The Asymmetry in the Right to Free Movement of European Union Citizens: the Case of Students

Francesca Strumia*, Connor Brown**

 *Lecturer in Law, University of Sheffield

** LLB Law European and International, University of Sheffield

This post reflects the preliminary results of a research project conducted as part of the Sheffield Undergraduate Research Experience programme (SURE). It also builds on a presentation at the International Society of Public Law (ICON-S) annual conference in New York on 2nd July 2015

INTRODUCTION

Concerns for strained public resources, weakened trans-national solidarity and disaffection with the idea of ‘ever closer union’ in Europe have made a first victim in public debate: the free movement of persons. This fundamental freedom at the basis of the project of integration conjures up all the above worries: the guarantee of non-discrimination of European Union migrants regardless of their nationality seems a costly one for Member States to uphold; the ‘minimum degree of solidarity’ that free movement of the non-economically active calls for could not resonate less with the European Union public; and if intended as a right for citizens, rather than just for workers, free movement evokes a ‘federalist’ idea of Europe that is heresy in a union that wants to be looser rather than closer. On this background it is easy to see how what was once the ‘dream’ of free movement has become, in many respects, the ‘nightmare’ to paraphrase the title of a 2014 editorial in the Common Market Law Review.

But how far does the ‘nightmare’ go, legally speaking? Two cases decided in the last few months, Dano and Martens, offer a viewpoint in this respect. The two cases have little in common: one is about ‘welfare tourists’, the other is about students; one was much talked about, the other raised little attention. However they do share one element: they reconfirm a difference in treatment between claims against host Member States and claims against home Member States, difference that has come to characterize the law on free movement of European Union citizens. The former claims are subject to stricter conditions - Dano re-emphasizes that a non-economically active migrant does not have a right to reside in a host Member State, let alone a right to non-discrimination there, if she is a burden for the host Member State (see further discussion of Dano here). The latter are more strongly protected - Martens confirms that rigid residence requirements for exportable study grants are a disproportionate way for Member States of origin to avoid financial burdens.

The result is an asymmetry, in cases involving mobility of the non-economically active, between protection of a right to entry (i.e. the right to reside in a host Member State and claim benefits there on a non-discrimination basis) and protection of a right to exit (i.e. the right to leave and export benefits and entitlements from a home Member State). In part, this asymmetry descends from the very evolution of the Court’s free movement test, from one looking for discrimination to one looking for hindrance to movement, and in particular for “any national measures which even though applicable without discrimination on grounds of nationality, are capable of hindering or rendering less attractive the exercise by community nationals of the fundamental freedoms guaranteed by the treaty” (CJEU judgment in Government of the French Community and the Walloon Government v. Flemish Government). The way the test plays out in non-workers cases signals in any case a shift in the understanding of relevant free movement rights – a shift that leads to question for whom free movement is a financial burden, to what extent it involves transnational solidarity and how close is the union that it reflects.

This asymmetry emerges with peculiar clarity in the law on student mobility, of which Martens was the latest expression. This is a particularly significant field for free movement of persons as it has been the forefront of legal change in the context of the evolution of free movement from a right for workers to a right for citizens. In addition, encouraging student mobility is a self-standing Treaty objective (art 165(2) TFEU).  In numerical terms, the importance of student mobility is also on the rise. Between 2002 and 2012, the number of EU students studying in a EU country other than their own (or in a non-EU EEA country or EU candidate country) underwent an 87% increase, from 354,200 to 663,700, and in a single year between 2011 and 2012 it increased by 23%, from 540,900 to 663,700 (Eurostat data).

THE ASYMMETRY IN THE STUDENTS’ CASE LAW

Upon exploring students’ case law it seems, on a prima facie basis, that the asymmetry reigns true in how the law treats on the one hand certain “entry-type claims” - e.g. residence in a host Member State for purposes of study and right to obtain maintenance aid in a host State, and certain “exit-type claims” - e.g. portable study finance and tax relief in the home Member State for study fees paid in a host Member State. In the former respect, secondary legislation (Directive 2004/38, the citizens’ Directive) recognizes, implementing early case law (Raulin), a right to reside for students, however this is subject to resources and sickness insurance requirements; and maintenance aid is only available to EU students after five years of residence in the host Member State. In the latter respect, case-law has recognized the students’ right to export study grants from a Member State with which they can show a genuine link, and students and their families are entitled to claim tax relief in the home Member State for fees paid in a host State. A counter-trend element is education fees: EU students are entitled to equal treatment with host State nationals in this respect, which arguably strengthens their claim to entry. This is however in keeping with early case law pre-dating the advent of European Union citizenship (Gravier).  Beyond the prima facie contrasts, the Court’s reasoning differs in applying a similar test to claims on the entry and exit side: this is clear in cases concerning respectively maintenance loans and grants in a host State, and portable study finance.

