RETAINED EU LAW 2

Question 1

What does Article 45 of the TFEU provide? Namely Article 45(2).

Answer 1

• free movement of workers is guaranteed
• gives EU worker right of entry and residence for the purpose of taking up employment
• article 45(2) says that any discrimination based on nationality between workers of Member States as regards to employment, remuneration and other conditions of work and employment

Question 2

What does Article 5(1), 6(1), 7(1) and 16(1) of Directive 2004/28 allow for Union citizens?

Answer 2

Artice 5(1)
- grants Union citizens moving from their home State the right to enter another Member State simply on production of passport or NI card

Article 6(1)
- grants Union members right of residence of up to three months in host state given they are not an unreasonable burden on social assistance of host state

Article 7(1)
- the following categories of people maintain the right of residence for more than three months:
a) workers and self employed
b) people with sufficient resources to support themselves and their family who have comprehensive sickness insurance
c) students who declare that they have sufficient resources to support themselves and their family members and have CSI
d) family members of the Union citizens referred to in a– c

Article 16(1)
- the right of permanent residence after 5 years

Question 3

Who counts as a family member under Directive 2004/38 Article 2(2)?

Answer 3

2(2)(a) - a spouse

2(2)(b) - the Union citizen’s registered partner if host state treats registered partnership as = marriage

2(2)(c) - direct descendants who are <21 or are dependants of spouse or registered partner e.g children

2(2)(d) - dependant direct relatives in ascending line, those of spouse or registered partner e.g parents

Question 4

What rights do the accompanying family members who are accompanying migrant Union citizens have under Article 5(1), 6(2), 7(2), 16(2)?

Answer 4

5(1) - grants them the right to enter the host State on production of passport or NI card, host state may require a visa but this is just a formality under 5(2)

6(2) - a right of residence up to three months in host State when accompanying or joining a Union citizen

7(2) - a right of re since for more than three months when accompanying or joining a Union citizen covered by article 7(1)(a-c)

16(2) - a right of permanent residence fêter 5 years

Question 5

What about other family members e.g a non dependent child over 21 or non dependant parents?

Answer 5

• they may benefit from Article 3(2)
• here it says host must facilitate their entry ut they will have fewer rights that those under s2(2)

Question 6

Does a partner of the Union citizen qualify as a family member?

Answer 6

• no
• Netherlands State v Reed
• spouse does not include non marital relationships

Question 7

What would happen to the spouse’s rights if the married couple separate and live in separate houses?

Answer 7

• Diatta v Land Berlin
• the rights of the non working spouse are not dependent on their residing with their partner
• their rights would only terminate if the worker leaves the host state

Question 8

What if the worker leaves the host state and the spouse is a Union citizen?

Answer 8

• they may be able to activate their own primary right of residence under Directive 2004/38 by finding work

Question 9

What if the worker leaves the host state and the spouse is not a Union citizen?

Answer 9

• Article 12(3) of DIRECTIVE 2004/38 gives a spouse who has custody of minor children in education has a right to remain following Union citizen’s leave
• silent on position where no children involved

Question 10

Can deportation follow divorce?

Answer 10

• Baumbast v Secretary of State for the Home Dept
• the mother of children who was entitled to remain having been awarded custody

Question 11

How is nationality interpreted? What about dual nationality?

Answer 11

• entirely dependent on legislation in each Member state
• e.g Micheletti v Delgacion del Gobierno en Cantabria
• dual national of Argentina and Italy who sought entry in Spain
• entry was refused because under Spanish law the nationality of the state in which a person had last been habitually resident was recognised —> Argentina
• CoJ said that as he was Italian national under Italian law, he was an EU migrant worker protected by Article 45 of TFEU
• his entry could not be denied

Question 12

What if the worker becomes involuntarily unemployed?

Answer 12

• Directive 2004/ 38 will continue to guarantee them right to reside in the host state
• however if they become voluntarily unemployed their position is changed
• now they would be disqualified from social security benefit
• they will still have right of residence simply by being citizen of another member state
• can stay if become disabled or reach retirement age under this directive

Question 13

Can an individual claim the rights of a worker if their work is part time? What if they’re being paid below minimum wage?

Answer 13

• yes under Levin v Staatssecretaris van Justile

Question 14

What terms of employent can an EU national be entitled to expect?

Answer 14

• the same terms that are offered to national of host state
• no discrimination in terms of condition of employment, dismissal, social and tax advantages , training and union membership

Question 15

What about an EU national’s social security rights?

Answer 15

• social security rights are regulated by Regulation 883/2004
• guarantees to EU nationals the social security benefits of the host state

Question 16

Does an EU national have a right of entry to look for work?

Answer 16

• Article 45 TFEU has been interpreted to mean that an EU national has a right of entry to look for work and a reasonable period of residence to find it

Question 17

When does the TFEU allow Member states to derogate?

Answer 17

• Article 45(3) TFEU permits derogations on grounds of public policy/ public security and public health
• Directive 2004/38 makes it clear that only personal conduct can be taken into account
• even terrorists will be permitted entry give that they aren’t showing any present threats
• family members can only be refused entry where the directive allows it to refuse entry to the worker they accompany

Question 18

If an EU national or a family member is refused entry or residence rights by a Member State’s immigration authorities then what must they do? What about if an EU national is being discrimated against in workplace?

Answer 18

• they will be allowed to invoke their EU rights before the appropriate immigration authority or court, or as a defence in criminal proceedings where deportation is being considered
• if an EU national believes that they have been discriminated against in relation to employment, they should follow the appropriate national procedure in the host State to obtain a suitable remedy, eg by suing their employer before an employment court or tribunal

Question 19

The UK government adopted the EU Settlement Scheme under the terms of the Withdrawal Agreement requiring EU citizens resident in Uk to do what?

Answer 19

• requiring EU citizens resident in the UK to obtain pre- settled or settled status to retain their right to live in the UK.
• Failure to apply for pre- settled or settled status by the deadline results in the loss of the right to reside in the UK. The deadline was 30 June 2021, though may be extended if the applicant has a good reason. Settled status is available to EU citizens who have been continuously resident in the UK for five years or more and very much equates to permanent residence. Pre- settled status is available to EU citizens who have been resident in the UK for fewer than five years. It does not grant permanent residence, but allows the applicant to stay in the UK for a further five years from the date they obtained pre- settled status. EU citizens who have been granted pre- settled status may apply for settled status once they have been in the UK for five years, and must do so before their pre- settled status expires; otherwise they will lose their right to reside in the UK. As well as a right of residence, settled and pre- settled status secures other rights such as the right to work, to access public services and not to be discriminated against on grounds of nationality. The issue of CSI has led to some debate as it was believed, on a strict interpretation of the Withdrawal Agreement, that students and persons of sufficient resources needed it to acquire settled or pre- settled status. The reason for this is that the right to reside granted by the
  English Legal System and Constitutional Law
  Withdrawal Agreement depends on the applicant satisfying the conditions in Directive 2004/ 38 which requires students and persons of sufficient resources to have CSI. This could have been particularly problematic for EU students as during the UK’s membership of the EU they had access to the UK National Health Service in the same way as British citizens resident in the UK; hence they did not need to obtain CSI to access medical treatment. However, the UK Government waived the requirement for applicants under the EU Settlement Scheme to have CSI. Moreover, in March 2022 the ECJ ruled in VI v Her Majesty’s Revenue and Customs (Case C-247/ 20) ECLI:EU:C:2022:177 that access to the NHS satisfied the requirement for CSI. The following example considers the Withdrawal Agreement and citizens’ rights.