Union Citizenship

Question 1

Micheletti

Answer 1

Joint Argentinian & Italian national, moved from Argentina to Spain

Spanish Law: where someone is a dual national and neither of those nationalities is Spanish, nationality is determined by the habitual residence before his arrival to Spain

HELD: under international law, it is for each Member State, HAVING DUE TO COMMUNITY LAW, to lay down the conditions for the acquisition and loss of nationality

Question 2

Joint Argentinian & Italian national, moved from Argentina to Spain

Spanish Law: where someone is a dual national and neither of those nationalities is Spanish, nationality is determined by the habitual residence before his arrival to Spain

HELD: under international law, it is for each Member State, HAVING DUE TO COMMUNITY LAW, to lay down the conditions for the acquisition and loss of nationality

Answer 2

Micheletti

Question 3

Kaur

Answer 3

Indian origin, born in Kenya

• > ‘citizen of the UK and colonies’ with no right of abode
• > became British Overseas Citizen following British Nationality Act 1981
• > despite no right of abode, she found herself resident in the UK. Sought leave to remain, arguing she was a British national for the purposes of EU Law and therefore a EU citizen

HELD: declaration 1982 was simply an update to the -72 one, and it hasn’t been challenged by other states
-> that’s the declaration we should look at when determining a national

Question 4

Indian origin, born in Kenya

• > ‘citizen of the UK and colonies’ with no right of abode
• > became British Overseas Citizen following British Nationality Act 1981
• > despite no right of abode, she found herself resident in the UK. Sought leave to remain, arguing she was a British national for the purposes of EU Law and therefore a EU citizen

HELD: declaration 1982 was simply an update to the -72 one, and it hasn’t been challenged by other states
-> that’s the declaration we should look at when determining a national

Answer 4

Kaur

Question 5

Key Directives concerning citizenship of EU

Answer 5

• Directive 90/364: the right of residence
• Directive 93/96: right of residence for students
• Directive 90/365: right of residence for employees and self-employed persons
• Directive 2004/38: family unification

Question 6

Directive 2004/38

Answer 6

• applies to family members who are not EU citizens
• right of residence for up to 3 months with no residence permit
• right of permanent residence after 5 years
• must not become an undue burden on the social assistance arrangements of the Member State!

Question 7

Baumbast

Answer 7

Colombian woman marries German man

• > have 2 children: 1 Colombian, 1 German-Colombian
• the family lives in the UK: Mr used to work there, now a self-employed person working for German companies in countries outside of EU
• Mrs applied for indefinite leave to remain -> was refused

HELD:

• right of residence under Art 21 is free-standing, and subordinate to the legitimate interests of Member States
• citizens exercising the right must not become an undue burden on the state

Question 8

Colombian woman marries German man

• > have 2 children: 1 Colombian, 1 German-Colombian
• the family lives in the UK: Mr used to work there, now a self-employed person working for German companies in countries outside of EU
• Mrs applied for indefinite leave to remain -> was refused

HELD:

• right of residence under Art 21 is free-standing, and subordinate to the legitimate interests of Member States
• citizens exercising the right must not become an undue burden on the state

Answer 8

Baumbast

Question 9

Martinez-Sala

Answer 9

• resident in Germany since 1976, worked various jobs until the late 1980s
• residence permit until 1984, after that only documents applying for extension
• 1994: another permit, extended til 1995
• applied for child benefit a year before in 1993, rejected as not a German national and not have a residence permit

HELD:

• within the scope of EU citizenship as he is a national of a MS lawfully residing in the territory of another MS
• > can rely on Art 18 (discrimination based on nationality)
• > requirement that one has to have a residence permit to obtain benefit is discriminatory under Article 18

Question 10

• resident in Germany since 1976, worked various jobs until the late 1980s
• residence permit until 1984, after that only documents applying for extension
• 1994: another permit, extended til 1995
• applied for child benefit a year before in 1993, rejected as not a German national and not have a residence permit

HELD:

• within the scope of EU citizenship as he is a national of a MS lawfully residing in the territory of another MS
• > can rely on Art 18 (discrimination based on nationality)
• > requirement that one has to have a residence permit to obtain benefit is discriminatory under Article 18

Answer 10

Martinez-Sala

Question 11

Grzelczyk

Answer 11

• French national in Belgian uni
• supported himself for the first 3 years of the course, then applied for minimex
• was refused on the grounds of nationality