Maintenance Loans/Portable Study Finance

Residence requirements to obtain maintenance aid or to export study finance are at best a hindrance to free movement, and may also be discriminatory. However, in order to avoid migrant students becoming an unreasonable financial burden, it is in principle legitimate for Member States to offer study finance only to students who have demonstrated a degree of integration into the paying State’s society(Bidar). In practice however what is a proportionate requirement for these purposes differs, in the Court’s case law, for host States and home States. In cases on maintenance aid in a host State, the Court has upheld a rigid five year residency rule as a necessary and sufficient means to prove integration (Förster). A fixed pre-determined requirement protects legal certainty, according to the Court.

In cases on portable study grants, the Court takes a different view. It finds all kinds of pre-determined residence requirements – three-year residence (Prinz and Seeberger), permanent residence in home State or grant limited to host State of permanent residence (Thiele Meneses), three-out-of-six-previous years (Martens), disproportionate. The same three-out-of-six rule had been the subject of an infringement proceeding in 2012 in which it was found to be a discriminatory violation of free movement of workers. Interestingly, in the relevant case (Commission v Netherlands) the rule had been considered from a right to entry perspective (entry of migrant workers in the Netherlands and equal treatment in respect of study finance).

What the court suggests in relevant cases is a more flexible approach to assessing integration: taking into account not only length of residence but also qualitative links such as nationality, educational history, family, employment, language skills and other social and economic factors. The court also corroborates its stricter scrutiny of relevant residence requirements by emphasizing the very importance of students’ and teachers’ mobility to the project of integration (art 6(e) and 165(2) TFEU), an element in whose respect the court remains silent in host State maintenance aid cases.

Genuine Links and Financial Burdens

As a result the same court that goes along with host Member States’ reluctance to support entrant students if not after years of residence, is unwilling to hinder students who wish to export entitlements. In particular, an unspoken implication of the Court’s approach is that nationality is an important alternative to residence in proving attachment, to the point that nationals may be allowed to export study finance even from home States they have barely ever entered (Thiele Meneses, involving a German national who grew up in Brazil; Martens, involving a Dutch national who had spent more time in Belgium than in the Netherlands).

Further, the court’s approach indicates that the Member States’ interest in avoiding systemic financial burdens has a different weight when opposed to claims from incoming students than when opposed to claims from outgoing students. This is confirmed in cases on tax relief in a home Member State in respect of school and university fees paid in a host Member State. A Member State can cap relevant tax relief to the same amount applicable for national fees however it cannot completely exclude tax relief for fees paid in another Member State (Schwarz and Gootjes Schwarz; Zanotti). Even if in such situation, no part of the paid fees, whether paid to public or private institutions, will accrue to the coffers of the tax-relieving State.  

Home-Coming Schemes

In a recent case concerning students-family members of frontier workers, Giersch, the Court has given a hint that may suggest a change of direction even in cases regarding students unrelated to migrant workers.  The Court has indicated that promotion of high rates of education among the resident population and promotion of the economy are legitimate State interests; and that a requirement for students in receipt of portable study finance to go back to reside and work in the paying Member State upon graduation is an appropriate means to this end. Recognition of similar home-coming requirements as legitimate restrictions to free movement of students would alter the current balance between right to exit and right to entry. By coupling the right to exit with a duty to return, similar requirements would thwart the natural evolution of a student’s right to leave a Member State into the right to enter and become integrated in another one. This may result into an impediment to free movement of workers. While any conclusion would be premature, it seems likely that the Court would take a highly contextual approach in assessing proportionality of similar requirements (the hint came in a case regarding Luxembourg, a Member State with an unusually low rate of highly educated residents, and a unusually high non-resident working population).

