WS 5: Free Movement of Persons Flashcards
Article 45(1) TFEU
Free movement of workers shall be secured within the Union
Article 45(2) TFEU
Migrant workers must not suffer discrimination based on nationality as regards their employment, remuneration and other conditions of work.
Are these articles directly effective?
Yes
Lawrie Blum [1986]
- A ‘worker’ is a person who (Lawrie Blum [1986] definition)
a. Performs services for another person;
b. Under the control of that other person; and
c. Receives remuneration
ex p Antonissen [1991]
A workseeker is also a worker
Art 6(1) of D. 2004/38
all union citizens have right of residence for up to 3 months in another member state. There is no need for them to be carrying on an economic or any other activity
Art 14(4)(b) 2004/38
as long as union citizen can provide evidence he’s looking for work and have a genuine chance of getting work, they may not be expelled
Levin v Straatssecretaris van Justitie
- Part time workers are workers provided that (Levin v Straatssecretaris van Justitie):
a. Work is effective and genuine; and
b. Not on such a small scale as to be regarded as purely marginal and ancillary
Kempf [1986]
A German national, was a part-time music teacher. Supplemented income with state benefits. – a part-time worker is still a worker, even if he supplements income by other lawful means, including public benefits
Steymann
a. Unpaid worker for religious community, if Steymann:
i. Contributes towards community’s economic activities
ii. Receives benefits for this contribution, as a form of indirect wage
Bettray
b. A drug addict in rehab is NOT a worker – cos work undertaken to benefit him, he is not carrying out economic activity (Bettray)
How is nationality decided?
Nationality is decided by the MS of which nationality is claimed (Micheletti [1992] + Declaration on Nationality attached to the Treaty on European Union says same thing.
R v Saunders [1979]
e. Article 45 TFEU does not apply to totally internal situations
Van Duyn
confirmed that Art 45 had direct effect.
Primary source of right of residence?
Art 45(3) TFEU: rights to ‘move freely within the territory of Member States” and right to “stay” in host state while working and “remain” thereafter subject to conditions.
Who does 2004/38 cover?
Union Citizens (Art 3(1)(a)) and their family members (Art 3(1)(b))
Art 4
a. Art 4: Right of exit
Document: For Union citizens: ID card or passport; for family members who are non Union citizens: passport
Art 5
Right of entry
Documents required for right of entry?
Document: For Union citizens: ID Card or passport; for family members who are non EU: passport and possibly a visa required by MS they are entering. However, host state must give every facility to obtain such a visa, free of charge, issued quickly as possible.
Art 6
Right of residence up to 3 months
Art 6(1)
RofResidence up to 3 months and Don’t have to be pursuing economic or any other activity activity (Art 6(1))
Art 6(2))
extends this right to non-Union national family member ‘accompanying or joining’ the migrant Union citizen
Documentation for right of residence for up to 3 months
Document: Both Union citizens and family members of other nationalities are required to hold a valid ID card or passport during their stay.
Art 7 and who it applies to
Right of residence for Union citizens longer than 3 months. Applies to:
i. Workers and self-employed
ii. Sufficient resources to support themselves and sickness insurance
iii. Students who declare they have sufficient resources to support themselves during their course and who have sickness insurance (inc school children)
iv. Family members of the above whatever their own nationality
Documentation required for residence of longer than 3 months
Document: Art 8: Registration with authorities of host state may be required, resulting in the issue of a registration certificate. Article 8(3)-(5) lists the documents which may be required upon registration
Articles 16
Permanent residence after 5 years continuous legal residence by Union citizen. 16(2) says it applies to family members who are not nationals of a Member State if they have resided with the Union citizen for that time. 16(4): the right can only be lost through 2 consecutive years absence from host state
Article 19
Union citizens should apply to host state for a document certifying permanent residence
Article 20
Any family members who are not Union citizens should apply for a permanent residence card
Art 17-18
Permanent residence Prior to 5 years if incapacitated to work
Procureur du Roi v Royer [1976]
The right of residence is not conferred by any of the documents mentioned. This is conferred by the Treaty and secondary legislation. Documents are merely evidence that an individual does actually have that right
Art 5(3) & 9(3)
non-compliance with administrative formalities may make the person concerned liable to proportionate and non-discriminatory sanctions
Article 2(2) 2004/38 Definition of family member?
a) Spouse
b) Registered partner (if the host member state sees this as equivalent to marriage)
c) Direct descendants who are under 21 or are dependents, and those of the spouse
d) Direct ascendants who are dependents those of the spouse
Article 3(2): Other individuals that have entry/residence rights
a. Other family members = dependents or members of the household of the UC or where serious health grounds strictly require the personal care of the family member
b. Durable relationship - duly attested
Provision for right of family member to stay for longer than 3 months
Article 7(1)(d) 2004/38
Death or departure of UC: Article 12(1)
death/departure doesn’t affect the rights of the UCFMs
Article 12(2) 2004/38
Departure or death doesnt affect the rights of Non-UCFMs so long as they have resided in the host-MS for one year.
