Free movement of people

Question 1

Grzelczyk

Answer 1

Art 18, 20 and 21 must be read together.

Question 2

Baumbast

Answer 2

german citizen who worked in UK, the family continues to live in the uK, they do not rely on social welfare. Held: After finished working in post member state, your family continue residing and what does it mean to not be a burden on Member state.

 1) You should have comprehensive insurance 1) And sufficient funds

Question 3

Micheletti

Answer 3

Cannot impose any limitations on nationality.

Question 4

Avello

Answer 4

Belgium children who are also Spanish nationality, they did not move, but they applied to register their double surname in Belgium
Belgium did not want to allow registration of double surnames. Court held that Belgium cannot do that, the MS has to take into account their dual citizenship, the court went through the exercise that in the future these children might want to move across EU, if MS refuses to register their surname it might have different documents in Span with the correct surname, this will cause confusion and inconvenience for them in case they want to exercise their free movement rights. Even though this involved just one state, there was a cross boarder element because of the dual nationality.

Question 5

Zhu and Chen

Answer 5

Chinese baby born to Chinese mother in northern Ireland, at this time republic of Ireland gave nationality to anyone on the northern Ireland. Chinese mother never left territory, baby acquired Irish citizenship. Can they continue living in the UK? Mother came to UK wanted to have another child so travelled to UK. Relying on EU law gave her the free option. Held: there is an informal policy in UK to not refer immigration policy from UK to CJEU. Case gets referred to CJEU saying abuse of rights. Ireland and UK says that they cannot reside here because she is not a worker, she has never physically crossed any boarders. Court held: there does not have to be a crossing of boarders all that there needs is that EU citizen is exercising its EU rights, she is a citizen of Ireland. As a citizen she does not have to work. Her mother can reside with her because if you do not allow her mother to reside with her, her citizenship is not really there. Citizenship will catch those citizens who are not mobile citizens.

EU Citizens resources do not need to be their own but can come from another.

Question 6

Micheletti

Answer 6

Have to recognise nationality granted by another MS.

Question 7

Avello

Answer 7

citizenship rights based on dual nationality even though A had never left the home State – also fundamental right to one’s own identity

Question 8

Zhu and Chen

Answer 8

applies even if another ‘home’ MS grants nationality to a child born in the ‘host’ MS – rights of the EUC child extend to TCN FMs (parents) - intention of the parties is irrelevant - but see Art 35 CRD on ‘abuse of rights’.

Question 9

Uecker and Jacquet

Answer 9

wholly internal situation or ‘reverse discrimination’ – home MS discrimination against TCN FMs of its own nationals - no connection with EU law because free movement rights not exercised - outside personal scope of the Treaties.

Question 10

Saunders

Answer 10

Someone tried to challenge a restriction of movement on their state because of criminal conviction. Court accepted that this had nothing to do with EU law.

Question 11

Morson and Jhanjan

Answer 11

Two Dutch citizens, did not move, have not exercise rights in any other MS. But they tried to bring their mothers to live with them. Held: no EU law element this is purely international situation. If they had moved to another MS then the issue would be different.

Question 12

Uecker and Jacquet

Answer 12

where the third-country national wives of German nationals working in Germany sought to rely on EC law, (as the wives of German workers). The Court found that the situation of the applicants was purely internal to Germany as their husbands had not exercised their freedom to move and work in other Member States and, consequently, a right could not be derived from EC law.

Question 13

Rottmann

Answer 13

– Austrian who acquired German citizenship. When he acquired German citizenship he gave up Austrian citizenship. Germany discovered that he did not disclose the fact that he had criminal proceedings in Austria. Germany decided to revoke the citizenship. Court held: matter of EU law because affects scope of his EU law rights, takes away his EU law rights. But this does not mean Germany could not revoke his nationality. The situation of a citizen of the Union becoming stateless as a result of withdrawal of his nationality nevertheless comes within the ambit of European Union law. In fact, the person concerned in this way loses the status of citizen of the Union conferred by Article 20 of the TFEU, which is intended to be the fundamental status of nationals of the Member States

Question 14

Zambrano

Answer 14

Columbian couple lived in Belgium and had children who were Belgium nationality. Fathers residence became effected. Where is element of trans boarder element? Third country national parents rights are involved. If Belgium refused to grant the parents rights, the children would have to leave Belgium and go back to Columbia where there was a war. Held: enjoyment of citizenship will be affected, citizenship would be meaningless to children if they leave the EU. Deny residence to parents you deny benefits of children’s citizenships. Similar to Zhu and Chen but here no cross boarder element. The fact is that citizens of EU will be practically losing citizenships in the benefits. Even though wholly internal situations do not trigger Eu citizenship provisions, the enjoyment of these rights are affected. Therefore, wholly internal. The Court of Justice seems to have held that the parents of a child who is a national of a Member State must be granted the right to work and the right of residence in that Member State in order to protect the right of the child to live in Europe. Court held that Article 20 TFEU precludes a Member State from denying residence to the third country national parent of an EU citizen child, notwithstanding that that EU citizen had yet to exercise his right of free movement within the Union, ‘in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen’.

