7(1)(b) and (c) conditions for the right of residence of EU citizens who are neither workers nor self-employed persons:
Must have sufficient resources for themselves and their families so as not to burden the social assistance system of host MS during the period of their residence
Must have comprehensive insurance coverage in the host member state.
Note: Students who are enrolled in a recognised educational establishment have a right of residence but must meet the above conditions.
Summary of people:
Workers or self-employed in that member state.
If not employed but have sufficient resources to support themselves:
Not a burden on social security of host member state
Sufficient health insurance
A student who meets the above criteria.
Family members that meet the definition under Article 2.2 and meet the above criteria.
Unemployed persosn
relevant article
Article 14(4):
If a citizen is no longer working, they have a right to social assistance while they are actively seeking work, and they have a reasonable prospect of success.
They have the right to remain beyond 3 months.
VoluntarilyInvoluntarily unemployed
If an individual is:
Temporary unable to work because of illness or accident.
Remained involuntarily unemployed and had been employed for more than 1 year and registered as a job seeker.
Involuntarily unemployed and completed fixed-term employment of less than 1 year and registered as a job seeker.
They are permitted to retain residence status for a further 6 months.
Vocational trainig
Unless involuntarily unemployed, if an individual is engaged in vocational training, they must show that the training was required for their previous employment to retain their status as a worker.
Only spouses/registered persons/dependent children will have a right of residence based on their citizenship.
Direct dependents relations above the individual, ie. Parents will not be permitted to stay.
Who can stay w student
Only their spouse/registered partner/children have rights of residence.
Sufficient resources state article and eplain
No fixed amount can be laid down
Must not be higher than the eligibility threshold for social assistance or the minimum state pension.
Personal circumstances must be taken into account.
Permanent residece
Relevant articles
In order to qualify for a permanent right of residence, one must be continually resident for more than 5 years.
12/13//16
A 12
Right of permanent residence by family members of an EU citizen who is deceased/has departed the member state:
Right to remain subject to requirements for resources and insurance.
The right of residence is on a purely personal basis.
A 13
Right of family members to remain and gain permanent residence in the event of divorce, annulment or termination of a partnership under conditions similar to Article 12:
The family member is still a resident.
Other conditions.
Name re;evant cases
Singh
NA
Singh
Facts: Involved 3 couples and the husbands were from India, Cameroon and Egypt.
They were all married to EU citizens from Latvia, Germany and Lithuania.
All three couples were going through divorce proceedings after living together in Ireland for a period of over 4 years.
The wives leave their husbands and seek divorce in other member states, ie. Lithuania/Latvia/UK.
They all leave their husbands in Ireland.
When their spouses left they no longer had a right to remain in the jurisdiction because their member state spouse was no longer present there.
Issues: Was their right of residence terminated?
Did it terminate when their wife left Ireland/ when the divorce had been finalised?
Whether rights under articles 7/12/13.can persist when the anchor EU citizen has departed the member state?
Held: Where divorce proceedings have started in regards to a marriage that has lasted 3 years and where one partner is an EU citizen, the non-citizen retains a right of residence after the divorce on the condition that on the date of the commencement of the proceedings, the spouses are in the same country.
Conclusion: The wives had left prior to the commencement of the divorce proceedings and therefore the spouses had lost their right of residence.
Na
Facts: Concerned a 3rd country national who was married to an EU citizen and then got divorced.
The 3rd country national was the primary carer for their child.
Issue: Whether the non-EU citizen could retain her right of residence in a host member state following her husband’s departure.
Held: Reiterated that in accordance with Article 7, the EU citizen spouse must reside in the member state until the divorce proceedings have begun.
However, in this case, Article 12 was relevant as the child was entitled to education within the EU as a citizen
Where an EU citizen child is under the care of their non-EU citizen parent, the parent is entitled to a right of residence until the child can conclude their education.
Conclusion: The child would be deprived of their right to education if their mother was not granted a right of residence.
Singh v NA
This case differentiated from Singh as a minor child was involved.
A broader human rights context was applied.
A 15
Procedural safeguards for refusing to recognise a right of residence:
Public Policy/Security/Health.
