Free movement of persons - non-economically active

Question 1

Source of EU citizenship

Answer 1

Article 20(1) TFEU - complement and not replace national citizenship

Question 2

Free movement for EU citizenship

Answer 2

Article 21(1) TFEU

Question 3

Rights of citizens

Answer 3

Article 22-24 TFEU

Question 4

Issues raised by EU citizenship

Answer 4

a) Substance of EU citizenship

b) Conflict of competences between MS and EU (input versus output)

Question 5

Development of nature and significance of citizenship

Answer 5

Complementary to national citizenship under the literal text of Art 20(1) TFEU

Fundamental status (Grzelcyzk, Baumbast)

Question 6

Expanded personal test - how

Answer 6

Impinging on national prerogatives of nationality conferral

Question 7

Expanded personal test - starting point

Answer 7

Conferring nationality is an exclusive national prerogative (Art 20(1) TFEU) (Kaur, Micheletti)

Question 8

Expanded personal test - development

Answer 8

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)

Question 9

Expanded personal test - current state

Answer 9

Seems to be a matter of CJEU to determine (MG Tjebbes)

Question 10

Expanded material test - Constituent phase - starting point

Answer 10

Broad interpretation of economic migrant’s rights, including non-economic benefits/social advantages

Question 11

Expanded material test - Constituent phase -rights of returning migrants

Answer 11

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)

Question 12

Expanded material test - Constituent phase -extending the rights of Union citizens beyond explicitly conferred Union rights

Answer 12

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”)

Question 13

Expanded material test - Constituent phase -strengthening rights by applying Art 18 TFEU directly to Art 21 TFEU

Answer 13

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)

Question 14

Expanded material test - Constituent phase - obligation by MS not to render Art 21 TFEU right ‘ineffective’

Answer 14

Zu and Chen (Chinese child born in NI - automatically acquires Irish nationality - moves to Cardiff, claims residency)

Extended to ALL CARERS (Baumbast)

Question 15

Expanded material test - Consolidation phase - Allowing exporting of benefits for non-economically active citizens

Answer 15

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)

Question 16

Expanded territorial test - gradual elimination of ‘wholly internal situations’

Answer 16

Schempp (divorced wife in Austrian - German husband cannot deduct maintenance payment from taxes)

Question 17

Expanded territorial test - direct effect of Art 21 TFEU in ‘wholly internal situations’

Answer 17

Art 21 TFEU

Zambrano (Colombian moved to Belgium - unsuccessful asylum - became unemployed - refused unemployment benefits)

Question 18

Expanded territorial test - direct effect of Art 21 TFEU in ‘wholly internal situations’ - response to Zambrano

Answer 18

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)

Question 19

Retrenchment phase - reasons

Answer 19

a) Economic austerity, Eurozone crisis
b) Deep impact on social spending
c) Enormous reaction to Zambrano

Question 20

Retrenchment phase - characteristics

Answer 20

a) Hardening and generalisation of conditions/limits/duties
b) Disregard for Treaty requirements
c) Hegemonic attribution of supremacy to secondary law

Question 21

Change by Spaventa

Answer 21

Directives as the floor of rights (Baumbast, Grzelczyk)

Now: Directives as floor and ceiling

Question 22

Restricted territorial test

Answer 22

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)

Question 23

Current application of Zambrano

Answer 23

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)

Question 24

Case Study 1: family members

Answer 24

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

Question 25

Case Study 1: family members (worker’s spouses)

Answer 25

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)

Question 26

Case Study 1: family members (worker’s spouses) - expansion of rights

Answer 26

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

Question 27

Case Study 1: family members (worker’s spouses) - continued expansion of rights

Answer 27

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)

Question 28

Case Study 1: family members (worker’s spouses) - separation or divorce

Answer 28

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)

Question 29

Case Study 1: family members (returning migrants)

Answer 29

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)

Question 30

Case Study 1: family members (dependents)

Answer 30

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)

Question 31

Case Study 2: students

Answer 31

Art 24, Directive 2004/38

Requirements in Art 7(c), Directive 2004/38

Question 32

Case Study 2: students - expanded rights

Answer 32

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)

Question 33

Case Study 2: students - retreat

Answer 33

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)

Question 34

Case Study 3: jobseekers and welfare recipients - starting point

Answer 34

Jobseekers not entitled to equal treatment for social and tax advantages, only limited to access to employment (Lebon)

Question 35

Case Study 3: jobseekers and welfare recipients - constituent phase

Answer 35

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)

Question 36

Case Study 3: jobseekers and welfare recipients - consolidation

Answer 36

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

Question 37

Case Study 3: jobseekers and welfare recipients - reactionary

Answer 37

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)

Question 38

Case Study 3: jobseekers and welfare recipients - final state of the law

Answer 38

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