Question 15

McCarthy

Answer 15

A step back in subsequent cases

• : no danger of leaving the territory of the MS. Lady who is Irish UK citizen, lived in UK all her life, jamacian husband, she tried to bring him to the UK. Court held that this is not like Zambrano, enjoyment of EU citizen rights are not effected. No way that if husband does not come to UK you will have to leave EU. Enjoyment of rights not the same. Also older woman not small children.

Question 16

Dereci

Answer 16

A step back in subsequent cases

• threat of leaving not only the MS, but also the EU territory. Austrian citizens tried to bring Turkish citizens to Austria. They never moved anywhere. Purely internal situation. Courts held unlike Zambrano, no danger to leave your own MS but also would not leave EU. In Zambrano it was drastic because children would leave EU all together.

Question 17

O and S

Answer 17

A step back in subsequent cases

• Zambrano test is strict and would be met ‘exceptionally’ Zambrano will apply exceptionally. Wholly internal situations are still not covered. In O and S, there were Finnish children, the mother wanted her third country national partner to come to England, she tried to bring their third national partners, the court did not allow it as a starting point, especially as the children were not dependant on the partners of their mothers. The question here was EU citizens, can foreign national mothers bring their third national partners to England? This is a wholly internal situation. The enjoyment of rights were not effected because the enjoyment of rights were not affected by the mothers partners, financially or emotionally. If they did then it might be different.

Question 18

Rottman

Answer 18

a MS only has autonomy to revoke nationality and hence EUC status under Art 20 TFEU if such a revocation is a proportionate sanction for obtaining that nationality by intentional deception. So the withdrawal of nationality status – and hence EUC status - is subject to general principles of law must be consistent with proportionality and fundamental rights because it is the basis for acquiring the fundamental status of EU citizenship.

Question 19

Zambrano

Answer 19

– children of TCN (Columbian) asylum seekers born in Belgium and acquired Belgian nationality, therefore EUCs. Father challenged refusal of Belgium to grant him a residence permit and unemployment benefit – as an ascendant of a EUC he should be entitled to reside and work in Belgium. Seven MSs intervened to support Belgium’s argument that, as the children had never exercised their right to free movement, the situation was outside the scope of EU law – wholly internal to the home MS.
Held: CRD did not apply – requires exercise of free movement – but the ‘fundamental status’ of Union citizenship under Art 20 ‘precludes national measures which have the effect of depriving [EUC’s] of the genuine enjoyment of the substance of [their] rights’ – but distinguished on its facts in:
McCarthy [2011]

Question 20

Dereci

Answer 20

the criterion relating to the denial of the genuine enjoyment of the substance of such rights refers to situations in which the Union citizen has, in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole

Question 21

Zambrano

Answer 21

the Court held that the Colombian parents of two Belgian children – born and raised in Belgium and who had never exercised free movement rights – could not be denied residence and work permits where it would have the effect ofdepriving the Union citizens the genuine enjoyment of the substance of the rightsconferred by their status as EU citizens.
Zambranoeffectively redefined the scope of application of EU law, extending its reach to an otherwise “purely internal situation” and avoiding reverse discrimination by dispensing with the cross-border element usually required to trigger EU law.
However, the Court gave little indication as to what the “genuine enjoyment/substance of rights” test might entail, save a cryptic reference toRottmann,a case where the threatened loss of German citizenship, resulting in statelessness, in an otherwise internal situation was found to fall within the scope of EU law “by reason of its nature and its consequences”.
The subsequent cases ofMcCarthyandDereci,which sought to whittle down theZambranotest, further muddied the conceptual waters. They emphasized that cross-border movement remained a pre-requisite, unless theZambranotest could be satisfied.
InMcCarthy,the Court held that the refusal to grant a UK residence permit to the Jamaican husband of a woman with dual Irish/UK nationality didnotdeprive her of the substance of her citizenship rights (Helena Wray has appositelycontrastedMcCarthywith the decision inIbrahim).

Question 22

De Cuyper

Answer 22

scope of Art 21 TFEU extends to those situations where there is a link with the exercise of the right of exit, entry or re-entry – see Arts 4 and 5 CRD:

restriction by a home MS on its own nationals’ right of exit

Question 23

Surinder Singh

Answer 23

scope of Art 21 TFEU extends to those situations where there is a link with the exercise of the right of exit, entry or re-entry – see Arts 4 and 5 CRD:

restriction by a home MS on its own nationals’ right of return/re-entry

Question 24

Eind

Answer 24

scope of Art 21 TFEU extends to those situations where there is a link with the exercise of the right of exit, entry or re-entry – see Arts 4 and 5 CRD:

includes home MS restrictions on TCN FMs of its returning nationals

Question 25

Metock

Answer 25

The migration status of the third country national spouse of a Union migrant is irrelevant for the purposes of the directive. Provided the marriage is genuine, the spouse acquires a right to resided.