IMPLICATIONS

The asymmetry that emerges in student mobility case law could be articulated, with the necessary adaptations, also in other fields.  This asymmetry has two implications that warrant further research. A first implication is in terms of the financial burden of free movement. Who bears the brunt of free movement in this sense, between home and host States, depends in the case of students. For instance, Member States that are large recipients and moderate senders of EU migrant students may find free movement lucrative: sending Member States will pay for study finance, and the host Member State will gain in fees. An example to explore comes to mind: the United Kingdom, which in 2012 sent about 17,000 students to other EU/EEA/EU candidate countries, and received about 200,000 from other EU/EEA/EU candidate countries (Eurostat data). This in turn suggests further reflection on the nature and reach of transnational solidarity in the EU: on what kind of affiliation model does it really depend (D. Thym) and to what extent should it be tied to the nature of the involved social benefit (F. De Witte) rather than to the position of the involved individual. A second implication is in terms of the meaning of European Union citizenship and its relation to nationality. European Union citizenship is often considered a threat and a weakening factor for the rights and the image of national citizenship (according to Gareth Davies, ‘residence is the new nationality’ in light of European Union citizenship). In this sense it is one of the more ‘federalist’ achievements of the integration project. Actually at least as regards free movement of students, European Union citizenship rather reinforces national citizenship. It makes rights tied to national citizenship exportable and thus extends the reach of national citizenship across its national borders. The flip side of this implication is that renouncing European Union citizenship or losing it would have the effect of shrinking national citizenship back within its original boundaries. 

Further Reading

Francesca Strumia, ‘Individual Rights, Interstate Equality, State Autonomy: European Horizontal Citizenship and its (Lonely) Playground in Trans-Atlantic Perspective’

 (forthcoming in Dimitry Kochenov (ed) EU Citizenship and Federalism: the Role of Rights,

CUP 2015)

Floris De Witte, ‘Who Funds the Mobile Student? Shedding Some Light on the Normative Assumptions Underlying EU Free Movement Law’ (2013) 50 C.M.L.Rev. 203

Daniel Thym, ‘The Elusive Limits of Solidarity: Residence Rights of and Social Rights for Economically Inactive Union Citizens’ (2015) 52 C.M.L.Rev. 17

Gareth Davies, ‘“Any Place I Hang my Hat” or Residence is the New Nationality’ (2005) 11 E.L.J. 43

Barnard & Peers: chapter 13

Photo: Francesca Strumia

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More research is needed: the EU’s attempt to attract more non-EU researchers and students

 

Steve Peers

The economies of the EU’s Member States, like other advanced developing countries, increasingly need highly-skilled workforces. But since the EU’s current laws have only had a modest impact on attracting more students and researchers to the EU, the Commission proposed an overhaul of the legislation concerned in 2013. The European Parliament (EP) and the Council have each now agreed  their position on the proposed new law (see here and here), and will soon start negotiations on a final text. This is a good time to examine what the new law should include, if the EU genuinely wants to increase the numbers of researchers and students coming from third States.

Background

The existing legislation on this issue is the researchers’ Directive, adopted in 2005, and the students’ Directive, adopted in 2004. The latter Directive also applies to the admission of school pupils on exchange programmes, unpaid trainees and volunteers, although Member States have an option to apply it to the latter three groups of migrants. The Commission issued reports (see here and here) on the two Directives in 2011, concluding that they had not done much to accomplish their objective (there were only 7000 researchers admitted in 2010) and probably needed to be reformed – hence the 2013 proposal. The CJEU has ruled twice on the interpretation of the students’ Directive, first of all ruling in Sommer that Member States could not apply a labour-market preference test for students, and secondly ruling in the Ben Alaya case (discussed here) that Member States must admit students who comply with the rules on admission in the students’ Directive. The same logically applies to the current researchers’ Directive. The UK and Denmark opted out of both Directives, while Ireland opted in to the researchers' Directive.

The proposed new law

The Commission proposal would merge the students’ and researchers’ Directives, making major changes to them both. In order to attract more researchers and students to EU territory, there would be stronger rules on their equal treatment and their movement (‘mobility’) between Member States for the purpose of their studies and research; those rules would also be extended to paid trainees. They would be able to stay after their research or study for a period of 12 months to look for work or self-employment, although after 3 months Member States could check on the genuineness of this search, and after 6 months they could ask the migrant to prove that they have real prospects. Students would be able to work for 20 hours a week (the current rules provide for 10 hours), and the option to ban students from working during their first year of studies would be dropped.

