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 family members? The Court of Justice of the European Union (CJEU) finally has a chance to clarify its judgments in Surinder Singh and Carpenter, concerning respectively family reunion for EU citizens who move to another Member State and then return to their home State (‘returnees’), and family reunion for EU citizens who provide services in another Member State.
Facts of the cases
On the 12th of December 2013 Advocate-General (A.G.) Sharpston delivered her opinion on the Joined Cases of O and S (Cases C-456/12 and C-457/12). The first case is about two separate families: O and B. In 2007 O (a third-country national) and sponsor O (ie the Dutch citizen related to O) took residence in Spain. A residence document valid until September 2014 attests that. 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 week end 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 second case is also about two separate families: S and G. S is a Ukrainian national. Her 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.
In each of these cases each third country national has family ties with a Dutch national who is his/her sponsor. The Dutch Council of State is asking whether the movement exercised by the Dutch sponsors suffices to establish that EU law applies and to generate a derived right of residence for the third country national family members.
In her preliminary remarks A.G. Sharpston clarifies the two points on which the opinion focuses. First of all, the aim of this opinion is to find out whether denying lawful residence to these third country nationals would amount to a restriction of the right of their sponsors to move and reside freely within the territory of the Member States. Secondly, in this opinion she focuses on trying to outline the parameters within which derived residence rights for third country national family members arise in the home Member State of an EU citizen who has exercised free movement rights without necessarily exercising full residence rights in another Member State.
On the first point –why derived rights of residence exist- the A.G. starts from a historical development. She points out that the concept that third-country national family members of EU citizens should enjoy derived rights of residency was developed in the context of the economic freedom of movement. However, with the introduction of the concept of EU citizenship the exercise of the right of free movement became independent from the economic freedom of movement and from the pursuit of economic activity.
Unlike previously, according to A.G. Sharpston, under Directive 2004/38 EC (the ‘citizens’ Directive’), the existence of a derived right of residence no longer depends on showing the possible effect on the EU citizen of denying family members residence: rights are granted automatically to a select group of family members. A.G. Sharpston then states that since derived rights of residence only exist where these are necessary to ensure that the EU citizens can exercise their free movement and residence rights effectively, the questions that the Court should ask itself would be a) whether the EU citizen has exercised or is exercising such rights; b) whether denying their family members residence would restrict such rights.
A.G. Sharpston starts engaging with these questions by stating that this case is different from Zambrano, McCarthy and Dereci because in this case all the applicants exercised rights of free movement and/or residence to another Member State. With regard to these cases, and in particular Dereci, A.G. Sharpston points out that the Court seems to suggest that there are three separate bases under EU law according to which derivative family rights can be granted: a) the right to respect for private and family life (Art. 7 of the Charter); b) the right of free movement and residence of EU citizens (Art. 21 TFEU); c) the denial of the genuine enjoyment of the substance of the rights conferred on an EU citizen (Art. 20 TFEU).
However, according to her, there is a different way of approaching the matter. As a matter of fact, the Charter can apply only when EU law applies. Therefore, the right to respect for private and family rights is not an independent way through which residence family rights can be granted to third country national family members but it applies only when the given situation concerning EU citizens falls within the scope of EU law. So it is necessary for the Court to give clear guidance to national courts as to the circumstances in which an EU right, read according to the Charter, is triggered. On the basis of these guidelines given by the Court it is up to the national court to find out whether the EU right, applied to the facts of the case, precludes the application of the national measure.
After this preamble A.G. Sharpston argues that the citizens’ Directive cannot be applied in these cases. In particular, she points out that, in general, EU citizens can move (within the EU) in three directions: a) between two Member States of which they are not nationals; b) from their home Member State to another Member State; c) from another Member State back to their home Member State (ie returnees). The citizens’ Directive (Art. 3(1)) just protects situations a and b while the circumstances at stake seem to fall under the third situation.
Since the citizens’ Directive cannot apply, she suggests then that the position of the applicants should be considered under the EU treaties and, in particular, under Art. 21 TFEU. In her view, pursuant to Art. 21, Member States should not restrict the rights of EU citizens to move and reside freely within the territory of the EU and the same principle applies to EU citizens who marry third country nationals and seek to exercise free movement. In fact, if a couple is precluded from living together in the Member State of which the EU citizen is a national they either will be forced not to live together or will be obliged to move elsewhere outside the European Union or in another Member State.
In the first hypothesis the EU citizen will be stripped of his/her EU citizenship rights as that status has just limited importance outside the EU. In the second case the measure results in more movement. However, while facilitation of free movement is an objective of the EU, imposing free movement is not. According to this understanding, the home Member State cannot treat its own nationals returning to reside on its territory less favourably than the treatment that they enjoyed in the host Member State. Because of the first movement, the rights under EU law are “passported” and remain with the EU citizen on his or her return to his or her home Member State (referring to the prior CJEU case-law, namely Eind and Surinder Singh).
A.G. Sharpston then moves on to face the second issue in the case: trying to define the concept of residence. After pointing out that no secondary and primary measures provide a clear definition of what residence is, she states that she does not think that residence requires necessarily the constant physical presence in the territory of a single Member State, or that when a EU citizen has taken up residence in another Member State that has to be the only place of residence. In fact, provided that the test for establishing residence is complied with in one Member State, it should not matter that the EU citizen might keep some form of residence elsewhere and this rule seems to be implied also in the citizens’ Directive.