CJEU takes a restrictive approach to both public policy and security.
A 30/31
relevant case
Must be notified of a decision of expulsion.
Must include:
Implication of the decision.
Reasons for the decision.
Article 31:
Right to challenge the decision and have objections be heard.
Staatiscretary Jusstite
Facts: Involves a Polish national who was residing in the Netherlands illegally because he was subject to several expulsion decisions.
The debate centred around the fact that he seeks compensation on the assertion that he was unlawfully detained despite the fact that he had been rightly expelled.
Issue: Does he have a right to reenter the jurisdiction following the expiry of the 3-month period?
Argument: If he got kicked out, he could spend 3 months in another jurisdiction and then return for another 3 months without restriction.
Referring court: This would make a mockery of the system as they would have to kick him out every 3 months and then he could just come back a few days later.
Issue: If the referring authorities have complied with all of the requirements under Articles 30/31, could they remove him permanently or have to engage in that cycle?
Held: It is necessary to have regard to the objective of the provisions and underlying treaty articles.
The union was created for citizens to move freely around member states but this freedom is not unlimited.
An individual can be expelled for reasons of public policy/security/health.
It would make a mockery of the system if the applicant were allowed to continuously re-enter after being expelled.
This is because it would make it so that member states have no right to regulate entry/exit.
Conclusion: This undermines the goals of the 2004 directive: Member states have the discretion to determine entry and exit with justified reasons.
Underlying Principle:
Member states are allowed to regulate who remains and who doesn’t remain within the jurisdiction because a host member state should not be subject to an influx of individuals and not have a means of removing them.
Article 16 explains and state the case
Sets out a general rule of governing EU citizens and their families in relation to permanent residence.
Must establish:
They have been resident in the host state permanently and continuously for 5 years.
Land berlin
Land berlin
Facts: Concerned a couple and their children.
The husband was from East Germany and obtained residence in West Germany before the fall of the Berlin Wall.
The wife was a resident of Hungary and moved to Germany in 1989.
She had 2 children from a previous relationship where the father was Turkish.
She meets her husband and establishes their family.
In 2005 they sought to become permanent residents.
The applications were refused initially but the husbands was later granted.
Calculation of the 5-year period:
It is calculated for individual citizens of other member states.
There were questions as to whether she was an EU citizen such that the 5 year period could be calculated as Hungary only became a member of the EU in 2004.
Argument: As Hungary only became a member in 2004, the 5-year time period could only start then.
Issue: The couple also couldn’t prove that they had sufficient resources that would allow them to remain in the more broad category of residence.
Held: Periods of residence completed by a national of a non-member state in a member state before accession in the absence of specific provisions mandating that calculations must begin from the date of accession, should be taken into account for the purposes of Article 16(4).
Every time a new member state is added to the Union, it is as if they have always been part of it.
Unless there’s a specific provision from the newly established member state mandating that time should only be accounted for after accession, the applicant can apply for permanent residency based on all the time they have been resident in the country.
A 17
If an individual has worked in the union for at least 1 year and has been a resident in the member state for 3 years before retiring, they may be entitled to a reduced period of 3 years before they can claim permanent residence.
Conditions of residence on
state areas of concern stat cases
- Economically Active Individuals:
Conditions are imposed on economically active individuals (e.g., workers, self-employed).
To retain the right of residence, the economic activity must be genuine and effective.
Access to social assistance can be limited if the economic activity is minimal or ceases. - Family Members Seeking Citizenship or Residence:
Controversies arise when individuals attempt to gain citizenship or the right of residence through a family member.
Two especially sensitive situations:
(a) Where an individual seeks residence or citizenship based on a relationship with a family member who is a citizen of the Union.
(b) Where the “anchor” family member (the citizen) has left the host Member State, yet the individual still seeks to remain in the Union based on that prior relationship.
Baumbast
Zhu and chen
Baumbast
Facts: Concerned a husband who was a citizen of Germany and his wife was Colombian.
They were married and were living in the UK for 3 years together.
The husband was first employed and then became self-employed, and remained economically active.