Also, the proposal would replace the weak rules on family reunion in the current researchers’ Directive with a fully-fledged right to family reunion, which would moreover waive some of the restrictions in the EU’s Directive on family reunion for third-country citizens. In particular, researchers could obtain family reunion without a minimum waiting period, and would not have to show that they have a reasonable prospect of permanent residence. Integration requirements for family members could only be applied after entry, and there would be a shorter deadline to process applications. Family members would have a longer period of authorised stay, and no wait before they could access the labour market.

The 2013 proposal would also introduce a 60-day deadline to decide on applications for admission, shortened to 30 days for those benefiting from EU mobility programmes. (The current laws have no deadlines to decide on applications at all).  

Finally, the proposal would require Member States to apply the rules relating to school pupils, unpaid trainees and volunteers, and would furthermore add rules on two new groups of migrants: au pairs and paid trainees. It would also limit Member States’ current power to apply more favourable rules for students and researchers, confining that power to only a few provisions relating to the rights of migrants, while fully harmonising the rules on admission.

The European Parliament and Council positions

On some key points, the EP and the Council are going in quite different directions. The EP wants to oblige Member States to consider in-country applications for researchers, while the Council (like the Commission) wants to retain the existing rules, which give Member States an option to allow this. In the EP’s view, the equal treatment rules should be strengthened, but the Council wants to weaken them. The EP wants to extend former students’ and researchers’ stay to look for work from 12 to 18 months, and to make Member States wait longer to check on the genuineness of the job search or likelihood of employment. On the other hand, the Council wants several restrictions: to reduce the stay to 6 months; to allow Member States to limit students’ possibility to stay to those who have at least a Master’s degree; to check on the likelihood of employment after 3 months; and to give Member States an option to limit the job search to the areas of the migrant’s expertise. The EP agrees with the extension of students’ employment rights, while the Council wants to revert to the current 10-hour a week limit, and introduce a possible labour-market preference test (overturning Sommer).

As regards family reunion, the EP wants to extend the Commission’s proposal to family members of students as well, while the Council wants to limit the rules to researchers, without requiring Member States to give researchers’ family members immediate access to employment. Similarly, the EP believes that the new mobility rules should be extended to cover unpaid trainees and volunteers as well, while the Council wants to limit them to researchers and students (as at present), and to add very complicated details to the proposal on this issue. The EP supports an even shorter period to decide on applications (30 days), while the Council wants to raise the time limit to 90 days.

Finally, the EP agrees with the Commission proposal to extend the Directive to further categories of migrants and to make all of the rules binding, while the Council rejects both suggestions.

On a few points, the EP and Council are going in the same direction. Both institutions want Member States to have a greater possibility to apply more favourable rules for the persons concerned. The Council wants to go further still, and provide expressly that Member States can have rules on admission of other categories of students or researchers. Also, both the EP and the Council agree  that the current rules on delegating decision-making to research institutions or universities should remain, and that many of the rules on whether to refuse entry or withdraw or refuse to renew the right to stay should be optional, not mandatory (as the Commission proposes).

Comments

The EP’s and Council’s positions should be examined in light of the Commission’s impact assessment reportfor the proposed Directive, which makes detailed arguments for the amendments which the Commission proposed. This report provides evidence that a job-search period after the end of research or studies is a factor in attracting students or researchers, although presumably the Council’s less generous version of the rules on this issue would be less attractive in practice than the EP’s version. There is also evidence that migrants are attracted by further employment rights for students and for researchers’ family members: here the EP and Commission are seeking to amend the rules to this effect, but the Council is not.

Would-be migrants are also deterred by the great variety of national rules and the rules on mobility between Member States.  On this point, the Commission and EP position would certainly address this concern, by significantly reducing Member States’ options to have divergent national laws and providing for a relatively simple extension of a stronger version of the current mobility rules. The Council, for its part, would leave more national divergence in place, and amend the mobility rules in a fiendishly complicated way. Normally, I’m a big fan of the fiddly details of EU immigration law, but this is far too much of a good thing.

What should the priorities be for the forthcoming negotiations? The evidence clearly shows that the EU’s ailing economy would benefit most from more students and researchers, and less so as regards the other categories of migrants. And given the huge resistance of Member States to extending binding rules to the other categories of migrants, this would be difficult to agree, if it’s possible at all. So the EP should trade off one set of amendments against the other.

In particular, it should drop its insistence that binding rules should govern all aspects of the admission and stay of school pupils, trainees, au pairs and volunteers. Instead, it could seek a reasonable compromise, aiming to harmonise only certain aspects where there is a stronger case for common rules. The impact assessment report makes such a stronger case on two issues: where EU programmes aim to facilitate admission, and as regards the exploitation of au pairs and trainees (which also amounts to unfair competition as regards the domestic workforce).