TCN spouse or partner of EUC is not required to have ‘prior lawful residence’ in a MS before joining the EUC in the host MS – therefore TCN spouse who was an asylum seeker could join EUC – were not sham marriages under Art 35 CRD

Question 26

Sean Ambrose McCarthy

Answer 26

scope of Art 21 TFEU extends to those situations where there is a link with the exercise of the right of exit, entry or re-entry – see Arts 4 and 5 CRD:

right of entry of TCN FM – cannot be required to obtain a visa to enter the host MS if they hold a residence card as a family member of an EUC

Question 27

Baumbast

Answer 27

Art 21(1) TFEU creates a directly effective right of residence for all EUCs derived from their nationality of a Member State

Question 28

Ziolkowski

Answer 28

Polish people living in Germany. Poland joined Eu in 2004, after they did this, these citizens applied to right for permanent residence. 1) For certain periods of those years, they did not have sufficient means to support themselves. Therefore, can they acquire permeant resident as they have not satisfied conditions in art 7? Should these periods count towards the residence? Court suggests probably not because they should have been compliant with conditions for lawful residence. Therefore, if you reside as a worker for 5 years this is fine, but if you are an economically non active member you had to comply with the conditions

Question 29

Onuekwere

Answer 29

Time spent in prison does not count.

What about if someone goes to prison, do this count towards permanent residence? Court held: it should not because public policy matter, rights can be restricted. Time spent in prison cannot be considered as lawful residence. Nigerian man convicted and spent years in prison, but he was married to Irish citizen exercising her right of movement in the UK, he is a family member for purposes of EU law. Right of family member depend on who they join, therefore his rights should be upon who he joins. Wife got certificate for permanent residence, but he was not allowed to because time spent in prison did not allow conclude to 5 years.

Question 30

Ziolkowski

Answer 30

from point of accession, the 5 years did not follow. Can 5 years when they were in Germany count towards permanent residence? Court held: they lived there for more than 5 years, does not matter the situation arose previously.

Question 31

Brey

Answer 31

meaning of social assistance German retired couple moves to Austria. Husband receives disability care and wife receives pension. Once wife moves to Austria she does not get pension. Husband applied for a supplementary pension from Austria. Court had to decide whether this was social assistance. Court held: social assistance is:

1) Any assistance given by public authorities
2) To an individual who does not have sufficient resources to meet his needs
3) In giving this assistance, it created a burden on host MS.

Question 32

Trojani

Answer 32

Worker definition.

French citizen who moves to Belgium to reintegrate with the salvation army, they provide lodging and pocket money to take part in programs and do jobs that arise. Question: is Trojani a worker? No fixed salary, only pocket money. Formula was:
¥ ‘Any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a “worker”’.

Question 33

Worker definition from Trojani

Answer 33

1) pursues activities which are “real and genuine”, not “marginal and ancillary”.

The essential feature of an employment relationship is … that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration …’

Worker definition must not be interpreted narrowly.

Question 34

Kempft

Answer 34

The trojani definition includes part-time work.

Question 35

Jany

Answer 35

Key difference between employed workers (Art 45) and the self-employed (Art 49) – the former must be in a relationship of subordination – determined by the national court:

Question 36

Antonissen

Answer 36

Belgium citizen finds himself in UK, arrested with cocaine. Question: did he have a right to look for a job. Court held at least for 6 months he has a right to seek employment.

Question 37

Lebon

Answer 37

held no one is entitled to social benefit If they are job seekers (early restrictive approach)

Question 38

Collins

Answer 38

Irish us citizen, worked in UK, 17 years later he came back to UK in may, after one month he applied for social benefits. Question: is he entitled to these unemployment benefits? Held: because of introduction of EU citizenship EVERBODY is entitled to equal treatment under art 18 of treaty, so they are entitled to assistance which facilitates assess to labour markets, such as unemployment benefits, not same as for workers, workers are entitled to any social or tax advantages, but in case of job seekers, it is only those benefits which relate to facillating the assess to the labour market, this is because there are citizenship provisions in the treaty.

MS do not relinquish complete control, they have a possibility to However, MS have a possibility to require a ‘real link’. In Collins, benefit was rejected because he was not habitually resident in UK. There the UK required ‘a real link’. One month is not sufficient to satisfy habitual residence.

Question 39

Ioannidis

Answer 39

requirement on ‘real link’ is subject to proportionality. Greek citizen who wants to get a job in Belgium. There is unemployment benefit in Belgium for job seekers allowance, Belgium grants job seeker allowance to people who have completed secondary education in Belgium. X completed secondary education in Greece. Is this a proportionate in terms of demanding a ‘real’ link’? Court held: this rule goes beyond what is necessity because you look at something very specific.

Any demand on real link must be proportionate.

