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Public Law 3 (EU and ECHR) > Free Movement of People > Flashcards

Free Movement of People Flashcards

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1
Q

What TFEU article 45 state?

A

Free movement for workers shall be secured within the Union

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2
Q

Who does free movement of workers extend to?

A
  • those seeking work
  • those no longer working through retirement or illness
  • families of workers
  • access to social security benefits
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3
Q

Describe the case of of ‘Lawrie-Blum v Land Baden-Württemberg [1986]’ .

A
  • Case involved a trainee teacher and whether they were a worker or not
  • During the teachers time they were doing work in school and receiving income
    HELD - the teacher was an employee
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4
Q

What did the Court say was an essential feature of an employment relationship in ‘Lawrie-Blum v Land Baden-Württemberg [1986]?

A

“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.”

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5
Q

What happened in ‘Levin v Staatssecretaris van Justitie [1982]’ and what did this case emphasise?

A
  • In this case a British National and his South African wife moved to the Netherland
  • Ms Levin had undertaken a small amount of part-time work and she and her
    husband supplement their income with investment income
    -Earned income was far below what could be regarded as necessary income according to Dutch law
    -Q - should she be regarded as worker for the purposes of eu law
    HELD - ECJ stated that it doesn’t matter if income is lower than the minimum required for subsistence, what is important is that the work activity can be effect and genuine not marginal and ancillary
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6
Q

What must an individual show to be recognised as a worker under EU law?

A

Genuine and effective economic activity

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7
Q

What happened in the case of ‘Steymann v Staatssecretaris van Justitie [1988]’

A
  • An individual worked in religious community and was remunerated with a bed, food and pocket money
  • Q. was this enough to satisfy being a worker
    HELD - YES, economic activity present, was receiving things for services he was providing. Does not necessarily have to be money.
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8
Q

Why was the individual in ‘Bettrav v Staatssecretaris van Justitie [1989]’ not recognised as a worker under EU law?

A
  • As the individual was doing community work as part of drug rehabilitation programme
    HELD - could not be regarded as worker, no genuine and effective economic activity
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9
Q

What did the case of ‘R v Immigration Appeal Tribunal, ex parte Antonissen [1991]’ decide?

A

FREEDOM OF MOVEMENT EXTENDED BY COURT TO THOSE SEEKING WORK

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10
Q

The Antonissen case extended free movement of people but what limits where also stated?

A
  • legitimate to remove persons after 6 months unless evidence that they were continuing to seek employment
  • must have genuine chance of being engaged
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11
Q

What does Article 45, paragraph 2 state?

A

(a) under Article 45(2) of TFEU, freedom of movement entailed the abolishment of any discrimination based on nationality
(b) Article 45(2) applies here also in that remuneration cannot be affected by a persons nationality.

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12
Q

Can foreign nationals be asked to undertake extra tests when seeking employment?

A

NO

  • Under the Workers’ Rights: Regulation 492/2011 there can be not special recruitment procedures for foreign nationals
  • Cannot be asked to undertake any additional test than that of a national of the state
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13
Q

Can rules be imposed which set aside a proportionate amount of jobs for UK workers?

A

NO

- Under the Workers’ Rights: regulation 492/2011 there can be no nationality quotas

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14
Q

Explain what Article 7 of the Workers’ Rights: Regulation 492/2011 tell us?

A
  1. A worker of a different Member State, who is in territory of another Member State may not be treated differently from national workers by reason of nationality. Mainly in regard to remuneration, dismissal, and, should he become unemployed, reinstatement or re-employment.
  2. The worker shall enjoy the saw social and tax advantages as national workers
  3. He shall also have the right to access training in vocational schools and retraining centres.
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15
Q

Article 10 of the Workers’ Rights: Regulation 492/2011 deals with families.
What does this Article detail?

A

Children of a national of a Member State, employed within territory of another Member State shall be admitted in to State’s general education, apprenticeships and vocational training courses under same conditions as nationals of the State

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16
Q

Give a brief description of ‘the Bosman’ case and what the ECJ ruled.

A
  • Case where football Bosman wanted to leave his current club on expiry of contract
  • Team he wished to move to refused to pay transfer fee so Liege refused to release him
  • they reduced his wages
  • Bosman took they came to the ECJ
    HELD - system placed a restriction on free movement if workers which is prohibited by article 45 of the TFEU
  • Bosman, and all EU footballers, could now leave club on free transfer at end of contract
  • this case also banned the restriction on foreign players within national leagues
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17
Q

What was decided in the “Cristini” case?

