Free movement of persons - non-economically active Flashcards
Source of EU citizenship
Article 20(1) TFEU - complement and not replace national citizenship
Free movement for EU citizenship
Article 21(1) TFEU
Rights of citizens
Article 22-24 TFEU
Issues raised by EU citizenship
a) Substance of EU citizenship
b) Conflict of competences between MS and EU (input versus output)
Development of nature and significance of citizenship
Complementary to national citizenship under the literal text of Art 20(1) TFEU
Fundamental status (Grzelcyzk, Baumbast)
Expanded personal test - how
Impinging on national prerogatives of nationality conferral
Expanded personal test - starting point
Conferring nationality is an exclusive national prerogative (Art 20(1) TFEU) (Kaur, Micheletti)
Expanded personal test - development
Member States must have due regard for EU law when exercising powers regarding nationality
EU has jurisdiction for conditions where EU citizen may lose their status, be deprived of rights attached to EU citizenship
(Rottmann, ZZ v UK)
Expanded personal test - current state
Seems to be a matter of CJEU to determine (MG Tjebbes)
Expanded material test - Constituent phase - starting point
Broad interpretation of economic migrant’s rights, including non-economic benefits/social advantages
Expanded material test - Constituent phase -rights of returning migrants
Surinder Singh (take one’s spouse with them without having to comply with national immigration rules)
Eind (returning national did not exercise economic activity upon return)
Expanded material test - Constituent phase -extending the rights of Union citizens beyond explicitly conferred Union rights
Gryzelcyzk (“implicit acceptance of certain level of financial solidarity” re student in final year with temporary financial difficulties - proportionality)
Baumbast (lacking health cover for emergencies within Host State - lawfully resided there for many years - proportionate application of “health insurance”)
Expanded material test - Constituent phase -strengthening rights by applying Art 18 TFEU directly to Art 21 TFEU
Maria Martinez Sala (non-contributory child-raising benefit rejected due to expiry of residence card for proof - nationals showed ID)
Bickel and Franz (language used in criminal proceedings - Italian was only allowed for nationals - Austrians asked to defend in German)
D’Hoop (special unemployment benefits for young people - student had not studied there)
Expanded material test - Constituent phase - obligation by MS not to render Art 21 TFEU right ‘ineffective’
Zu and Chen (Chinese child born in NI - automatically acquires Irish nationality - moves to Cardiff, claims residency)
Extended to ALL CARERS (Baumbast)
Expanded material test - Consolidation phase - Allowing exporting of benefits for non-economically active citizens
At first, cannot be given to non-economically active citizens (Even; war pensions)
Then allowed (Hagen and Tas-Hagen - war victims benefit in Netherlands, Nerkoska, war victim benefit in Poland)
Strict, required to export unless ‘objective justifications’ (Hendrix - disability benefit)
Expanded territorial test - gradual elimination of ‘wholly internal situations’
Schempp (divorced wife in Austrian - German husband cannot deduct maintenance payment from taxes)
Expanded territorial test - direct effect of Art 21 TFEU in ‘wholly internal situations’
Art 21 TFEU
Zambrano (Colombian moved to Belgium - unsuccessful asylum - became unemployed - refused unemployment benefits)
Expanded territorial test - direct effect of Art 21 TFEU in ‘wholly internal situations’ - response to Zambrano
Critical reception by Niamh Nic Shuibne: rise of the tolerated citizen (Court as rewriting fundamentals of EU law)
Zambrano Amendments in UK 2012 - exclude all Zambrano carers from mainstream benefits under national law
Genuine enjoyment does not require State to guarantee any particular quality of life (HC v Secretary of State for Work and Pensions, Sanneh v Hoem Secretary, Chavex-Vilchez)
Retrenchment phase - reasons
a) Economic austerity, Eurozone crisis
b) Deep impact on social spending
c) Enormous reaction to Zambrano
Retrenchment phase - characteristics
a) Hardening and generalisation of conditions/limits/duties
b) Disregard for Treaty requirements
c) Hegemonic attribution of supremacy to secondary law
Change by Spaventa
Directives as the floor of rights (Baumbast, Grzelczyk)
Now: Directives as floor and ceiling
Restricted territorial test
McCarthy (Uk national in UK but Irish nationality - Jamaican H not authorised)
Dereci (Turkish H, Austrian W - H no residence rights in Austria but main breadwinner - no exercise of FMP)
Iida (Japanese H, German W - mother/daughter live to Austria - H in Germany - not divorced - H wants permanent residency in Germany on the basis of daughter that has exercised FMP)
Ymeraga (Child in Luxembourg with uncle - uncle got citizenship - sought to obtain family permits for child’s parents and two brothers)
Alokpa (Togolese national with French children in Luxembourg - refusal of residency rights and order to leave - mother received state benefits - lack of residency rights/permit prevented her from taking up job offer)
Current application of Zambrano
a) Genuine, present and sufficiently serious threat (Rendon Marin, Chavez-Vilchez)
b) Any dependent who could not conceivably live independently and would oblige Eu citizen to leave the EU (KA v Belgium)
Case Study 1: family members
Article 2, Directive 2004/38
Spouse, partner with registered partnership, direct descendants, dependent directive relatives