Question 40

Vatsouras and Koupatantze

Answer 40

Short term work which came to an end and after this tried to claim benefits, taxes based benefits paid by state. Does art 24(2) preclude job seekers allowance, the court does not address this but says instead of classing job seekers allowance as social assistance it says allowances are given for the purpose for facilating access to labour market are not social assistance. Instead ruled that benefits for facilitating access to labour market are not social assistance. Therefore not covered by art 24. Thus, The court leaves it to itself to look at benefit, to ask if it is about facilitating the movement into the labour market so art 24 does not apply. In other cases court looks at the benefit and says it is not about facilitating access to the market, it is about social assistance generally so art 24 applies and the state is not obliged to. Up to point of Alimanovic, we see a liberal approach by the court, if you are a job seeker, exercising right to look for a job and reside longer than 3 months, we should be entitled to equal treatment as far as job seekers allowance is concerned.

But now there is a restrictive approach

Question 41

Alimanovic and Garcia-Nieto

Answer 41

• Individual assessment is not necessary. The ‘unreasonable burden’ is not about individual claims, but the accumulation of claims. Court says benefit which can potentially facilitate access labour market it does not do this, as it does in Vatsouras, instead you are not entitle to social benefit. Most important retreat is that Court held we do not need individual assessment. Before when you pay someone benefits, in order to assess whether it is an unreasonable burden or not, you access the individual claim, not the court says it is not the individual claim which matters but the combination.
  Two cases show a retreat from court acknowledging the political reality of the Union and the public opinion.

Question 42

Antonissen

Answer 42

Art 45 applies to job seekers.

Art 45 TFEU refers only to the right of workers to move to another MS to ‘accept offers of employment actually made’. Therefore work seekers do not, on a strict reading, fall within that provision but their intermediate status was recognised in:

Question 43

Collins

Answer 43

UK ‘jobseeker’s allowance’ – MS can require a ‘real link’ between the applicant for the allowance and the labour market of the MS concerned before qualifying for a job seeking benefit. The existence of such a link can be determined, in particular, by establishing that the person concerned has, for a reasonable period in fact genuinely sought work in the Member State in question. If the job-seeker establishes the ‘real link’ he/she is entitled to receive a benefit of a financial nature intended to facilitate access to the labour market.

Question 44

Ioannidis

Answer 44

‘real link’ test must be applied subject to the principle of proportionality.

Question 45

Vatsouras

Answer 45

Art 24(2) can be reconcilled with Collins because benefits intended to facilitate the access to the labour market cannot be regarded as social assistance within meaning of art 24(2).

job-seeking allowance is a benefit of a financial nature which is intended to facilitate access to the labour market and cannot be regarded as constituting social assistance within the meaning of Art 24(2) CRD – concerned with labour market access so a link with Art 45 TFEU.

Question 46

Alimanovich

Answer 46

However, in recent years a restrictive trend is noticeable in the Court’s approach to job-seeker’s position:

individual assessment is not necessary as the CRD which sets a gradual system on the retention of the status of the ‘worker’ ‘itself takes into consideration various factors characterising the individual situation of each applicant for social assistance and, in particular, the duration of the exercise of any economic activity’

Question 47

García-Nieto

Answer 47

However, in recent years a restrictive trend is noticeable in the Court’s approach to job-seeker’s position:

the ‘unreasonable burden’ on the social assistance system of the host Member State is assessed on the basis of the accumulation of all individual claims, rather than separate claims.

Question 48

Baumbast

Answer 48

Court held: the fact that the Union citizen is only partially insured cannot justify the MS’s refusal to renew his/her residence permit. Thus, both conditions have to be assess with due regard to the individual circumstances and principle of proportionality.

Before terminating Union Citizen right:

1) MS must look at individual circumstances
2) Proportionally
3) Respect fundamental rights including right to family life.

They had sufficient resources and insurance, but does not have emergency care.

Question 49

Zhu and Chen

Answer 49

¥ does not matter that the funds do not derive from the citizen herself. Sufficient means does not have to come from citizen themselves (the baby herself), enough that it comes from the mother in this case.

Question 50

Martinez Sala

Answer 50

Spanish lady lived in Germany for many years with her children, not working, residing in Germany lawfully, can she be entitled to childcare allowance? Two citizens in host MS which have granted them lawful residence. Court held: 3 requirements below

Question 51

Trojani

Answer 51

French citizen doing a reintegration in Belgium in salvation army, did odd jobs. Question: if not a worker can he be entitled to social benefits or not?

Question 52

Brey

Answer 52

importance of individual assessment .Austrian legislation required after 3 months you immediately should have sufficient means. When Brey applied for supplement for pension. Court held there needs to be individual assessment, recourse to social assistance does not mean that they do not have sufficient means.

Question 53

Dano

Answer 53

Recent case, Romanian lady whose sister lived in Germany, she moved to Germany and has a son there, she does not speak German, does not look for a job and lives with sister. Dano got some benefits from Germany for child, she also applied for another benefit. Question: was she a lawful resident in Germany so should she be entitled to equal treatment, the same way as Martinez Sala andTrojani? In these cases we simply applied art 21 and 18 of the TFEU. But we did not question the lawful residence of the citizens under EU law as MS gave lawful residence. Here the question was whether we have to assess lawful residence of Dano under the directive because she already had a certificate.
Court held: she had no right to receive benefits because she does not reside in Germany lawfully, the court came to such a different conclusion. Dano came before Alimanovic and so Dano was the biggest signal that court was taking a different turn. Alimanvoic followed Dano.