His business takes off and he spends large periods of time outside of the EU whilst his wife remains in the UK with their children.
They remained married but he was not permanently resident in the EU due to the nature of his work.
The entire family had health insurance provided to them by the state.
However, the insurance did not cover emergency admission or accident cover.
They had sufficient resources such that they would not be a burden on the state.
The wife sought to renew their residence permits but was refused and told to leave as her husband was no longer a resident and they did not have sufficient health insurance.
Issue: Whether the applicants enjoy an autonomous right of residence under Article 21 TFEU where the husband is still a citizen of the EU but is no longer considered a worker as he is no longer active within the union.
Held: Members of the Union do not need to pursue a professional/ trade activity whether as employed/self-employed in order to enjoy the rights of citizenship
Nothing in the treaties suggests that if one moves to another member state to pursue an activity and then ceases that activity, they will be stripped of their rights.
Article 21 creates autonomous rights: There was a directly effective right of residence.
Conclusion: There was no indication that they had become a burden on the host member state.
Given that and the period of residence and employment, it would be disproportionate to refuse to recognise his treaty rights of residence simply on the ground that illness insurance was insufficient.
Zhu and Chen
Facts: Concerned a Chinese national who moved to the UK and then moved to Northern Ireland briefly to give birth to her child.
This was to ensure that the child gained birthright citizenship.
The applicant later made an application for a long-term residence permit on the basis of her child’s citizenship.
There was a dispute about whether she could do so as her daughter was not exercising any EU law rights, and her mother had no such rights.
Issue: Whether the applicant could use her child under Article 7 of the directive as an anchor to tie her right of residence?
Factors to consider:
Both the child and mother have adequate health insurance.
The mother is claiming that she is a dependent relative, but she is not.
Issue: She’s not a dependent child or partner of an EU citizen.
She is a direct ascendant relative.
Held:
The Directive guarantees the right of residence to dependent relatives in the ascending line of the holder of a right of residence.
However, this provision does not confer a right of residence on a third-country national who is not dependent on the EU citizen child, but rather the one providing care.
“Dependent” status refers to a factual situation in which the family member is materially supported by the EU citizen.
In Chen, the situation is reversed: the child is dependent on her non-EU national mother, who is the primary carer.
Mrs. Chen cannot claim a right of residence under the Directive as a dependent relative of her daughter.
However, refusing the mother the right to reside in the host Member State would effectively deprive the EU citizen child of her rights under Article 21 TFEU and the Directive.
Justification:
The effective enjoyment of a child’s EU rights necessarily implies the child must be able to reside with their primary carer.
A young child cannot meaningfully exercise a right of residence without being accompanied by their parent or legal guardian.
Thus, to give full effect to the child’s EU citizenship rights, the primary carer must also be granted a derivative right of residence.
Conclusion:
While Mrs. Chen did not qualify as a dependent relative under the literal terms of the directive, she must be allowed to reside in the host Member State so that her EU citizen child can exercise her right of residence.
Denying the mother’s residence would frustrate the purpose and effectiveness of EU citizenship rights, particularly for minor dependents.
Anti-discrimination state reasons why it’s relevant
- To make free movement real and effective:
EU citizens must be able to move to another Member State and live under the same conditions as the nationals of that country.
Example: If someone moves to Germany, they should be able to find a job and access benefits like a German citizen would.
Without this, people would be less likely to move, and free movement wouldn’t work in practice. - Equality and fairness across Member States:
While the principle of equal treatment is important, Member States still have some discretion over what kinds of social benefits or services they offer.
The key question is: Can a Member State refuse certain benefits to non-nationals? And under what conditions?
The EU must avoid a situation where one country offers much better rights than another, creating imbalances.
What article and whta does it provide
Article 24
Gives EU citizens the right to equal treatment in the host Member State.
However, it is not an unlimited right: there are exceptions and qualifications.
State cases on directive
Garcia
Garcia
Facts: Concerned a Belgian national who was married to a Spanish national.
They established themselves in Belgium and had 2 children who were Belgian citizens.
They wished to have their names registered in the Spanish style,ie. Both surnames combined.