Article 12(3) Death or departure
Departure or death of UC will not affect the right of residence of children/parent who has custody irrespective of the nationality (if the kids are at school long term there)
Sandhu [1985] House of Lords
An english case so merely persuasive authority in other jurisdictions. Indian man marries a German woman and they live in the UK. Marriage breaks down, wife returns to Germany
House of Lords: He had lost his right of residence once worker returned to Germany. 12(3) 2004/38. says can stay where they are custodians of kids in full time education. Silent about postiion where no kids
Article 13(1) 2004/38
Divorce or anullment doesnt affect the rights of UCFMs
A 13(2) 2004/38
Non-UCFMs not affected by divorce or annullment if:
a) Prior to divorce, together for 3 years, and one of these spent in host MS
b) Partner has custody of UCs kids
c) Difficult circumstances (e.g. domestic violence)
d) Partner has a right of access to minor child in the host state for as long as required. (still subject to article 12(2)
Diatta [1985]
Senagalese woman married to french man. She went to live with him in germany. later she left him and moved into separate accomodation with intention of divorce. German authorities argued she was no longer true spouse as no longer lived in Germany.
ECJ - Mrs Diatta was still a workers spouse and no need for her to live with him.
Surinder Singh 1992
ECJ - returning migrant workers can bring non-union spouses home with them. If they weren’t this would deter workers from leaving their home MSs
Define expulsion and deportation
expulsion = refusing someone entry deportation = termination rights of residence and forcing someone to leave
Article 45(3) TFEU
public policy public sec public health
Article 27(1) 2004/38
expulsion and deportation cannot be used for purely economic purposes
A 27(2) 2004/38
expulsion or deportation Must be proportionate. Also, must be based exlusively on the personal conduct of the individual. Must not be carried out on the grounds of previous criminal convictions in themselves. must be a current threat to ph ps pp.
Van Duyn [1974]
UK government refused Dutch national leave to enter UK to work for Church of Scientology as they considered the group’s activities to be harmful.
ECJ - Current association with a group/body can constitute personal conduct under s.27(2) directive. The activities of the group do not necessarily have to be illegal for MS to expel/deport - it is enough that it is socially harmful.
R v Bouchereau 1977
French national working in UK convicted for 2nd time in 6 months of drug possession. UK want to deport.
ECJ - said past convictions only relevant inso far as a person shows a propensity to reoffend - past offences may sometimes be sufficient.
Adoui and Cornvaille v Belgium 1982
Belgium refused residence to 2 French nationals working as prostitutes. Belgian law did not prohibit prostitution only incidental activities.
HELD - where a member state has no domestic legislation against the activity, they cannot refuse residence to non-nationals on that basis.
R v Carpenter [2002]
Filipino national had overstayed her tourist visa married to Mr Carpenter, a British national who ran a business selling advertising space in journals. Breach of Art. 8 - Deport Mrs Carpenter was a disproportionate interference.
Commission v France
french required french merchant ships to employe a ration of 3 french crew to non french
Art 1(2) reg 492/2011
the right to take up employment with same priority as nationals of the host member state.
Arti 3(1) 492/2011
Allows conditions relating to linguistic knowledge requried by reasona fo the nature of the post to be filled e.g. UK salesman must be able to speak English. Justifiable restriction. (Groener v Minister for Education)
A 6(1) 492/2011
Engagement and recruitment must not be subject to discriminatory tests or other criteria
A 7(1) 492/2011
No discrimination on the grounds of nationality in relation to ANY condition of employment
A 7(3) 492/2011
Training. Foreign nationals should be given access to training on the same terms as home nationals.
Art 7(2) 492/2011
same social and tax advantages (e.g. perks, tax rates etc.) Cristina v SNCF [1975]
Adoui and Cornvaille v Belgium 1982
Belgium refused residence to 2 French nationals working as prostitutes. Belgian law did not prohibit prostitution only incidental activities.
HELD - where a member state has no domestic legislation against the activity, they cannot refuse residence to non-nationals on that basis.
R v Capenter [2002]
Filipino national had overstayed her tourist visa married to Mr Carpenter, a British national who ran a business selling advertising space in journals. Breach of Art. 8 - Deport Mrs Carpenter was a disproportionate interference.
Commission v France
french required french merchant ships to employe a ration of 3 french crew to non french
Art 1(2) reg 492/2011
the right to take up employment with same priority as nationals of the host member state.
Arti 3(1) 492/2011
Allows conditions relating to linguistic knowledge requried by reasona fo the nature of the post to be filled e.g. UK salesman must be able to speak English. Justifiable restriction. (Groener v Minister for Education)
A 6(1) 492/2011
Engagement and recruitment must not be subject to discriminatory tests or other criteria
A 7(1) 492/2011
No discrimination on the grounds of nationality in relation to ANY condition of employment
A 7(3) 492/2011
Training. Foreign nationals should be given access to training on the same terms as home nationals.
Art 7(2) 492/2011
same social and tax advantages (e.g. perks, tax rates etc.) Cristina v SNCF [1975]
URBSFA v Bosman version of Cassis de Dijon
“rules could be justified if they pursued a legitimate aim compatible with the Treaty and were justified by pressing reasons of public interest.”
