Chiara Berneri, Lecturer at BPP Law School
When can an EU citizen who lives in his or her own Member State claim a right under EU law to be joined by his or her third-country national family members? Traditionally EU law cannot be invoked at all in such cases, but there are important exceptions from that rule. The Court of Justice ruled on the two most important exceptions in two separate judgments of 12 March, following the December 2013 opinion of Advocate-General Sharpston (see the previous blog post on this opinion). Unfortunately, these judgments contained some unpleasant surprises.
Clarifying the Singh judgment: the O and B case
In 2007 O (a third-country national) and sponsor O (ie the Dutch citizen related to O) took residence in Spain. In reality, two months after arriving in Spain, in 2007, sponsor O returned to the Netherlands because she could not find a job there. However, since her departure, she continuously flew to Spain over weekends and enjoyed services there. Since 1 July 2010 O has been registered as residing with sponsor O in the Netherlands. However, his application for a document showing lawful residence was refused.
B is a Moroccan national who lived in the Netherlands, since 2002, with sponsor B (a Dutch citizen). After being sentenced to two months’ imprisonment for using a false passport he invoked the ‘Belgian route’ well-known to Dutch immigration lawyers, moving to Belgium where sponsor B rented out a flat for them. Since sponsor B was not able to find a job in Belgium she moved back to the Netherlands but came back every weekend to spend time with B. The couple got married in Morocco in 2007. In 2009 the Netherlands lifted the declaration of undesirability against B. The couple moved to the Netherlands. B applied for a document showing his lawful residence but it was refused.
The Court’s judgment
The Court starts its reasoning in the O and B judgment by pointing out the essence of the question asked by the referring court: whether Directive 2004/38 (the EU citizenship Directive) and Art. 21 TFEU (the Treaty rule on EU citizens’ right to move and reside freely) must be interpreted as precluding a Member State from refusing a right of residence to a third country national who is a family member of a Union citizen holding the nationality of that Member State, following the return of that citizen to that Member State, in circumstances in which the Union citizen resided with the family member in another Member State solely by virtue of being a EU citizen. The Court, recalling its previous judgments, began by stating that neither Directive 2004/38 nor Art. 21(1) TFEU confer any autonomous right on third country nationals but, on the contrary, any rights conferred on third country nationals by provisions of EU law concerning Union citizenship are rights derived from the exercise of freedom of movement by a Union citizen.
With regard to Directive 2004/38, the Court pointed out that the subject of the directive is the conditions governing the exercise of the right of movement and residence of EU citizens and their family members in another Member State. Since, according to international law, a state cannot refuse entry and residence to its own nationals, it follows that Directive 2004/38 is intended only to govern the right of entry and residence of a Union citizen in a Member State other than the Member State of which he or she is a national. Hence, it follows that this Directive does also not intend to confer a derived right of residence on third country national family members of such EU citizens, unless those citizens have moved to another Member State.
At this point, the Court starts wondering whether a derived right of residence may, under some circumstances, be based upon Art. 21(1) TFEU. The Court recalls the well known deterrence doctrine by stating that the refusal to allow the right of residence to the third country national family members of an EU citizen who returns to his or her Member State of nationality after exercising free movement rights in another Member State (a ‘returnee’) would be such as to discourage that Union citizen from exercising his or her right of movement. It then mentions the previous Singh and Eind cases, in which it had ruled that an obstacle to leaving the Member State of which the worker or self-employed person is a national is created by the refusal to confer, when the worker or self-employed person returns to his or her Member State of origin, a derivative right of residence on the family members of that worker or self-employed person who are third country nationals.
Can then Singh and Eind be applied also to this case? The Court answers affirmatively. In fact, according to the Court, the grant of a derived right of residence to a third country national family member of a EU citizen who has resided in another Member State solely by virtue of his or her being a Union citizen, seeks to remove the same kind of obstacles that a worker or self-employed person (such as in Singh and Eind) leaving for another Member State would find.
The Court interestingly also specifies that the conditions of residence granted to the third country national family member should not be stricter than those provided by Directive 2004/38. This Directive in fact should be applied by analogy to returnees’ third-country national family members. This statement leads the Court to make some interesting considerations, which characterize the novelty of this case.
The Court states that an obstacle to free movement and residence arises only when the residence of the Union citizen in the host Member State has been sufficiently genuine. Since, as mentioned before, Directive 2004/38 applies by analogy, the Court describes the meaning of “sufficiently genuine” by referring to that Directive. According to the Court, if someone moves to another Member State pursuant to Art. 6(1) Directive 2004/38 does not intend to settle there (since Art. 6 concerns just the right to stay of the EU citizen in another Member State up until 3 months). Hence, in such a case, the denial of the third country national’s right of residence in the Member State of origin would not deter the EU citizen from exercising his/her right of free movement. On the other hand, if the Union citizen intends to exercise his or her right to reside for more than three months in another Member State pursuant to Art. 7(1) and (2) of Directive 2004/38 the potential denial of the right of residence to the third country national family member once back in the state of origin is likely to deter the citizen from leaving the state of origin in the first place. In fact if, in conformity with the conditions set out in Art. 7(1) and (2), family life is created and strengthened in the host Member State, the Union citizen has to be able to keep on enjoying the same conditions of family life once he or she returns to his or her Member State of nationality.