The Belgian law at the time only permitted one name to be registered so they were refused.
The decision was challenged before the national courts and referred to the CJEU.
Issue: Was the refusal to register the names a restriction of Article 20 TFEU and a breach of non-discrimination and equal treatment?
Held: It is for national jurisdictions to decide how to regulate certain matters like births/deaths/marriages.
However, in this particular instance, a member state has to comply with EU law and in particular Articles guaranteeing free movement.
On that basis, they may be required to recognise the names.
Conclusion: The inability to register and recognise a dual surname would impede the right to freedom of movement.
State cases on non economically active persons
Martinez sala
Trohani
Brey Dano
Alimancovic
Martinez sala
Facts: Concerned a Spanish national who has been living in Germany since 1968.
She has been in receipt of social welfare since 1989.
She had a residence permit in Germany.
She applied in 1994 for her permit to be renewed and received documentation confirming her renewal.
With those documents, she applies for social assistance benefits and is refused on the basis that she is not a resident.
Issue: There is no question that she is a resident, she just doesn’t have the documentation needed to support that.
Held: Previous emphasis on the idea of a worker begins to break down.
She is not a worker and therefore is reliant on social assistance at the moment.
Despite that, she does not necessarily have to be economically active in order to enjoy the benefits of citizenship.
She is entitled to benefits as long as she a resident: her economic activity is not the determinative factor of whether she’s eligible.
2 outcomes from martinez sala
Because she was a union citizen lawfully residing in another member state, it was deemed that she was lawfully resident under the treaties to enjoy citizenship rights.
The benefits do not only apply to economically active citizens it applies to all lawful residents.
Craig and de burca comment
Craig and De Burca:
This is quite a specific case and they question its applicability in other cases.
The CJEU did not interrogate her right to reside in Germany; it was just a case of the final documentation confirming this not arriving.
Could be a case set aside on the basis of its facts.
Trojani
Facts: Concerned French national in Belgium taking part in a reintegration programme with the Salvation Army who applied for social assistance because he was receiving very little remuneration.
NB: This was a reintegration programme and not a full-time education.
Issue: Whether the applicant can claim a right of residence where he doesn’t have sufficient resources/not a student/worker.
Can the definition be extended to include the type of activity he was engaging in?
Held:
A citizen in the applicant’s situation does not derive a right to reside in a Member State of which he is not a national from Article 20 TFEU due to lack of sufficient resources.
However, since he had already satisfied the conditions for lawful residence under Belgian law, he could rely on the EU principle of non-discrimination on the grounds of nationality to claim entitlement to social welfare benefits available to nationals of that Member State, even though he did not have an independent right of residence under EU law.
Argument: He held a residence permit and based on that permit, he should be granted social assistance at a limited level.
Held: The Court agreed.
To claim a right of residence as a worker, it must be shown that the paid activity is “real and genuine”, ie. the person is engaging in actual work for compensation.
Even if the earnings are not enough to fully support oneself, the individual may still be entitled to social assistance.
Beyond 3 Months:
In situations where an individual no longer meets the conditions for lawful residence, a Member State retains the discretion to remove that person.
However, the mere fact that someone applies for social assistance does not, by itself, justify the revocation of residence rights.
The revocation must be based on a separate failure to meet another requirement.
brey
Facts: The member state law required that immigrants must, following the expiration of a 3-month period of residence provided for EU citizens, have sufficient resources.
This was partly determined by whether or not the individual was seeking social assistance.
Issue: Post 2004 directive, has the landscape changed?
Is applying for social assistance something to take into account?
Held: Member states are entitled to take into account someone’s application for/ reliance on social assistance but it can’t be determinative when determining a right of residence.
NB: Member states aren’t obliged to provide social assistance within the initial 3-month period.
There is no obligation to provide any kind of social assistance, but if they do provide it and then decide to revoke it, this cannot be the basis on which an individual is declined residence.
Factors to be considered:
Amount/ regularity of someone’s income.
Certain factors that are taken into account in granting the resident permit.
Period in which benefits are supplied.