A
  • If the infant children and widows of nationals are entitled to reduced rate cards for national transport, then so are Community nationals.
  • Providing the request had been made before fathers death
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18
Q

When may limitations be placed on the movement of workers?

A

TFEU Article 45(4)

- Employment in the Public service

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19
Q

What did the case of ‘Commission v Belgium [1982]’ state in relation to limitation of workers?

A
  • That some jobs within the public service can be reserved for nationals only
  • E.g. those in the exercise of power, or safeguarding the general interests of State
  • However, less sensitive posts could not be restricted e.g. employment on railway
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20
Q

What definition did the case of ‘Commission v Italy [1987]’ give in regards to public service?

A

Only the duties of management or of advising the state on scientific and technical questions could be described as employment in the public servic

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21
Q

What did the case of ‘Van Duyn v Home Office [1974]’ state?

A
  • ECJ held Van Duyn could be denied entry if it was for reasons related to her personal conduct
  • Member States can refuse entry where activities by organisations are contrary to public good
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22
Q

What happened in the case of Adoui & Cornuaille v Belgium [1982]’?

A
  • Two woman worked in a bar and were suspected of prostituiton
  • They were subsequently deported by the Belgian government on the grounds of public policy
    HELD - the ECJ stated that Belgium could not deport the woman unless it took similar repressive action against its own nationals
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23
Q

Explain the case of ‘R v Bouchereau [1977]’.

A
  • A French national who was working in England was convicted twice in short period of time for being in possession of illegal drugs
  • The magistrate in this case referred to the ECJ as to whether deportation would be contrary to Community rules
    HELD - there must be a “genuine and sufficiently serious” threat to public order to constitute deportation
  • Past offences are enough to suffice
24
Q

What does the Treaty and Citizenship Directive (Dir. 2004/38) relate to?

A

the right of citizens of the Union and their family members to move and reside freely within the territory of the EU and EEA member states.

25
Q

What does Article 6 of the Treaty and Citizenship Directive (Dir. 2004/38) allow for?

A

Rights of residence up to 3 months

(1) this being without any conditions or any formalities other than the requirement to hold a valid identity card or passport
(2) Provisions of Article 6(1) also relate to family members of the Union Citizen who are not nationals of Member State

26
Q

Article 7 of the Treaty and Citizenship Directive (Dir.2004/38) allows for rights of residence for more than 3 months under what circumstances?

A

(1) (a) are workers or self-employed in Member State or
(b) have sufficient resources for themselves and family not to become a burden on social assistance of Member State AND have sickness insurance cover
(c) are enrolled at private/public establishment financed by host Member State for principal purpose of following course of study. Have Comprehensive sickness insurance and can prove they have resources for them and family not to become burden on social assistance system of Member State
(d) Are family members accompanying or joining a Union citizen who satisfied the conditions referred to in (a), (b) and (c).

27
Q

Provide a description of Article 7(2) of the Treaty and Citizenship Directive (Dir. 2004/38).

A

(2) Right of residence provided for in paragraph 1 of Article 7 shall extend to family members
- these family members are not nationals of a Member State but are accompanying or joining a union citizen in the host Member State
- Provided that the Union citizen satisfies conditions in (1)(a), (b) or (c).

28
Q

Under Article 7, paragraph 3 of the Treaty and Citizenship Directive (Dir. 2004/38). A union citizen who is no longer a worker shall retain the status as such if they satisfy what conditions?

A

Article 7 (3)

(a) he/she is temporarily unable to work as a result of illness or accident
(b) he/she is in duly recorded involuntary unemployment after being employed for a period of one year or more and has registered as a job-seeker with the relevant employment office
(c) he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year having become involuntary unemployed during the first 12 months and has registered as a job seeker with relevant employment office. Status as a worker will be retained for no less than 6 months
(d) He/she embarks on vocational training which must relate to the previous employment to retain worker status, unless involuntarily unemployed

29
Q

What does Article 7, paragraph 4 of the Treaty and Citizenship Directive (Dir 2004/38) allow?

A

For rights of residence for more than 3 months by way of derogation.