HELD: discrimination based on nationality under Art 18
“Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality”

Question 12

• French national in Belgian uni
• supported himself for the first 3 years of the course, then applied for minimex
• was refused on the grounds of nationality

HELD: discrimination based on nationality under Art 18
“Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality”

Answer 12

Grzelczyk

Question 13

Bidar

Answer 13

• French who moved to the UK as a teenager, completes secondary education in England without any need for social assistance
• goes to UCL to study economics and receives assistance with tuition fees but no maintenance grant
• UK requires that applicant must be ‘settled’ in the UK to receive maintenance grant

HELD: a 3-year residency period is permissible but a requirement to be ‘settled’ is too onerous and vague
-> prohibited under Art 18

Question 14

• French who moved to the UK as a teenager, completes secondary education in England without any need for social assistance
• goes to UCL to study economics and receives assistance with tuition fees but no maintenance grant
• UK requires that applicant must be ‘settled’ in the UK to receive maintenance grant

HELD: a 3-year residency period is permissible but a requirement to be ‘settled’ is too onerous and vague
-> prohibited under Art 18

Answer 14

Bidar

Question 15

Dano

Answer 15

To accept that persons who do not have a right of residence under Directive 2004/38 may claim entitlement to social benefits under the same conditions as those applicable to nationals of the host MS would run counter to an objective of the directive, namely preventing Union citizens who are nationals of other MSs from becoming an unreasonable burden on the social assistance system of the host MS

Question 16

To accept that persons who do not have a right of residence under Directive 2004/38 may claim entitlement to social benefits under the same conditions as those applicable to nationals of the host MS would run counter to an objective of the directive, namely preventing Union citizens who are nationals of other MSs from becoming an unreasonable burden on the social assistance system of the host MS

Answer 16

Dano

Question 17

Art 20: “additional to and not replace national citizenship”

Answer 17

Inserted by Treaty of Amsterdam - an assertion of the primacy of national citizenship?

Notice Grzelczyk: how can something that’s ‘additional’ also be ‘fundamental’v

Question 18

Saunders

Answer 18

Purely internal situations:

Can’t be applied to situations which are wholly internal to a Member State, ie where there is no factor connecting them to EU law

Question 19

Purely internal situations:

Can’t be applied to situations which are wholly internal to a Member State, ie where there is no factor connecting them to EU law

Answer 19

Saunders

Question 20

Garcia Avello

Answer 20

• Belgian law requires name of father
• Years later, the children sought to have their names registered according to Spanish naming practice
• Belgium argued they couldn’t rely upon Art 18&20 because they had no connection to EU law as they had never exercised the right of free movement

HELD: a link exists where you have a national from 1 MS living in another, and it’s not invalidated merely by the fact that they have held the nationality of the country in which they are resident since birth
-> Belgian nationality law breached Art 18

Question 21

• Belgian law requires name of father
• Years later, the children sought to have their names registered according to Spanish naming practice
• Belgium argued they couldn’t rely upon Art 18&20 because they had no connection to EU law as they had never exercised the right of free movement

HELD: a link exists where you have a national from 1 MS living in another, and it’s not invalidated merely by the fact that they have held the nationality of the country in which they are resident since birth
-> Belgian nationality law breached Art 18

Answer 21

Garcia Avello

Question 22

Zhu and Chen

Answer 22

Chen moved temporarily to Northern Ireland to give birth to her child so that she would receive Irish citizenship

HELD: NOT A PURELY INTERNAL SITUATION & why they acquired the citizenship was irrelevant

Article 18 and Directive 90/364, confer on a young minor who is a national of a Member State, is covered by appropriate sickness insurance and is in the care of a parent who is a third-country national having sufficient resources for that minor not to become a burden on the public finances of the host Member State, a right to reside for an indefinite period in that State. In such circumstances, those same provisions allow a parent who is that minor’s primary carer to reside with the child in the host Member State.

Question 23

Woman moved temporarily to Northern Ireland to give birth to her child so that she would receive Irish citizenship

HELD: NOT A PURELY INTERNAL SITUATION & why they acquired the citizenship was irrelevant

Article 18 and Directive 90/364, confer on a young minor who is a national of a Member State, is covered by appropriate sickness insurance and is in the care of a parent who is a third-country national having sufficient resources for that minor not to become a burden on the public finances of the host Member State, a right to reside for an indefinite period in that State. In such circumstances, those same provisions allow a parent who is that minor’s primary carer to reside with the child in the host Member State.