Note: A self-employed person may receive no income for 3 months but then sufficient finance in one month to suffice
Those kinds of considerations have to be taken into account.
Dano
Facts: Concerned an economically inactive citizen in Germany who was seeking social assistance benefits and contribution to heating and accommodation.
She was a Romanian national so she was a citizen of the Union.
She was refused on the basis that citizens of other member states who do not have a right of residence cannot seek those benefits.
She had been resident in Germany for longer than 3 months but was not economically active nor did she come to Germany to seek work.
She resides with her sister who financially supports her, her son and herself.
She claims that the refusal of benefits violates her rights under Article 24 of the Directive.
Held: The Directive provides that all citizens presiding in a member state enjoy equal treatment rights.
If residence is more than three months and less than five, Article 24 is triggered.
However, the citizen seeking equal treatment and access to benefits has to show that they are a lawful resident.
Those conditions under Article 7 include that if someone is not economically active, they must prove that they have sufficient resources/a student/health insurance etc.
P74: To accept persons who do not have a right of residence as qualifying for social assistance would run counter to the directive.
Must balance the right to freedom of movement with burdens on social assistance.
P78: Member States must be able to refuse the grant of social benefits to economically inactive Union citizens who solely move to obtain another member state’s social assistance even though they do not have sufficient resources to claim them a right of residence.
Alimanovic
Facts: Concerned a Swedish national with children who were born in Germany but were Swedish citizens.
The family applied for German social welfare benefits, specifically benefits for individuals who were long-term unemployed and unfit for work.
The oldest daughter had a history of temporary employment but was not employed during the period she applied for benefits.
The German authorities refused to grant the benefits, and the case was referred to the CJEU for a preliminary ruling.
Held: EU member states could refuse social welfare benefits to EU citizens who were not lawfully resident in the host country or who did not fulfil the criteria of being a worker as defined under EU law.
The entitlement to social assistance benefits could be denied to those who moved to another member state solely to access such benefits, as this would undermine the objective of maintaining a stable workforce and avoid welfare tourism.
NB: A member state must take into account the individual circumstances of each case.
What are wholly internal situations
No cross border element
The right of free movement for citizens requires that someone has moved, ie. From the member state of citizenship to another host member state.
Wholly internal situations involve cases that dispute measures that only affect movement within a member state and not their freedom to go somewhere else.
State contorversial case
Garcia avello
Garcia avello
Facts: Concerned a challenge to a Belgian rule prohibiting a change in a registered surname where the father’s surname was required to be registered on the child’s birth.
The applicant’s children wished to have their Spanish mother’s name registered also.
The applicants alleged they had suffered discrimination against Belgian nationals.
Belgium: This was a wholly internal situation as they were Belgian nationals exercising a right against the Belgian state.
Held: Not a wholly internal situation despite the children being Belgian and making a claim against Belgium.
It is not permissible to impose some restriction on the recognition of another nationality.
Conclusion: Consituted discrimination.
Criticism: On its face, the case was wholly internal.
Name other cases on WIS
R v Ann sanders
Ruiz Zambarano
McCarthy
Dereci
OSL
O and B
CS
Redon MArin
Chavez Vilchez
R v Ann sanders
Facts: Involves a Northern Irish national who is convicted of a criminal offence before the court of England and Wales.
As part of a penalty, a travel restriction for a period of 3 years was implemented.
He was obliged to return to NI and not reenter England or Wales.
He could still go to other countries.
Argument: This restricted his right to free movement under Article 20 and the Directive.
Issue: Whether his freedom of movement was unduly restricted.
UK: This didn’t involve his right to freedom of movement as he was still in the UK.
Held: A member state can deprive or restrict freedom of movement within its own jurisdiction as part of a penal measure imposed by law and by reason of acts committed in that territory.
Conclusion: The matter was wholly internal.
Ruiz Zambrano
Facts: Concerned Columbian parents who sought asylum in Belgium.
Their asylum application was refused but they were allowed to stay subject to restrictions due to non-refoulment.
Restriction: Not allowed to work.
Had 2 children during this time and the children were given birthright citizenship.
The husband takes up work despite the restriction and pays taxes.