1) Dano says back to distinction between economically active and non-active citizens. There is a big retreat from idea of citizenship being fundamental status and now rather than individually questioning the situation, it looks like MS are justified in imposing blanket exclusions.

Question 54

Dano

Answer 54

Court of Justice held that Member States may refuse benefits to economically inactive EUCs who exercise their right of free movement solely in order to gain access to the social assistance system of the host MS although they do not have sufficient resources to claim a right of residence. This means that they have not satisfied the conditions for the right of residence and cannot invoke the principle of non-discrimination in Art 24(1) of the Directive – see part 4 below. Each individual case must be examined without taking account of the social benefits claimed.
In the words of the Court at para 76: ‘Article 7(1)(b) … seeks to prevent economically inactive Union citizens from using the host Member State’s welfare system to fund their means of subsistence.’

Question 55

Gravier

Answer 55

French student in Belgium contested enrolment fee which was not same for beligum students. Court recognised students should be treated equally in terms of access to education. equal treatment in ‘conditions of access’

Question 56

Lair and Brown

Answer 56

no access to maintenance grants and loans. This was before citizenship came.

Question 57

Grzelczyk

Answer 57

A french citizen who was studying in Belgium applied for the “minimex” reserved for beligum nationals. He had right to reside in MS provided he had sufficient resources and comprehensive insurance.

Held: since lawfully resident Union citizen he was protected by prohibition of non-discrimination on ground of nationality. However, these rights conferred by art 21 can be limited if the citizen becomes an :unreasonable” burden.

Question 58

Bidar

Answer 58

¥ French citizen tried to study in UK, he lives with grandmother, he wanted student loan, condition you have to be resident in Uk for 3 years and settled, this was for feighers. UK student loans not available to French nationals

Recourse to s24 grants etc require a “Real link”. There was a real link in Förster.

Question 59

Förster

Answer 59

Court ruled that economically independent citizen and students can be refused maintenance grants and loans who are not permanent residents.

Ms Föster was a worker who recieved a maintenance grant, but she stopped working for a bit, the dutch authorities asked for repayment of the grant during the period which she was not employed, since according to Dutch rules economically inactive union citizens qualified for such grants after 5 years of residence. However, unlike in Bidar, the rules were proportionate and a legitimate way of guarenteering that Union citizens would have achieved a sufficient degree of integration.

Retreat from looking at personal circumstances of person.

Question 60

Grzelczyk

Answer 60

The CRD provisions codify and revise the pre-CRD case law on students:

French national studying in Belgium – not a worker but covered by the old Students Directive 93/96 (now Art 7(1)(c) CRD), applied for Belgian minimum subsistence allowance ‘minimex’ – a Belgian national, including students, in the same circumstances would have been entitled to it (within the material scope of the Treaties) – not a student grant or loan – the Belgian rule violated the non-discrimination principle in Art 18 TFEU – would fall outside Art 24(2) CRD today.

Question 61

Bidar

Answer 61

B, a French national, came to the UK and lived with his grandmother. B applied for a student loan for an economics course at the LSE – refused on two grounds: that he did not meet a three-year residence requirement (which also applied to UK nationals) and was not ‘settled’ in the UK (which only applied to foreign nationals). Student loans for EUC students fell within the material scope of the Treaties and Art 18 TFEU applied but, in accordance with Directive 93/96, the predecessor provision of Art 24(2) CRD, this did not establish any entitlement to the payment of maintenance grants by the host MS on the part of students benefiting from the right of residence.

Question 62

Förster

Answer 62

More recently the CJEU has ‘remoulded its case law to fit the Directive’ (Costello, 2009 CMLRev at 601),

5-year residence requirement for entitlement to student grant in the Netherlands. F had previously worked but was found not to have retained her worker status. Instead she was found to be an economically inactive EUC. 5-year rule was found to be non-discriminatory, was based on clear criteria and known in advance, therefore proportionate, and not excessive taking into account its objective which was to require a ‘substantial degree of integration’ into the society of the host MS. As F was no longer a worker, the CJEU took account of Art 24(2) CRD even though it had not yet taken effect at the time the case was brought, see para 55. Length of residence under the rule coincided with period of residence required for non-economically active EUCs to acquire permanent residence under Art 16(1) CRD.

Question 63

Diatta

Answer 63

mutual recognition of marriages Lady married French man living in Germany, but at some point they decide the live separately, they were going to get a divorce. In these circumstance should Germany refuse citizenship to wife. Court held: as long as marriage is still in force there is a duty on host MS to recognize the spouse.

Question 64

Same sex partnership?

Answer 64

no information in directive, if in one MS same sex marriage is recognised should it be recognised in states where it is not recognised? We do not know yet, there is no such case. Perhaps as a starting place Diatta should apply.

Question 65

Jia

Answer 65

What does dependent mean?

