Directive 2004/38 Flashcards
Article 16(1)
Union citizens
Article 16(2)
Family members of Union citizens
Article 16(3)
Continuity of residence
Article 16(4)
Loss of permanent residency
Article 17
Early acquisition of residency
Article 23
Employment rights of family members
Gül
Cypriot doctor married to British woman living in Germany. Refusal by German authorities to allow Gül to work was infringement of free movement of rights - take up employment under the same conditions as nationals of the host state.
Article 24
Equal treatment
Article 24(1)
General rule - EU citizens and family members
Article 24(2)
Derogations - During the initial 3 months, jobseekers, students
Bidar
CJEU held that Article 18 TFEU conferred equality in relation to loans and grants although a certain degree of integration into society would be justified.
Forster
Requirement of at least 5 years uninterrupted lawful residence before claiming a maintenance grant may be justified.
Article 45(3) TFEU & Directive 2004/38/EC
Restrictions on the rights of entry and residence
Article 27
Public policy and Public security
Article 27(2)
- Measures taken on grounds of public policy and public security must be proportionate and based exclusively on the personal conduct of the individual concerned.
- The personal conduct of the individual concerned must represent a genuine, present and sufficiency serious that affecting one of the fundamental interests of society (Article 27(2)).
- Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.
- Previous criminal convictions shall not in themselves constitute grounds for taking such measures.
Van Duyn
CJEU held that present association with an organisation may constitute personal conduct.
Astrid Proll v ECO Düsseldorf (Immigration Appeal Tribunal)
Reformed terrorist.
Donatella Calfa
Italian tourist could not be expelled for life from Greece for drugs offence.
R v Bouchereau
B had more than one conviction for drugs offences. However, in each case he had been in possession of only a small number of drugs and therefore he didn’t pose a genuine and sufficiently serious threat.
Adoui & Cornuaille v Belgian State
French sex-workers could not be deported from Belgium as Belgian sex-workers not prosecuted just for being sex-workers.
Bonsignore v Oberstadtdirektor of the City of Cologne
B had accidentally killed his brother by the negligent handling of a firearm. CJEU emphasised that deportation as a deterrent or general preventative measure is prohibited.
Article 27(3)
State can request a police record in certain circumstances.
Article 28(2)
Protection against expulsion (permanent residence)
‘The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security’
Article 28(3)
Protection against expulsion (10-year residence/ minors)
Article 29 ((1)-(3))
Pubic health
Article 30-33
- The right to be notified fully in writing. Notification of the appeals process and any relevant time limits.
- After a reasonable period has passed, an application for the lifting of an expulsion order can be made.
- In any event this can be done after 3 years from enforcement. Until the application has been accepted, there is no right of re-entry.
Key issues - Free movement of people
- Proposed length of residence? Up to 3 months, longer or permanently.
- Status? EU Citizen? Worker/student/other? Conditions?
- Rights? What do they want to do?
- Documentation? Exit/entry/during residence.
- Restrictions? Public policy, security, health? Employment in public service?
Typical issues on immigration/ migration: Internal and external aspects
- Brexit implications: rights of EU citizens in Uk, rights of Uk citizens living in the EU member states, free movement in the future.
- Asylum seekers and border controls.