Answer 23

Zhu and Chen

Question 24

Rottmann

Answer 24

• originally Austrian, moved to Germany to acquire German nationality
• under Austrian law, deemed to have renounced his Austrian nationality after acquiring other
• > authorities withdraw naturalisation when they found out Rottmann was under investigation for multiple crimes in Austria

HELD:

• disapplied purely internal rule; falls under EU law
• > applies a proportionality test
• > appears to invert the order of supremacy of citizenship

“EU law does not oppose to a decision of a Member State decision withdrawing the nationality, granted by way of naturalisation, when it was obtained by fraud, and as long as that decision goes through the proportionality test in regard to its consequences and effects”

CRITICISED!!!

Question 25

• originally Austrian, moved to Germany to acquire German nationality
• under Austrian law, deemed to have renounced his Austrian nationality after acquiring other
• > authorities withdraw naturalisation when they found out Rottmann was under investigation for multiple crimes in Austria

HELD:

• disapplied purely internal rule; falls under EU law
• > applies a proportionality test
• > appears to invert the order of supremacy of citizenship

“EU law does not oppose to a decision of a Member State decision withdrawing the nationality, granted by way of naturalisation, when it was obtained by fraud, and as long as that decision goes through the proportionality test in regard to its consequences and effects”

CRITICISED!!!

Answer 25

Rottmann

Question 26

Criticism of Rottmann

Answer 26

1) all MS governments that submitted observations to the court agreed that the rules on the acquisition and loss of nationality fall within the competence of the Member States

2) AG said there’s a connection to EU law because Rottmann moved from A to G - court DISAGREED but continued to review the case anyway
* O’Gorman: adopting the AG’s approach would have been more consistent with jurisprudence

3) Davies: “If the MSs had actually wished to protect national citizenship freedom in a more effective and durable way, they needed to use a more explicit and unambiguous form of wording, and probably a somewhat harder instrument than a declaration. Indeed, the choice for this relativrly weak legal form, rather than a protocol, may almost be taken as a concession that there’s no serious intention to narrow the Treaty text, –”

Question 27

Ruiz-Zambrano

Answer 27

• Colombians who were granted visas to Belgium
• > apply for asylum
• > refused - couldn’t be deported due to civil war
• Zambrano signed a contract of employment despite not having a work permit
• Belgian nationality law: where a child born in the territory doesn’t acquire a nationality of any other country, thy acquire Belgian nationality
• Colombian nationality law requires the child to be registered if he is born outside of Colombia
• > Zambrano deliberaly didn’t register birth
• Z’s contract of employment temporarily suspended, and terminated following an inspection of his workplace
• > applied a residence permit on the basis of his children’s nationality
• > rejected because of exploit

HELD: “Art 20 precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as EU citizens”
-> appears to completely scrap the notion of a purely internal situation regarding citizenship

Question 28

“Art 20 precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as EU citizens”

-> appears to completely scrap the notion of a purely internal situation regarding citizenship

Answer 28

Ruiz-Zambrano

Question 29

McCarthy

Answer 29

Mrs British national born, resident in Northern Ireland

• > marries a Jamaican who lacks leave to remain in the UK
• > granted Irish passport
• > both apply for residence permit in the UK as EU nationals resident in UK
• -> refused

HELD:

1) Mrs McCarthy not a beneficiary of Directive 2004/38
2) “the fact that a EU citizen has multiple nationalities of Member States doesn’t mean he has made use of his right to freedom of movement”

= purely internal situation when a national of MS but living in another, although they had never moved

Question 30

Mrs British national born, resident in Northern Ireland

• > marries a Jamaican who lacks leave to remain in the UK
• > granted Irish passport
• > both apply for residence permit in the UK as EU nationals resident in UK
• -> refused

HELD:

1) Mrs was not a beneficiary of Directive 2004/38
2) “the fact that a EU citizen has multiple nationalities of Member States doesn’t mean he has made use of his right to freedom of movement”

= purely internal situation when a national of MS but living in another, although they had never moved

Answer 30

McCarthy

Question 31

‘Not a purely internal situation’ cases

Answer 31

• Garcia Avello: nationals of a MS living in another, although they had never moved
• Rottmann: national of a MS, living in there, had moved (though that was deemed irrelevant)
• Ruiz-Zambrano: nationals of a MS, living in there, had not moved