Chinese citizen married to German woman, she is self employed in Sweden, she has exercised right to free movement, Chinese citizen is her spouse, he can reside in Sweden. The husband has a Chinese mother who is dependent on him. Sweden demanded documentation from china to confirm that she is dependent on her son. Question: what does dependency mean?
1) Dependent if you do not have sufficient means to support yourself.
What about requirement for official confirmation that she is dependent on her son. Court held that this is not necessary, instead can verify it through other appropriate means (such as bank statements that he gives her money etc). do not have to go through excessive mean.

Question 66

Reyes

Answer 66

the Court stated that family members cannot be required to prove that they have searched for a job in the country of origin and that whether they will eventually manage to find employment in the host Member State is an irrelevant factor with regards to the interpretation of ‘dependant’.

Pilipino national, the mother worked in Germany and sent money home for her own mother to look after her child. Reyes grandmother looked after child with money mother sent her. Mother acquired German citizenship and then moves to Sweden (exercising right of free movement), she wants to bring her daughter to Sweden. Question: would daughter be dependent if she has not looked for job in Phillipins or applied for social assistance? Court held that there should be no condition to demonstrate lack of resources for looking for job or applying for social benefits. She was dependent on basis that mother was sending her money.
What about argument that she should have to look for job in Sweden? Court held there is no requirement anywhere, should not impose new obligation.

Question 67

Teixera

Answer 67

Where a WORKER had died or departed MS or divorce, a TCN FM who remains and is Primary carer for children can retain the right of residence in that MS until children have compelted education.

Portuguese couple and have child in UK. They divorce, mother Is on and off working. Question: when mother has no means to support themselves can they reside in UK? When the child went to the school, at this point, her mother was not in employment. Court held: it does not matter that at time of child going to school her mother was not in employment as long as she is currently in education and in past mother/father did work then her and mother (as primary carer) has rights of residence until she completes education. When child completes education mother will not be able to stay unless she satisfies the conditions. But this would probably count towards permanent residence.

Question 68

Akrich

Answer 68

Can non-EU family members be denied entry and residence rights on the basis of national immigration rules?

restrictive approach. Moroccan citizen came to UK as tourist, wanted to be a student but was rejected. He was then involved in theft, then conviction followed by deportation. He then entered UK illegally and managed to marry a UK citizen. Wife intended to move to Ireland, he was to be deported, he asks to be deported to Ireland because wife was there. But then wife tried to come back so did he, now a FM of EU citizen who has exercised her right of free movement. The court was restrictive and said he cannot come back because previous residence was unlawful. It depends on prior lawful residence!

Question 69

Metock

Answer 69

Overturned Akrich, there is no need for TCN to have already been lawfully resident.

Four EU nationals working in Ireland, all marry people from African countries, they were all in Ireland based on asylum applications. Question: when they want to reside in Ireland should Ireland require prior lawful residence in country where the EU citizen comes from. Very controversial, abuse of rights (art 35 on abuse of rights) MS did not want third country nationals to reside on territory through route of EU..
Court explicitly overrules Akrich, and says that
1) all the directive says is family members can accompany or join the other, no requirement of lawful residence.
2) CRD does not have a requirement of prior lawful residence: all it says that FM can accompany or join the EU citizen
3) Such a requirement will interfere with freedom of movement by discouraging EU citizens to move
4) MS do not have exclusive competence to regulate the first access to EU territory of non-EU national FM
a. It is the directive which we should be guided by
5) If we left this to the MS, this would lead to diverse rules in the MS incompatible with the idea of creating an internal market without frontiers

Question 70

Rahman

Answer 70

Bangladeshi citizen married to EU citizen, together they live in UK, Rahman tried to bring over his siblings claiming their dependence on him.

Facilitation means consider their personal circumstances give reasons if denying right and have clear rules to indicate conditions on basis people in such position would be able to come over and dependency has to be established in home state of beneficiaries. To take account of the various factors that may be relevant in the particular case, such as the extent of economic or physical dependence and the degree of relationship between the family member and the Union citizen whom he wishes to accompany or join.

Question 71

Baumbast

Answer 71

B was a German national living with his family in the UK but working overseas. He did not receive any UK social benefits and travelled to Germany, when necessary, for medical treatment covered by insurance policy.
Held: [Art 21(1) TFEU] is directly effective despite the ‘limitations and conditions’ in ex-Directive 90/364 [now Art 7(1)(b) CRD]. Requirement not to become a ‘burden’ on the host State is subject to the principle of proportionality – national measures must be appropriate and necessary to the objective pursued. B did not ‘burden’ the social assistance scheme of the host Member State as he and his family were covered by health care insurance in Germany where they travelled for non-emergency treatment. Refusal of the right of residence because of lack of cover only for accident and emergency treatment in the UK would amount to a disproportionate interference with B’s rights.

Question 72

Zhu and Chen

Answer 72

C (a Chinese national) and her daughter, X (an Irish national born in the UK) were refused a long-term residence permit in the UK. C was financially independent from public funds and had comprehensive sickness insurance for herself and X. X met the conditions and was entitled via C to rely on Art 21(1) TFEU to enforce a residence right in the UK (para 47). Moreover, because otherwise X’s right of residence would be deprived of any useful effect (para 45), C was also entitled to residence as her FM.