A fortiori, according to the Court, the same logic will apply in case the Union citizen and the family member were granted a permanent right of residence in the host Member State in accordance with Article 16(1) and (2) of Directive 2004/38. Interestingly, the Court concludes that it is up to the referring court to determine whether sponsor O and B settled and genuinely resided in the host Member State. It also adds that the scope of Union law cannot be extended to cover abuses.
Clarifying Carpenter: the S and G case
S is a Ukrainian national. Her Dutch son-in-law, sponsor S, has worked since 2002 for an employer established in the Netherlands but spends 30% of his time preparing and making business trips to Belgium, to which he goes at least once a week. S looks after her son-in-law’s child. S applied for a document certifying lawful residence in the Netherlands but it was refused.
G is a Peruvian national. She married sponsor G in Peru. Sponsor G lives in the Netherlands but works for a Belgian employer and he travels daily to Belgium. G’s application for a document certifying lawful residence in the Netherlands was rejected.
The Court’s judgment
In essence, the main question that the Court asks in its judgment is whether Directive 2004/38, Art. 20 TFEU (the basic rule on EU citizenship), Art. 21 TFEU and Art. 45 TFEU (the basic rule on free movement of workers) must be interpreted as precluding a refusal by a Member State to grant family residence rights to a third country national family member where the EU sponsor is a national of the Member State and resides regularly in that Member State but regularly travels to another Member State in the course of his professional activities. The Court initially refers to the previously mentioned case of O and B and confirms that Directive 2004/38 does not confer the derived right of residence on third country nationals who are family members of a Union citizen in the Member State of which that citizen is a national.
Next, the Court examines whether Art 45 TFEU could be applicable. Since the referring court cited the Carpenter case (where the CJEU held that an EU citizen providing services in another Member State might be able to rely on the Treaty rules on free movement of services in Article 56 TFEU in order to secure the entry and residence of a third-country national family member in his or her State of nationality) for this purpose the Court clarifies the scope of that judgment. In the CJEU’s view, the circumstances of Union citizens such as S and G do fall within the scope of Art. 45. Moreover, the Court confirms that its interpretation of Art. 56 TFEU in Carpenter is transposable to Art. 45 TFEU.
The Court then refers again to the deterrence approach by stating that a derived right of residence is based on the fact that a refusal to allow it would be such as to interfere with the exercise of fundamental freedoms guaranteed by the TFEU. Finally, it concludes that it is up to the national court to determine whether, in the circumstances of this case, the grant of a derived right of residence is necessary to guarantee the citizen’s effective exercise of the fundamental freedom guaranteed by Art. 45 TFEU. However, rather cryptically, it also adds that the mere fact that it might appear desirable that the child is taken care of by the Union citizen’s ascendant, it is not sufficient in itself to constitute a dissuasive effect.
Comments
The solutions proposed in both judgments are particularly controversial, especially when compared to A.G. Sharpston’s opinion. With regard to the case of O and B (the post-Singh case), the Court offers a completely different analysis than the one suggested by A-G Sharpston. The A-G did not agree with the idea that the EU citizen should reside in the host Member State for a certain amount of time before he or she can claim derived residence rights for his or her third country national family member, suggesting instead that the answer (whether the third country national should be allowed residence in the national Member State of his/her EU relative) depends on why the EU citizen and his/her family member(s) were not moving together. She pointed out that EU citizens enjoy the freedom to decide themselves how to exercise the right to a family life. The fact that some prefer to live with their family members and others might, at a particular moment, have other priorities or face difficulties to live together immediately does not mean that that they should not be allowed to enjoy the right of residence in the national Member State of the EU citizen. The only circumstance in which she seemed to suggest that the right of residence should not be granted is when a third country national family member and an EU citizen have decided that they no longer wished to live together as a couple.
However, the Court suggests that an obstacle to free movement and residence arises only when the residence of the Union citizen in the host Member State has been sufficiently genuine (i.e. residence pursued for more than three months, in accordance with Art. 7 Directive 2004/38). Surely, it is true that the test suggested by the Court seems to provide more clarity than the solution proposed by A-G Sharpston. Indeed, a test based on the lapse of time spent together in the host Member State by the family unit is more easily applicable. Nevertheless, it is also true that, by looking at the concrete application of the tests to the circumstances at stake (or at least at the suggestions that have been given to national courts), it seems that A-G Sharpston’s solution is potentially able to cover more situations.