She does not agree with the idea that the EU citizen must have resided three months in the host Member State before he/she can claim the derived rights of family reunification for his/her third country national family member as a returnee. Although the length of an EU citizen’s stay in another Member State is a relevant criterion to define residence it cannot be the only absolute threshold that defines whether he/she has or has not exercised rights of residence and can therefore be joined by his her family members.
What about the position of EU citizens who move to a Member State without necessarily taking up residence there? Here, the opinion builds on the case of Carpenter where the A.G. points out that neither Singh nor Eind cover this scenario. However, in Carpenter derived rights of residence in the Member State of nationality and residence can be available to third country EU national family members who have exercised single market freedoms to another Member State. In particular, in that case, providing services in other Member States was sufficient for a British publisher to invoke the right under EU law to be joined by his wife.
A.G Sharpston points out that the reasoning in Carpenter, regarding the provision of services, is relevant both a) for the active exercise of rights of movement without residence as a worker and b) to the passive exercise of the right to receive services. On the first point she finds that the exercise of the right of free movement in connection with an activity by an EU citizen may trigger the necessity to be joined by his/her family members in his/her home Member State. There is no difference between an EU citizen who lives in his or her home Member State and works for an employer based in another Member State, and an EU citizen who lives in his or her home Member State, works for an employer based in the same State but has to travel to other Member States for work. In both cases in fact the worker is obliged to cross the border to keep his/her job. The question then is whether or not a restriction on the presence of the third country national in the home Member State is going to prevent the worker crossing the border in order to perform his/her job. Whether the third country national can claim such a right depends on some variables: a) the level of family connection with the EU citizen; b) the EU citizen’s exercise of the right of free movement; c) the causal link between the residence of the third country national and the EU citizen’s exercise of rights of free movement.
With regards to the right to receive services, Sharpston points out that any EU citizen who moves to another Member State in order to enjoy a service there falls within the scope of application of EU law. However, although moving to another Member State in order to receive services is definitely an exercise of an economic freedom, it is usually not the type of activity which enables EU citizens to support or make them dependent on their family members. However, she does not rule out that there could be some exceptional circumstances, for example in case of illness, in which such dependency can be triggered.
Finally, A.G. Sharpston contemplates the hypothesis of a EU citizen moving to another Member State just in order to exercise the right of family reunification with his/her family member and finds that a national measure that imposes movement restricts the choice to decide whether to move or not to move and, therefore, is contrary to Art. 21(1) TFEU.
After having explained the conditions that govern the exercise of derived rights of residence, A.G. Sharpston concludes by pointing out what determines the derived rights of residence of O, B, S and G. In the case of O, she finds that sponsor O should not be treated less favourably when she returns to work and live in the Netherlands and, therefore, O would have under EU law a right to lawful residence in the Netherlands. In the case of B, the applicant does not seem to fall either under the citizens’ Directive or under the citizenship provisions of the Treaty. However, B could still claim a derived right of residence in the Netherlands provided that the decision to join sponsor B was taken in the exercise of their right to a family life.
In the case of S, sponsor S exercises his right of free movement in connection with an economic activity and there seems a family connection (S is a dependent family member in the ascending line within the meaning of the citizens’ Directive, and sponsor S materially supports S). With regard to the presence of a causal link 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.In the case of G, sponsor G is a frontier worker and married with G in Peru. As spouses, they must be considered to be dependant economically and emotionally. Denying G residence in the Netherlands might force him to move somewhere else in the EU. That would consist in a restriction of his choice of being a frontier worker, an economic freedom guaranteed by Art. 45 TFEU.
The opinion of A.G. Sharpston is extremely interesting and relevant as it seeks to clarify the circumstances in which the third country national family member of an EU citizen who is residing in his home Member State but who is exercising his rights of free movement can claim derived rights of residence in that home Member State under EU law. Normally, family reunion for EU citizens living in their own Member State is wholly subject to national law, leaving it open for the Member State in question (notably the UK and Netherlands) to lay down much stricter conditions for family reunion. So the ability to rely on EU law can be crucial for the families concerned.
The Advocate-General makes a good effort to define what amounts to the right of residence. Her interesting finding is that EU citizens are not necessarily required to have one place of residence. This means that EU citizens can still reside in their Member State of nationality but have their centre of interest in another Member State. As long as they cross the border they are entitled to claim derived rights for their third country national family members in their Member State of origin provided that they fulfil the requirement of being family members and there is a causal link between the residence of the third country national and the EU citizen’s exercise of rights of free movement. Building upon Carpenter, EU citizens are also entitled to claim derived rights for their third country national family members in their home Member State in case the exercise of the right of free movement was sufficiently connected to the position of the family members. Nevertheless, the Advocate-General finds that the simple move to another Member State in order to receive services, even though that situation falls within the scope of EU law, cannot usually trigger derived family reunification rights under EU law.
A.G. Sharpston has found a legally grounded solution to circumstances that, apparently, seem to fall within the area of national law. Her approach, if adopted by the CJEU, will be able to expand the protection of the right to family life of EU citizens who still officially reside in their own Member State. Hopefully the Court will not ignore her clear analysis or, at least, will take the opportunity to give a structured guidance to solve these and similar cases.
[Update: the CJEU ruled in this case in March 2014. See discussion here.]
Barnard & Peers: chapter 13