30
Q

Explain Article 14, paragraphs (1) & (2) of the Treaty and Citizenship Directive (Dir. 2004/38)

A

Retention of Rights of Residence

(1) Union citizens and family have right of residence provided by Art.6, as long as they do not become an unreasonable burden on host Member State’s social assistance sytem
(2) Union citizens and family have right of residence provided for in Art. 7,12 and 13 so long as they meet the conditions set out therein

31
Q

Under Article 16, paragraph 1 of the Treaty and Citizenship Directive (Dir. 2004/38), what do citizens obtain?

A

Article 16 (1)

  • Union citizens who have resided legally for continuous period of five years in host Member State have right to permanent residence there.
  • Right shall not be subject to conditions provided for in Chapter 3
32
Q

What does Article 16, paragraph 2 of the Treaty and Citizenship Directive (Dir. 2004/38) provide?

A 
Article 16(2)
- Article 16, paragraph 1 shall apply also to family members, who are no nationals of a Member State and have legally resided with the Union citizen in host Member State for continuous period of 5 years
33
Q

Article 16, paragraph 3 of the Treaty and Citizenship Directive (Dir. 2004/38) deals with absences that DO NOT affect a Union citizens rights as permanent resider in another Member State.
What are those absences?

A
  • Temporary absences not exceeding a period of 6 months a year
  • Absences of a longer duration for compulsory military service
  • Absences for 12 consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.
34
Q

When would a right of permanent residence be lost?

A

Under Article 16, paragraph 4 of the Treaty and Citizenship Directive (Dir. 2004/38), a permanent right of residence would only be lost through absence from the host Member State for a period exceeding two consecutive years.

35
Q

What Article of the Treaty and Citizenship Directive (Dir. 2004/38) deals with equal treatment?

A

Article 24

36
Q

What does Article 24, paragraph 1 of the Treaty and Citizenship Directive (Dir. 2004/38) state?

A

Article 24 (1)

  • ALL union citizens residing on basis of this directive in territory of host Member State shall enjoy equal treatment with nationals of Member State
  • Benefit of this right shall extend to family members who are not nationals of a Member State and who have the right of residence or permanent residence
37
Q

What does Article 27 of the Treaty and Citizenship Directive (Dir. 2004/38) deal with?

A

Restrictions to free movement and residence.

38
Q

When may Member States restrict the free movement and residence of union citizens and their family members?

A

Treaty and Citizenship Directive (Dir. 2004/38) Article 27, paragraph 1

  • not taking into account nationality, a Member state may restrict free movement and residence on the grounds of public policy, public security or public health
  • these grounds shall not be invoked to serve economic ends
39
Q

Explain Article 27, paragraph 2 of the Treaty and Citizenship Directive (Dir. 2004/38

A
  • Measures taken on grounds of public policy or public security must follow the principle of proportionality
  • Measures shall be based exclusively on the personal conduct of the individual concerned
  • previous criminal convictions shall not themselves constitute a grounds for taking such measures
40
Q

What does Article 27, paragraph 4 of the Treaty and Citizenship Directive (Dir. 2004/38) state?

A
  • The Member State which issued the passport or identity card shall allow a person who has been expelled by another Member State, on the grounds of public policy, security or health, to re-enter its territory without any formality.
41
Q

What 4 conditions did the case of “Reinhard Gebhard” when invoking restrictions?

A

(1) they must be implied in a non-disciminatory manner
(2) they must be justified by imperative requirements in the general interest
(3) they must be suitable for securing the attainment of the objective which they pursue
(4) they must not go beyond what is necessary to attain it

42
Q

What does Article 28 of the Treaty and citizenship Directive (Dir. 2004/38) deal with?

A

Protection against expulsion

43
Q

What is detailed in Article 28, paragraph 1 of the Treaty and citizenship Directive (Dir. 2004/38)?

A
  • Before taking expulsion decision on grounds of public policy/security, member state shall take into account considerations such as;
    (i) How long individual concerned has resided on its territory
    (ii) His/her age
    (iii) state of health
    (iv) family and economic situation
    (v) social and cultural integration into the host Member State
    (vi) Extent of his/her links with country of origin
44
Q

What does Article 28, paragraph 2 of the Treaty and citizenship Directive (Dir. 2004/38) explain?

A
  • That Member States may not take expulsion action against Union citizen or family who have permanent residence on its territory
  • Except on the grounds of serious pubic policy or public security
45
Q

When may an expulsion decision not be taken against a Union citizen?

A

Under Article 28, paragraph 3 of the Treaty and citizenship Directive (Dir. 2004/38)

  • Expulsion decision may not be taken where they have
    (a) resided in the host Member State for the previous ten years or
    (b) are a minor, except where expulsion may be in the best interests of the child (United Nations Convention on the Rights of the Child of 20 November 1989)
46
Q

When will expulsion be allowed under Article 28, paragraph 3 of the Treaty and citizenship Directive (Dir. 2004/38)?

A

On imperative grounds of public security

47
Q

What does Article 29 of the Treaty and citizenship Directive (Dir. 2004/38) deal with?

A

Public Health

48
Q

What does Article 29, paragraph 1 of the Treaty and citizenship Directive (Dir. 2004/38) state about diseases?

A
  • that the only diseases that will justify a restriction on free movement will be those with epidemic potential (defined by relevant instrument of WHO)
  • Other infectious or contagious parasitic disease may restrict free movement if they are the subject of protection provisions applying to nationals of the host Member State.
49
Q

Will a disease that occurs after arrival in a Member State result in expulsion?

A

Under Article 29, paragraph 2 of the Treaty and citizenship Directive (Dir. 2004/38)
- diseases which occur after a three-month period from the date of arrival shall not constitute grounds for expulsion

50
Q

If a person shows serious signs of carrying a disease, within the three month period, what can the Member State do?

A

Under Article 29, paragraph 3 of the Treaty and citizenship Directive (Dir. 2004/38)

  • A Member State may require persons, entitled to residence, to undergo a medicial examination, free of charge
  • This is to certify they are not suffering from any conditions referred to in paragraph 1
  • These medicial examination may not be required as a matter of routine
51
Q

What happened in the “Zambrano case”?

A
  • A refugee from Columbia was in Belgium during the Civil war
  • Whilst in Belgium he had children born there (Belgian/EU citizens)
  • The question was he, being a non EU citizen, entitled to stay in Belgium
  • The Court will protect right of citizenship and also enjoyment of those rights
  • They stated that for the children to enjoy such rights that Mr. Zambrano must be allowed to stay in the Member State, as the children were dependant on him, and without him they would not be able to enjoy rights as EU nationals
52
Q

How is Article 20 of TFEU to be interpreted following the ‘Zambrano’ case?

A
  • That it precludes Member States from refusing a third country national upon whom his minor children, who are EU citizens, are dependant, a right of residence in the Member State of his children
  • The Member State also cannot refuse to grant a work permit to the third country national as this would affect childrens enjoyment as EU citizens.
53
Q

What happened in the case of ‘Zhu and Chen v Secretary of State for the Home Department [2004]’

A

Minor who is a national of a European Union member state has the right to reside in the European Union with his or her third-country national parents
- In this case a Chinese family’s rights in the U.K. are about to expire
- They did not want to leave the U.K. and thus moved to Belfast to have their child
- This meant the child automatically gained Irish citizenship (and of course EU citizenship)
- The child had rights as an EU citizen
HELD - the ECJ made clear that where a minor child is an EU national they may have a third country national stay with them in the Member State.

54
Q

What happened in the case of ‘Rendon Marin v Administracion del Estado’?

A
  • A Columbian national was living in Spain caring for his two children
  • The two children were both EU nationals
  • The father had a criminal record and under Spanish law this was an automatic refusal of residence
  • He contested this
  • He did have a derived right of residence in Spain based on children
  • Right of residence can be limited on the grounds of public policy/security
    HELD - Automatic refusal based solely on the basis of an existing criminal record could not satisfy restrictions on right of residence.
55
Q

Consider the case of ‘Rendon Marin v Adminstracion de Estado’ and its facts.
If the Columbian national had committed a crime like murder would the outcome of the case have been different?

A

Most likely YES

  • he was not revoked residence rights as having a criminal record was not a good enough reason to satisfy proportionality principle
  • If the crime was murder, that would likely satisfy proportionality principle under Public security and he would have been revoked access to Spain
56
Q

What complications arose in the case of ‘Chavez-Vilchez’?

A
  • one parent here was an EU national, the other was not
  • the two had become separated
  • Right to stay is derivative (based on not preventing child citizen enjoying rights)
  • An inquiry can be made whether this would force child to leave EU with them or whether the EU national pare can take over care.

Public Law 3 (EU and ECHR) (5 decks)

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