He then became unemployed and sought social assistance benefits which were refused.
Argument: Entitled to social assistance based on the derived right of residence as a result of his children’s status as citizens.
Issue: Is the situation wholly internal?
Whether in circumstances where children are Belgian citizens and haven’t left Belgium, Articles 20 and 21 can be invoked so the parents get a right to reside.
Member state intervention: 8 other member states argued that because the children never left the jurisdiction, this was a wholly internal situation.
Held:
EU citizenship is designed to be a fundamental status of individuals in the EU.
Under Article 20 TFEU, there cannot be national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of their rights as citizens
It must be assumed that refusing parental residence would deprive the children of their EU rights and force them to leave the EU.
On that basis and despite the fact that the children did not leave the jurisdiction, the matter was not considered wholly internal.
Conclusion: The compulsion of moving them out of the union makes the matter not wholly internal.
McCarthy
Facts: Concerned a dual British and Irish national who never lived in Ireland and lives in England.
Married a Jamaican and tried to secure them a right of residence in the UK on the basis that he was a dependent family member under the Directive.
The application was refused at a national level because McCarthy had never left the UK.
UK argument: This was a wholly internal situation.
Held: Differentiated on the levels of dependence:
Zambrano: If the non-EU citizen does not remain, the EU citizen would effectively be removed from the union.
McCarthy: If the non-EU citizen does not remain, her citizenship rights are not frustrated; it may only affect her relationship.
Note: If McCarthy had moved somewhere else, the decision may have been different.
Conclusion: The situation was wholly internal.
Dereci
Facts: Concerned Austrian residents, children and partners, who were seeking to have their non-EU adult family members join them.
They were denied by the Austrian authorities.
The Austrian family members never left Austria.
Issue: Is it a wholly internal situation?
Held: Citizens can directly invoke Article 20 TFEU against their own member state even if they have not left the jurisdiction if the measure they’re objecting to has the effect of depriving them of the use and enjoyment of their citizenship rights.
A denial of citizenship rights would only happen when an EU citizen would not only have to leave their member state but would have to leave the EU as a whole.
NB: Just because it’s desirable from an economic/family perspective that they can reside in a state doesn’t mean that they are being forced out of the EU/ their rights are being obstructed.
Has to be more than undesirable for someone to leave; it has to go to the essence of the right.
Conclusion: None of the non-EU nationals were dependent on the Austrian citizens.
However, the issue of dependence was to be determined by the individual member state.
Depriving of citizenship rights needs to be more than an inconvenience, it must be a denial of substance and a fundamental right.
Note: Seen as applying as a retreat from harsher Zambrano/more flexible.
O S L
Facts: Concerned blended families living in Finland.
The children were Finnish with Finnish fathers and their mothers were all 3rd country nationals.
The mothers all have sole custody, enter into new relationships with other 3rd country nationals, and have additional children.
The fathers of the EU children were set apart because they had no custody rights.
Situation: The new spouses of the mothers are refused residence rights, and as a result, the families have a situation where there are Finnish children, a mother with sole custody and stepfathers and half-siblings with no right to reside.
Issue: Whether the refusal of residence frustrates the citizenship rights of the Finnish children.
Held: The CJEU noted that the test in Zombrano is strict and can only be met in exceptional circumstances.
Cited Zambrano: It is for member states to decide whether the refusal of a right of residence would frustrate the citizenship rights.
Gave guidance on factors to consider in regards to blended families:
- Custody:
Whether a parent has been granted sole custody.
Joint custody: This will be considered international child abduction if the child is removed from the state without the consent of the other parent. - Preservation of the family unit:
Not just focusing on the new blended family but also the importance of remaining in contact with biological parents who do not have custody.
Acknowledged the fundamental rights of children to maintain relationships with their biological parents.
NB: Not just blood relationships are important, the relationship between the child and step-parent is also equally important and must be considered. - Preferability v Frustration:
Just because it is preferable for a family to live in a particular jurisdiction does not mean that their citizenship rights are being violated.
The desire to live together as a family is important but not decisive on its own.