So the future Directive could have binding rules as regards migrants who enter on the basis of an EU programme, but leave Member States discretion as regards these groups of migrants otherwise. And it could apply binding rules as regards equal treatment and transparency to those at risk of exploitation, leaving Member States the option to apply the other rules in the Directive to such groups. The objective of harmonisation could be preserved for the longer term, by means of a standstill clause, obliging Member States which currently apply EU law to these groups to keep doing so, while giving other Member States a renewable derogation. But if it is not possible to agree any binding rules on any aspect of the immigration of these groups of migrants, it would be better to drop them from the text of the Directive altogether, since the EU should avoid pointless legislation.

In return for not insisting on binding rules governing all aspects of the migration of other categories, the EP should demand improvements in the Council’s position on students and researchers, focussing on the changes that are most likely to attract them to the EU: better job-search rules, more employment prospects for students and researchers’ family members, less complex rules on mobility, and speedier decision-making. Requiring all Member States to permit in-country applications for researchers would surely help too. And since the EU also needs to attract researchers who fall outside the scope of the planned rules (because they don’t have a formal agreement with a research institution), the institutions could agree a political commitment to address this issue as part of the forthcoming revision of the EU’s Blue Card Directive, which concerns the admission of highly-skilled workers (on the reform of that Directive, see here). That review could also address what happens at the end of the job-search process for former students and researchers.

Speaking of the Blue Card Directive, it may also be useful to consider whether researchers and students might be more attracted to the EU if there were a similarly emblematic form of residence permit for them: an ‘EU Student Card’ and an ‘EU Researcher Card’, for instance. (I wouldn’t suggest using other colours for this purpose, since the existence of an ‘EU Red Card’ and an ‘EU Yellow Card’ would confuse football fans no end). While this might focus greater attention on the EU as a possible destination for researchers, marketing should not, of course, come at the expense of the substance of the rules concerned.  The EU has an opportunity to develop its immigration regime in the near future to ensure that the people it wants to attract here actually decide to come. It would be foolish to miss this opportunity again.   

 

Barnard & Peers: chapter 26
Photo credit: Research-in-Germany.org

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Back to school: the CJEU confirms that third-country national students have a right of entry

Steve Peers

Around the EU, with emotions ranging from excitement to dread, university and college students are now (or shortly) starting or returning to their courses. Most of them will struggle with studies, finance, hygiene, romance and alcohol – though perhaps not in that particular order. In addition, third-country nationals resident outside the EU have the further burden of satisfying immigration conditions.

Those conditions are harmonised by the EU’s students’ Directive, as adopted back in 2004.  But how much did this Directive actually harmonise these rules?  Do Member States still have the right to add further conditions for entry? In short, do third-country national students have a right of admission to the territory of the EU, if they meet the relevant criteria for admission in the Directive? The CJEU has ruled today that they do, in its judgment in Ben Alaya.

Background

The students’ Directive (which the UK, Ireland and Denmark opted out of) also applies to the admission of school pupils on exchange programmes, volunteers and unpaid trainees. However, Member States have an option to apply the Directive’s rules as regards the latter three categories of persons. According to the Commission’s report on the application of the Directive, most Member States have not taken up this option.

In 2013, the Commission proposed a new version of the Directive, which would incorporate the parallel Directive on admission of researchers, add further categories of persons (paid trainees and au pairs), make all the provisions of the Directive mandatory, and change some of the rules on admission. The European Parliament adopted its opinion on this proposal in spring, but negotiations seem to be moving slowly in the Council.

The CJEU has ruled once before on the interpretation of this Directive. In the judgment in Sommer, it gave a liberal interpretation of the rules governing students’ access to employment, on the grounds that (according to the Directive’s preamble) it aimed to ‘promote Europe…as a world centre of excellent for studies and vocational training’.

According to the Directive, the mandatory conditions for admission of students are: possession of a valid travel document; parental authorisation, if they are a minor (this condition obviously won’t apply to most students); holding sickness insurance; not being a threat to public policy, public security or public health; paying the application fee; being accepted by a higher education establishment; having sufficient resources; knowing the language of the course of study; and paying fees to the university or college concerned. In fact, Member States can waive the requirements of paying application or admission fees, and of knowing the language.

Judgment

Mr. Ben Alaya, a Tunisian man resident in Tunisia, had several times applied to German universities to study math (in conjunction with a preparatory language course) and been accepted. However, the German authorities repeatedly turned him down. He challenged before the German courts the most recent refusal, which was based on the alleged inadequacy of his grades, his weak knowledge of German, and the lack of connection between his course of study and his chosen career. The relevant rule in German immigration law (as quoted in the judgment) sets out instead only a more nuanced rule on language requirements (waiving the requirement if the student will take a prior language course), with no reference to academic qualifications or the link with a planned career.

The national court referred to the CJEU the single question of whether there was a right to admission of students if the criteria in the Directive were satisfied.

According to the Court, first of all the mandatory nature of the admissions rules for students, as compared to the discretionary application of the rules on other categories of persons, justified the conclusion that the admissions rules were an exhaustive list. Secondly, this interpretation was consistent with the purpose of the Directive (promoting mobility to the EU, so that it would be a global centre of excellence for education) as set out in the preamble and referred to previously in Sommer. Thirdly, the Directive expressly allowed Member States to set more favourable standards, so it made no sense to interpret it to mean that they could also set less favourable standards.

The Court did note that Member States had some general discretion when applying the exhaustive EU rules: they could ask for the evidence needed to ‘assess the coherence’ of the application, ‘in order to fight against abuse and misuse’ of the admission procedure. Finally, the Court went on to reach a conclusion on the facts of the case, noting that Mr. Ben Alaya appeared to satisfy the conditions for admission, and that he therefore ‘ought’ to have been given a residence permit.

Comments

First of all, it is striking that the CJEU effectively allocated responsibility as between the educational institutions and the immigration authorities. While of course students should satisfy the relevant educational criteria for admission, the Directive implicitly leaves it to the educational institution to apply the relevant criteria. It is up to each Member State (or perhaps its constituent states, in federal countries like Germany) to decide if it wants to set minimum educational criteria for university entry by law, or allow the higher education sector to set those criteria (or to set higher criteria than the national minimum).

It certainly looks odd in this case that although the educational institution thought the applicant’s grades were sufficient, the immigration officials thought they knew better than the university how to apply its admissions criteria. Then again, the Court of Justice judges also thought they were competent to examine this issue.

It is also odd that the immigration officials rejected the applicant on language grounds when he was willing to attend the pre-course language studies referred to by national law. And the idea that immigration officials can judge whether there is enough of a link between study and future career is peculiar (and not provided for in national law or the Directive). More fundamentally, it’s an absurd criterion for admission to higher education courses: students often change their mind as to what career they wish to have, or obtain jobs in different areas from their field of study due to developments on the job market. 

The judgment also raises some general points. As regards education policy, it should be stressed that the Directive does not affect the ability of Member States to determine what fees to charge to third-country nationals coming from third countries, or to regulate whether they have access to study finance. This is obviously different from the internal market rules applying to EU citizen students who move between Member States, who have the right to equal treatment as regards tuition fees and admission criteria or quotas, and (if they are already residing in the Member State concerned, in most cases) equal treatment as regards study finance.

For nationals of Turkey, the judgment has a particular importance. They have the right to admission, then the right of access to employment (Sommer), which gives rise in turn to a right to stay on the territory as a Turkish worker (Payir).

As regards immigration policy more generally, last year the CJEU ruled that the EU rules on grant of a short-term visa are exhaustive (Koushkaki). Just last week, it ruled that the rules on admission at the external borders in the Schengen Borders Code are exhaustive (Air Baltic). Now it has confirmed that at least some of the rules on longer-term migration are exhaustive too. While this judgment as such only applies to the students’ Directive, it must surely give rise to a presumption that the other EU immigration law Directives regulating the grounds of admission create a right of entry to: the Blue Card Directive, the researchers’ Directive, the seasonal workers’ Directive and the intra-corporate transferees Directive. As for the other Directives on legal migration, the single permit Directive does not set out grounds for admission, the CJEU confirmed years ago that the family reunion Directive confers a right of entry, and the long-term residents Directive presumably confers a right to obtain a long-term residents’ permit and to move to another Member State if the conditions in the Directive are satisfied.

In light of this broader impact, like the earlier judgments of Koushkaki and Air Baltic, this is a welcome judgment by the Court, which strengthens the rule of law in immigration proceedings and makes clear that the EU rules on immigration law aim toward harmonisation of national rules.

Barnard & Peers: chapter 26

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