Article 3(2)(a),(b), Directive 2004/38 Any other dependants unless justified
Case Study 1: family members (worker’s spouses)
Right of non-EU spouse to ‘accompany or join’ moving EU citizen only applies to non-EU spouse swho were lawfully resident in Home MS
(Akrich - married to Uk national subject to deportation orders - couple moved to Ireland, came back claiming returning migrant rights)
Case Study 1: family members (worker’s spouses) - expansion of rights
Akrich REVERSED in Metock (asylum seekers in Ireland subject to deportation orders with Irish partners)
- Not compatible with objective set out of obstacles to free movement of persons
- Directive does not deprive MS of all possibility of controlling entry rights
- Member States can adopt necessary measures to refuse, terminate, or withdraw any right conferred
Case Study 1: family members (worker’s spouses) - continued expansion of rights
EU family reunification rights continue to apply even if migrant worker/non-economic migrant acquires nationality of Host country, and even if non-EU spouse has previous criminal conviction and deportation
Naturalisation as ultimate sign of integration
(Toufik Lounes v SSHD)
Coman v RO (spousal visa in Romania where same-sex marriage is not recognised)
Case Study 1: family members (worker’s spouses) - separation or divorce
Art 13(2), Directive 2004/38
WAS pro-family Diatta v Land Berlin Surinder Singh Baumbast O and S Netherlands v Reed
Retreat from pro-family
Iida (limit to residence if not cohabiting, in same state)
Kuldip Singh (divorce must occur in Host country)
NA (no exception for domestic violence because husband left host country before divorce)
Case Study 1: family members (returning migrants)
Expansion (Surinder Singh)
Retreat
O and B (formalistic approach - EU citizen created or strengthened his family life, qualified Mary Carpenter)
S and G (desirable for child to be taken care by family member that is not EU citizen’s spouse =/= derive residence right)
Recent concession: any refusal of FR must be founded on extensive examination of applicant’s personal circumstances and be justified by reasons (Banger v UK)
Case Study 1: family members (dependents)
Art 2(d), Directive 2004/38
Expansion
Lebon (dependency is question of fact)
Jia (evidence of dependency can be adduced by any ‘appropriate means’)
Retreat
MS may impose particular requirements re dependency, so long as they are justified (Rahman)
Case Study 2: students
Art 24, Directive 2004/38
Requirements in Art 7(c), Directive 2004/38
Case Study 2: students - expanded rights
Implicit acceptance of certain level of financial solidarity (Gryzelcyzk)
Introduction of genuine link not just based on time, flexible approach (Bidar, Ioannidis)
Benefits for students can be exported (Morgan and Butcher)
Measures to curb influx of university students from France and Germany due to cap on places (Commission v Austria, Bressol Chaverot - both countries later passed even more restrictive legislation with directly discriminatory quotas)
Case Study 2: students - retreat
Genuine link based on time
a) Forster (bursary for working for small amount of hours weekly may be based on residency time of 5 years)
b) Braganca Linares Verruga (bursary for 5 years’ employment in Luxembourg to get exportable study grants for migrant children)
Case Study 3: jobseekers and welfare recipients - starting point
Jobseekers not entitled to equal treatment for social and tax advantages, only limited to access to employment (Lebon)
Case Study 3: jobseekers and welfare recipients - constituent phase
Unemployment EU citizen part of “workers”, can claim tax and social advantages
a) Collins (distinction between putative workers and those in employment, ‘genuine link’ with labour market)
b) Ioannidis (certain degree of integration required)
Case Study 3: jobseekers and welfare recipients - consolidation
a) Vatsouras (genuine link with labour market + objective of benefit must be analysed according to results and not formal structure)
b) Prete (genuine link criteria includes length of stay, job search intensity, personal ties)
c) Brey (two-step approach to genuine link)
1. High burden on Member State to carry out overall assessment of specific burden which granting social benefit would place on the national socail assistance system
2. Proportionality test
Case Study 3: jobseekers and welfare recipients - reactionary
Economically inactive citizens only claim for social benefits, motive for movement must be integration (Dano)
a) Implies end of Levin (motives irrelevant)
b) Implies end of Brey (proportionality test or ‘overall asssessment’ unnecessary)
c) Strict adherence to black letter (mplied end of Martinez-Sala)
d) Distinction between first-time job-seekers (real link + Dano) and second-time job-seekers (Vatsouras, Prete principles)?
- -> Clarified in Alimanovic: don’t have
- Strict interpretation
- No Brey type individual assessment
- Lower threshold for unreasonable burden
- EU citizenship no more fundamental status, not mentioned
Strict interpretation, no right to claim any welfare in first 3 months of residence (Garcia-Nieto)
Habitual residence test was indirectly discriminatory but justified based on need to protect Host MS finances (Commission v UK)
Case Study 3: jobseekers and welfare recipients - final state of the law
Brey (individual proportionality) eliminated after Dano and Alimanovic (state needs)
Fundamental shift towards centrality of national link of ‘belonging’, reaffirmation of responsibility of state of origin for economically vulnerable individuals