What was very important was the degree of legal, financial, and emotional dependency on EU citizens.
Result: The Zambrano test is still correct, it remains for national courts to decide whether the EU citizen is being denied their genuine enjoyment of EU rights because of the refusal of residence to the non-EU family member.
O and B
Facts: Concerned 2 couples where the non-Eu partner and EU citizen would live in different member states of the union at different times.
They lived together in Spain for 2 months and then the EU spouse returned to the Netherlands and the other lived in Belgium.
The spouse in the Netherlands would spend weekends in Belgium.
They sought for the non-EU partner to obtain residence in the Netherlands.
Held: The refusal to confer a derived right of residence on a family member where the EU citizen lived with them in another member state and now seeks to return to home state could create an obstacle to Treaty rights under Article 21 TFEU
It would only be an obstacle where the period of residence outside the home state was ‘sufficiently genuine as to enable that citizen to create or strengthen family life in that host state’
NB: A stay of less than 3 months elsewhere without intention to settle there would not satisfy that criterion.
CS
Facts: Concerned a Moroccan national residing in the UK with her British national son.
In 2012, she was convicted of a criminal offence and sentenced to a year in custody.
Following the conviction, she was notified that she was going to be deported.
Makes an application for asylum and the application is denied.
The Immigration Asylum Tribunal: Appeals the decision arguing that the deportation violates her son’s rights under Article 20 as a citizen of the EU.
A preliminary reference was sent to the CJEU.
Issue: Under which circumstances can a 3rd country national be expelled from a member state if they are the carer of an EU citizen who depends on them and where their expulsion can frustrate the Article 20 rights of that EU citizen?
Held: Cited Zambrano: A right of residence must be granted to a third-country national who is the carer of a minor EU citizen as the effectiveness of the EU citizenship would be undermined if not.
This is also equally applicable to citizens of the union who are over 18 and suffer an incapacity or disability as there is an equivalent level of dependence as the aforementioned.
NB: A decision on deportation cannot be solely based on a criminal record, especially when a minor child is involved.
Redon MArin
Facts: Concerned a Columbian father living in Spain.
He had a Polish-national daughter and a Spanish-national son.
His application for Spanish residence was denied based on his criminal record.
Difference to CS: If he is removed from Spain, he isn’t being removed from the union because he has a Polish child so he can seek to reside in Poland.
Although he had no family ties in Poland, but had family in Spain.
Held: Family ties must be taken into account by the court of the member state in making their assessment of a right of residence.
However, it is for the national court to determine whether that is a viable argument for the applicant to rely on.
Chavez Villez
Facts: Concerned an applicant who was a Venezuelan and went to the Netherlands on a tourist visa.
Gets into a relationship with a Dutch man and they have a child and live together in Germany for a few years.
Their relationship broke down and she was compelled to leave the family home and became the sole carer for her child.
The child’s father doesn’t contribute to the maintenance and doesn’t financially support them.
This left the applicant who was entirely responsible for the child’s upbringing.
As a result, she made numerous applications for social assistance but the Dutch authorities refused.
A reference was sent to the CJEU.
Issue 1: Under Article 20, can a 3rd country national get a right of residence if they are the primary carer of their EU citizen child?
Reason: The child would be forced to leave the union if the mother was forced to leave.
Issue 2: To what extent must a third-country national parent, claiming a right of residence on the basis of being solely responsible for a child, establish that the EU citizen parent has abandoned the child and will never resume responsibility or seek custody?
Held: Citing Zambrano: The ultimate decision lies with the national court.
However, if it were to be established that a refusal of residence would force the child outside of the union, it would be impermissible.
Factors to consider:
- Custody:
Who is the primary carer?
The possibility of the EU citizen parent recovering custody rights.
NB: Whether the other parent, as a Union citizen, is actually able and willing to assume responsibility for the care of the child.
Day-to-day care is relevant but not sufficient: it must be shown that the parent has both the desire and the capability to take on full responsibility. - The best interest of the child:
Requires an individual analysis of:
Age
Physical and emotional development.
The extent of emotional ties with both parents.
The risks associated with taking the child away from their 3rd country national parent.