The use of the test endorsed by the Court, most likely, will be applied by the Dutch national court as not granting, both to O and B, a right of residence in the Netherlands. Indeed sponsor O resided just for two months in Spain and sponsor B simply visited B at week-ends (at para 59 the Court rules out the possibility that short periods of residence have a cumulative effect of creating a derived right of residence for a family member of a Union citizen). On the other hand, A-G Sharpston, on the basis of her test, suggests that O should be granted a right of residence in the Netherlands (subject to the conditions and limitations of Directive 2004/38). With regard to B, A-G Sharpston instead suggests that he should not be granted residence in the Netherlands but simply because sponsor B is a partner and not an official family member (spouse) and, therefore, does not fall within the scope of Directive 2004/38.
The decision of the Court in O and B seems also to partially resonate with the new returnees rules inserted in the recent UK regulations 2013 [The Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2013], which require a British citizen to have transferred the centre of his/her life to another Member State in order to acquire a right of residence in the UK for his/her third country national family member seeking a right to reside in the UK upon their return. It is true that the judgment is not as strict as the rules themselves, which talk about transferring the centre of one’s life in the host Member State, whereas the Court just refers to the amount of months the EU citizen has to be there in order to claim family reunification (for a full discussion of the impact of this judgment on the UK rules, see the post in the UK free movement blog). However, it is also true that the requirement of having resided in the host Member State for the purpose of Art. 7 of Directive 2004/38 suggests a certain degree of integration and engagement in the host State that aligns the case more towards these new rules and detaches it more clearly from the solution proposed by A-G Sharpston.
This is even more evident if we consider that the Court points out that the scope of Union law cannot be extended as to cover abuses and that an abuse of Union law consists in “the intention to obtain an advantage from the European Union rules by artificially creating the conditions laid down for obtaining it”. If this extra consideration will be applied in future rulings, it is likely that the Court will end up granting third country national residence rights in the Member State of origin of the EU citizen just when the latter decided to move to another Member State for reasons that do not encompass taking advantage of the more friendly EU family reunification rules. Once again, this is quite different from what A-G Sharpston suggested in her opinion, in which she stated that the real issue is not the abuse of EU law but the free choice of the EU citizen to decide whether to move or not to move. A national measure that imposes movement restricts that choice and is contrary to Art. 21(1) TFEU.
As for the S and G case, the position of the Court again seems to be much stricter that the one endorsed by the Advocate-General. In relation to the specific circumstances concerning S, A.G. Sharpston suggests that, while evaluating the presence of a causal link with EU law, the referring Court should examine whether denying residence to S would cause sponsor S to seek alternative employment that would not involve the exercise of right of free movement or cause him to move with his family, including S, to another Member State. The Court, on the other hand, instead of indicating the elements that the referring court should take into account in order to achieve a fair solution, stated that the simple fact that it is desirable that the child is looked after by the third country national grandmother is not sufficient in itself to constitute a dissuasive effect to the free movement rights exercised by sponsor S. It would be interesting to find out on which grounds the Court dared to make such a bold statement which, furthermore, is not even supported by any concrete evidence.
Indeed, in Carpenter the Court at least pointed out how the circumstances of the case suggested that the separation of Mr and Mrs Carpenter would have been detrimental to their family life and to the conditions under which Mr Carpenter exercised his fundamental freedom because Mrs. Carpenter looked after Mr. Carpenter’s children and allowed him to pursue his business. In the circumstances of B no reference to the concrete facts of the case is made. Why was the presence of Mrs Carpenter in the UK essential and now the presence of O in the Netherlands superfluous? The Court, implicitly, seems to indicate a distinction based on different categories of relatives. If this is really the case, it is a pity that the Court missed an opportunity to specify why this difference should be in place. Moreover, if really discretion has to be given to national courts, is it fair to muddy the waters with this consideration?
Finally, unlike the O and B case, the Court in S and G did not find that Directive 2004/38 should apply by analogy but instead relied on Art. 45 TFEU. This means that, most likely, third country national family members will not be able to rely on the Directive conditions with regard to access to employment, social benefits etc. Hence, supposing that the national Dutch court will grant residence rights to S and G (apparently, this will be very unlikely in the case of S since the Court stated that the mere fact that it may appear desirable for the child to be cared for by the third country national this is not sufficient in itself to constitute a dissuasive effect to free movement), under which conditions will they be able to reside in the Netherlands? Will S be able to get a permanent residence permit or her right to stay will be simply functional to the needs of the grandson? In other words, will she have to move once the grandson will not need her care anymore? Also, will G be able to get a work permit? These are all open questions that the Court, sooner or later, will have to face.
Overall, it seems that the Court is starting to endorse a strict approach toward free movement cases involving residence rights of third country nationals. This has probably taken many by surprise since, after Metock, the Court really seemed to have moved the pendulum toward a more family friendly and liberal approach. Once again, it will be interesting to see how and if this new and surprisingly strict trend will be upheld by new judgments in the future.
Barnard & Peers: chapter 13