Question 73

Trojani

Answer 73

Art 21 TFEU does not, of itself, provide a right of residence for citizens who lack sufficient resources but these citizens are entitled to equal treatment so long as they remain lawfully resident – see part 4 on equal treatment below.

Question 74

Dano

Answer 74

duty of the host MS to examine, specifically, without taking account of the social benefits claimed, whether he/she meets the condition of having sufficient resources to qualify for a right of residence.

Question 75

Oulane

Answer 75

Art 6 CRD – requirement to hold a valid ID card or passport, no conditions or any other formalities – applies to EUCs and TCN FMs ‘accompanying or joining’ them:

EUCs and their FMs must not become an ‘unreasonable burden on the social assistance system of the host Member State’ in the first three months, Art 14(1) CRD, but recourse to the national assistance system is not an automatic reason for expulsion, Art 14(3) CRD.

Question 76

Oulane

Answer 76

Documents are evidence of the right of EU citizenship and not a precondition for the exercise of that right, see Art 25 CRD and:

Question 77

Bickel &Franz

Answer 77

Procedural safeguards are important – she should be able to understand the case against her so will need an interpreter in any court proceedings,

right of the free mover to equal treatment under language rules of the host Member State in a case before a criminal court – within the material scope of the Treaties.

Question 78

Lassal

Answer 78

EUCs and their FMs acquire the ‘right of permanent residence’ in the host MS after five years of continuous legal residence in that MS (includes temporary absences not exceeding a total of six months a year) – Art 16 CRD. It is intend to hasten integration and promote social cohesion:

Question 79

Onuekwere

Answer 79

Periods in prison interrupt continuity of legal residence in the host MS:

Question 80

Martinez Sala

Answer 80

Since German granted her residency rights, it could not exclude her from the principle of equal treatment. Therefore, once a Union citizen is lawfully resident in one of the MS, she can rely on principle of equal treatment to claim welfare.

Grzelczyk was similar
Spanish national lawfully resident in Germany – had worked, but was now in receipt of social assistance – applied for child benefit – refused because she did not have an up to date residence permit – Germany argued that she did not come within the scope of the Treaties.

Question 81

Dano

Answer 81

Romanian nationals had more than three months residence in Germany but were not permanent residents – were economically inactive, had entered and resided there to obtain social assistance but did not have sufficient resources – found not to have satisfied the conditions for the right of residence (see above) and not entitled to equal treatment in respect of social assistance under Art 24(1). Note that the Court made it clear that Art 24(1) did not protect them so there was no need to resort to the derogation in Art 24(2). Such ‘potential unequal treatment’ is founded on the link between the requirement to have sufficient resources as a condition for residence and the concern not to create a burden on the social assistance system of the Member States, see para. 77.

Question 82

Bressol

Answer 82

the CJEU ruled that a non-discriminatory limitation on places in University medical schools based on a residence requirement could be justified on the grounds of public health protection if there is a genuine risk to the protection of public health in the host MS if long-term residents of that MS find it more difficult to obtain places at medical schools and the limitation is proportionate.

Question 83

Uecker and Jacquet

Answer 83

There must be a EUC on which to hang these rights and there must be a link with EU law:

Question 84

Diatta

Answer 84

NOTE the different treatment of marriage – the ‘spouse’ - and registered partnerships. In the case of marriage there is a general mutual recognition requirement:

Question 85

Teixera

Answer 85

In situations where the EUC was a worker and has deceased or departed from the MS, or there is a divorce etc, a TCN FM who remains in the host MS as primary carer for the worker’s children, and the children, retain the right of residence in that MS until the children have completed their education under Art 10 of Regulation 492/2011 (previously Art 12 of Regulation 1612/68) concerning the free movement of workers, in which case the conditions in Arts 12 and 13 CRD do not apply

Question 86

Metock

Answer 86

four EUCs who were resident in Ireland under Art 7 CRD were joined there by their TCN spouses who sought asylum in Ireland and were refused – one was deported and the other three had been denied the right to work. The EUCs challenged both the deportations and the restrictions. The referring court pointed out that none of the marriages in question were marriages of convenience under Art 35 CRD.

Held: The benefit of the rights of free movement and residence cannot depend on a spouse’s prior lawful residence in another MS. The CJEU took account of the CRD’s provisions laying down an unconditional right of first entry of TCN FMs, Art 5(2), and the right of FMs to ‘accompany or join’ the EUC under Art 3(1). Akrich is expressly overturned in para 58. The CJEU stressed both the right of the EUC to leave one MS and the right to enter another and become established there under the same conditions (para 68). First entry and residence of a TCN FM into the EU was not a retained competence of the host MS, overridden by the right to accompany or join the EUC – inconsistent with the core internal market objective. The CJEU referred to its previous case law on the right to family life (para 56) and succinctly declared that ‘if Union citizens were not allowed to lead a normal family life in the host Member State, the exercise of the freedoms they are guaranteed by the Treaty would be seriously obstructed’ (para 62). Express reference was made to the MSs’ obligations under the ECHR (para 79). The scheme of the CRD envisaged the right of the EUC to found a family after exercising the right of free movement and residence in another MS. There are no requirements in the Treaties or the CRD as to the place where the marriage is solemnised.

