EU law Flashcards
Amos & Theophilus v SSHD [2011] EWCA Civ 552
RoR case - difficulties proving EU spouse had RoR
Amos and Theophilus could not provide evidence that their ex-spouses had PR / were QP - so, they could not prove they had a RoR.
Amos = Nigerian TCN married to French worker in UK. They divorced. Amos applied for a PRC, but could not prove ex-wife had been working for 5 years.
Theophilus could not show her ex-husband was working (and so a QP) at the time divorce proceedings were initiated.
Ms Theophilus could have a) applied for a witness summons for her ex-husband to give evidence on whether he was working, or b) sought a direction for the SoS to supply information necessary to the determination of her appeal.
SSHD is not bound to make enquiries of other gov departmnets.
Judgment in Case C-218/14
Kuldip Singh and Others v Minister for Justice and Equality
RoR - QP leaving the HMS before initiating divorce.
Three third country nationals (from India, Cameroon and Egypt) were married to EU citizens (from
Latvia, Germany and Lithuania) and lived with them in Ireland for over four years. In all three cases
the wife left her husband, left Ireland and sought a divorce in her own country (except for the
German citizen, who petitioned for divorce in the United Kingdom). The Irish authorities took the
view that, since the EU citizens had already left Ireland when the divorces were sought, the three
foreign husbands no longer had a right of residence in Ireland.
…
Consequently, if before the start of those proceedings the EU citizen leaves the
host Member State in which his or her foreign spouse resides, the spouse’s right of
residence in that State cannot be retained under Article 13(2) of the directive
Baigazieva v SSHD [2018] EWCA Civ 1088
in the case of family members who have retained the right of residence, a family member who was previously married to, or the civil partner of, an EEA national need only demonstrate that that EEA national was a qualified person until the time immediately prior to the initiation of proceedings for the termination of the marriage or the civil partnership.
TFEU Art 20
- Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
- Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
(a) the right to move and reside freely within the territory of the Member States;
(b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;
(c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;
(d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.
These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.
TFEU Art 21
Article 21
(ex Article 18 TEC)
- Every 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 laid down in the Treaties and by the measures adopted to give them effect.
- If action by the Union should prove necessary to attain this objective and the Treaties have not provided the necessary powers, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1.
- For the same purposes as those referred to in paragraph 1 and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt measures concerning social security or social protection. The Council shall act unanimously after consulting the European Parliament.
TFEU / Treaty of Rome - originally signed in Rome in 1957 as the Treaty establishing the European Economic Community (TEC)
Internal Market
Free Movement of Goods
Free Movement of persons, services, capital
Area of Freedom, Security, and Justice
Treaty on European Union / Maastricht Treaty - originally signed in Maastrict in 1992
Aims
Internal Market
Euro
Principles of subsidiarity, conferral, proportionality
Binds to Charter of Fundamental rights and ECHR
Institutions
TFEU Art 45
Article 45
(ex Article 39 TEC)
- Freedom of movement for workers shall be secured within the Union.
- Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
- It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission. - The provisions of this Article shall not apply to employment in the public service.
TFEU Art 56
SERVICES
Article 56
(ex Article 49 TEC)
Within the framework of the provisions set out below, restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended.
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may extend the provisions of the Chapter to nationals of a third country who provide services and who are established within the Union.
