Free movement of person (worker's family rights)

Question 1

Who is a family member under article 2(2) of Directive 2004/38?

Answer 1

(a) a spouse
(b) the partner with whim the Union citizen has contracted a registered partnership…
(c) the direct descendant who are under the age of 21 or are dependants and those of the spouse or partner
(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b)

Question 2

What definition did the case of Jia [2007] give for a ‘dependent’?

Answer 2

‘As someone needing the material support of an EU citizen in order to meet their essential needs in the State of origin…’

Question 3

What about beneficiaries?

Answer 3

Article 3 provides that ERU countries must also facilitate the entry and residence of

1. other family members who are dependants or members of the worker’s household
2. Other family members who require personal care due to serious health grounds
3. A partner demonstrated to have a durable relationship with the worker

Question 4

What about children of EU workers?

Case? Casagrande

Answer 4

Article 10 provides that children of worker’s have the same right to general education, apprenticeship and vocational training courses as nationals of the Member State.

Casagrande
Article 10 covers ‘any general measures intended to facilitate educational attendance. The chider of Community workers are entitled to assistance grated to cover the costs of students’ education and maintenance under the same condition as applied to the host country’s own national

Question 5

What happens to the child if the worker parent returns to their country?
CASE: Baumbast

Answer 5

Where the working parent has returned to their state of nationality the children of the worker has a right to remain in the host state to complete their education.

Question 6

What happens if the family has broken down? (Article 12 )

Answer 6

The union citizen’s death or departure from the host Member State shall not affect the right of residence of his/her family members who are not nationals of a Member State

It has to be that the non-national has lived in the host Member State for at least 1 year.

Para 3: if the children reside in the host Member State and are enrolled at an educational establishment, for the purpose of studying there, until the completion of their studies.

Question 7

What about in situations of separation or divorce?

Diatta v Land Berlin [1985]

Answer 7

• A Senegalese national and her French spouse living and working in Germany had separates and initiated divorce proceedings
• The ECJ held that she had the right to continue to reside in Germany
• The fact that they did to live under the same roof did not matter; there was a continuing family link

Question 8

What does article 13 say about divorce?

Answer 8

1. the marriage has lasted 3 years - with 1 year being spent in the host Member State
2. where such a person has a court order of custody of EU citizen’s children
3. where the divorce was a result of difficult circumstances

Question 9

What are the limitations of FMOF (Article 45 TFEU)

Answer 9

It shall entail the right (a) (b) (c) (d) are subject to limitations justified on grounds of public policy, public security or public health

The provisions of this Article shall not apply to employment in the public service

Question 10

There are two limitations of FMOF under Article 45

1. Article 45(4) Public service derogation

Answer 10

Allows Member States to deny or restrict access to employment I the ‘public service’ on grounds of a worker’s nationality.

Definition of public service was given in Commission v Belgium ‘the derogation…covers specific functions of the state and similar bodies such as the armed forces, the police and other forces for the maintenance of order…’

Question 11

What are the three derogation under Article 45(3)?

Answer 11

1. Public policy
2. Public security
3. Public heath

Article 45(3) the right, subject to limitation justified on grounds of public policy, public security or public heath

Question 12

What does Article 27(2) say on derogation (if you want to discriminate against someone)

Answer 12

Measures taken on grounds of pubic policy or public security shall comply with the principle of proportionality and hall be used exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.

Question 13

Article 30, what does it say

What about Article 31(1)?

Answer 13

• Article 30(1) There must be a good sufficient reason for the deportation
• Article 30(2) and the person concerned must be informed on these reasons

Article 31(1) Provides for access to judicial remedies to allow appeal against any decision on grounds of public service exemptions