‘Consequently, [the CRD] confers on all nationals of non-member countries who are family members of a Union citizen within the meaning of [Art 2(2)], and accompany or join the Union citizen in a Member State other than that of which he is a national, rights of entry into and residence in the host Member State, regardless of whether the national of a non-member country has already been lawfully resident in another Member State.

Question 87

Bouchereau

Answer 87

The existence of a previous criminal record can only be taken into account in so far that the convictions are evidence of a
1) personal conduct constituting a present threat to public policy.

Question 88

Santillo

Answer 88

If two years have elapsed between expulsio order was issued as a penalty and execution, MS must check that individual concerned is at that time a current and genuine threat to public policy/security.

Italian living in UK, he was involved in assault and convicted to prison for 8 years, he was then to be deported. He was released 4 years earlier. Question: should he be automatically deported? Held: no because decision was made 4 years ago, does he pose a threat currently, is his personal conduct a genuine, present and sufficiently serious threat? If not then the decision has to be taken back.

Question 89

Calfa

Answer 89

– Italian tourist, he used drugs. She was imprisoned for 3 months with an automatic expulsion order for life, minor offence which had penalty of prison and expulsion. Point was: can you impose expulsion as a part of the sanction itself as a general measure instead of looking at personal conduct here? Court held: no look at personal conduct, is she such a threat to be expelled for life and never back. Look at personal conduct to see if it is a genuine, present and sufficiently serious threat.

Question 90

Campus Oil

Answer 90

Ireland demanded that all importers of oil buy part of their oil from refinaries. Jusitifccation measure of public security to make sure continuous supply of fuel otherwise this impacts the country. This is where court interpreted public security : threat to state or existence od institutions/population/relations with other countries and generally with peaceful coexistence with the world.

Question 91

Van Duyn

Answer 91

art 45 TFEU is directly effective.
Public policy

ditch citizen tried to enter uk to work for scientology. Question: should he be denied entry if this activity has not been criminalized for UK citiznes, do we need to criminalise a particular policy for grounds. Court held: no it is up to MS to decide what is desirable organization or not, and not necessary to criminalize the particular policy to deny entry for dutch citizen.

Van Duyn could be validly refused entry to the UK if her personal conduct justified the refusal on the basis of one or more of the above restrictions

Question 92

Adoui and Cornuaille

Answer 92

Public policy

For public policy need to show that criminal liability would have occurred if done by nationals.

French lady working in Belgium brothel. Question: should prostitutions be contemed and what if prostitution is legal in beligium, should they be expelled? Held: court held no universal set of values everyone determines what public policy means, here public policy is fight against prostitution, but does it make sense to expel these woman when there are no measures for domestic citizens, should that this is being attacked with Belgium citizens too. Need to show trying to tackle behavior domestically too.

Question 93

Olazabal

Answer 93

public policy

group which demanded independence. Olazabal was a member in group so his movement was restricted in France. Question: should this restriction stand in face of public policy/security. Court held if similar restrictions on French citizens who also pose a threat then this is fine. We need to see equal treatment in terms of restrictions.

Question 94

M.G

Answer 94

– living in UK , convicted on charges of cruelty to children, so in prison. Curt held time spent in prison did not count towards 10 year period, this 10 year period MUST be continuous. How do we calculate this period? Court held: count period by counting back to decision making decision.

Question 95

Tsakouridis

Answer 95

Germany (in theory, the court held) could involve art 28(3) or (2) against a greek national born and raised in germany in relation to drug related offences. However, proportionality and fundamental rights is determined by national court.
Court held imperative grounds means considerably stricter than serious grounds, determined on case by case basis.
Also need to look at individual circumstances and fundamental rights like right to family life.

Question 96

P.I

Answer 96

Italian citizen in Germany convicted of abuse of children, is this a public security or public policy matter. Is this a threat to a state/institutions/population/relations in external globe? No but court extended meaning of public security to public policy. This case blurs the lines in the directive which depends on how long the person has resided.

Question 97

ZZ

Answer 97

a. concerned French citizen resided in UK linked to terrorists. Question: how much information does state have to disclose to him about decision? Held: as much as possible

Question 98

Bouchereau

Answer 98

Previous criminal convictions ‘shall not in themselves’ constitute grounds for taking public policy or public security measures. The personal conduct of the individual concerned ‘must represent ‘a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or than rely on considerations of general prevention shall not be accepted’ – Art 27(2) CRD, codifies:

Question 99

Tsakouridis

Answer 99

Art 28(2) – where the EUC/FM has a right of permanent residence they can only be expelled where there are ‘serious’ grounds of public policy or public security; Art 28(3) – if the EUC/FM has been resident in the host MS for ten years, or are a minor, expulsion is only permitted if the decision is based on ‘imperative grounds of public security’, as defined by MSs: