Bachelor Thesis EU citizenship and the right to family reunification Dario Vaccaro Supervisor

Transcription

1 Bachelor Thesis EU citizenship and the right to family reunification Dario Vaccaro Supervisor Fall 2014 Prof. Dr. Sybe de Vries Law Faculty International and European Law Coordinator Dr. Matthijs de Blois Second Reader Dr. Hanneke van Eijken 1

2 Table of Contents Chapter 1 Introduction Structure, delimitations and methodology... 5 Chapter 2 Legislative framework Treaty provisions The EU Citizenship Directive Categories of family members Rights of entry and residence Restrictions of rights and expulsions The Directive on Family Reunification Directive 2003/ Chapter 3 The ECHR and the Charter The European Convention on Human Rights The Charter of Fundamental Rights Linking EU citizenship with EU fundamental rights Family reunification under article 7 of the Charter Chapter 4 The case-law of the ECJ First cases concerning EU citizenship Exercise of free movement rights outside the scope of Directive 2004/ Surinder Singh Cases Carpenter Cases Chen cases Prior lawful residence requirement Article 20 TFEU and the Substance of EU citizenship rights Chapter 5 The possibilities for family reunification Moving to another Member State Article 21 TFEU Exercising economic free movement rights The Substance of EU citizenship rights Fundamental Rights and the ECHR Chapter 6 The problems

3 6.1 Reverse discrimination Legal uncertainty and paradoxical outcomes Chapter 7 Potential Solutions Aligning national legislation concerning family reunification Solutions by the EU Legislature Potential solutions which depend on the ECJ A solution based on articles 8 and 14 of the ECHR Conclusion Bibliography

4 Chapter 1: Introduction European citizenship is meant to bring the European Union closer to the nationals of the Member States and has been an important and vibrant part of the EU legal order in the past twenty years. 1 Although the first two treaties, the European Coal and Steal Treaty and the Treaty of Rome, reflected minuscule elements of citizenship, the European Court of Justice (ECJ) really started the development in Van Gend en Loos. 2 In this landmark case the ECJ ruled that Community Law is also intended to confer upon them [citizens of Member States] rights which become part of their legal heritage. 3 The nationals of the Member States were granted enforceable European rights, of mainly an economic and functional character, and were so activated to stimulate and promote the functioning of the Common Market. 4 This can be seen as an important first step towards EU citizenship which was officially introduced in 1993 by the Treaty of Maastricht and which has developed to encompass more than the economically characterized market citizenship. 5 The right to family reunification has long been recognized as essential to freedom of movement for workers and it is an important part of EU law. 6 In 1961, Council Regulation No. 15 on free movement of workers already provided for the right of the spouse and children aged under 21 to join the worker in the host Member State. 7 The rationale has been that the nationals of the Member States would be obstructed from integrating in the host Member State and discouraged from making use of their free movement rights if, after doing so, they could not be with their family. 8 The possibility to claim a right to family reunification on the basis of EU law was extended to noneconomically active nationals of the Member States after the formal establishment of European citizenship in the Treaty of Maastricht. 9 Since the European Court of Justice quickly declared that EU citizenship is not intended to extend the scope ratione materiae of the Treaty also to internal situations which have no link with Community law, 10 EU citizens can only make use of certain citizenship rights, such as family reunification rights, when their situation has a link with EU law. 11 Such a connection with EU law can be established, for the purpose of family reunification, through the exercise of free movement rights or, in exceptional circumstances, when the genuine enjoyment of the substance of EU citizenship rights is denied. Static EU citizens 12 who are unable to establish a link with EU law are considered to be in a situation that is purely internal to the Member State of their nationality. Accordingly, those EU citizen sponsors 13 face national family reunification conditions which are often much stricter than the conditions under EU law would be, especially in regard to income requirements. 14 Consequently, the gap in EU law concerning family reunification for static EU citizens in a purely internal situation enables Member States to practice reverse discrimination against their own nationals. The phenomenon of reverse discrimination occurs when a Member State provides less favorable treatment to 1 Currie (2009), pp , Von Bogdandy et al. (2012), p Olsen (2012), p Ibid p. 23, Case 26/62, Van Gend and Loos [1963] ECR 1. 4 Calliess (2013), p Ibid., p Van Elsuwege and Kochenov (2011), p. 444, Groenendijk (2006), p Groenendijk (2006), p. 215, Articles of Regulation No. 15 of 16 August 1961 on initial measures to bring about free movement of workers within the Community, OJ 57/ Groenendijk (2006), p. 215, Van Elsuwege and Kochenov (2011). 9 Van Elsuwege and Kochenov (2011), p C-64/96 and C-65/96, Uecker and Jacquet [1997] ECR I-03171, par Van Elsuwege and Kochenov (2011), p EU citizens who do not exercise any free movement rights. 13 The sponsor is the person who resides in a Member State and who wants be reunited with his family members in that Member State. 14 Walker et al. (2014), pp

5 its own nationals than to non-nationals. 15 Since EU citizens have an autonomous right to move to another Member State, the disadvantaged position of static EU citizens in regard of family reunification is mostly related to reunification with third-country national family members. 16 The ECJ s consistent approach to reverse discrimination experienced by EU citizens is that any discrimination which nationals of a Member State may suffer under the law of that State falls within the scope of that law and must therefore be dealt with within the framework of the internal legal system of that State. 17 Some Member States, such as the Netherlands and the UK, however, have continuously failed to remediate this reverse discrimination. 18 In addition to the issue of reverse discrimination, the case-law concerning family reunification rights of EU citizens has been criticized for producing legal uncertainty and outcomes that were both paradoxical and unfair. 19 Many EU citizenship cases at the ECJ in the last few years have been concerned with family reunification rights for EU citizens. 20 The fact that it has been, and continuous to be, a prominent issue in the Citizenship case-law of the ECJ suggests that family reunification rights are one of the most relevant and tangible aspects of EU citizenship to the nationals of the Member States. 21 Yet, the incongruities surrounding this right have not been solved. It is therefore relevant and interesting to examine the current legal framework and jurisprudence at the level of the EU which allow for this strange situation. The possibilities for EU citizens to establish a right to family reunification on the basis of EU, along with the pertaining problems and potential solutions, will thus be subject of this thesis. The research question is: What are the possibilities and difficulties faced by EU citizens regarding the right to family reunification on the basis of EU law and what are potential solutions to the issue of reverse discrimination in that respect? 1.1 Structure, delimitations and methodology In order to answer this research question it is important to examine the relevant legislative framework in place at the level of the EU. This will be the subject of chapter 2 of this thesis. Furthermore, since family reunification could be considered one of the most important aspects of the right to family life as protected by the Charter and the ECHR, Chapter 3 will analyze the protection offered by those two human rights instruments. The case-law of the ECJ has played a crucial role in the development of family reunification rights for EU citizens and the analysis of this jurisprudential development, in Chapter 4, will therefore constitute the core of this thesis. Chapter 5 will then provide an answer to the first part of the research question by summarizing and examining the main possibilities for EU citizens to establish a right to family reunification on the basis of EU law. Chapters 6 and 7 will discuss, respectively, the main problems pertaining to the current situation and some interesting potential solutions in this regard. The term family reunification will be used in a broad way in this thesis so as to also include situations in which the familial relationship came about only after a person became established in a Member State. 22 Unless provided otherwise, the term family member(s) will be used in a broad way as well, though with 15 Groenendijk (2013), p. 170, Van Elsuwege (2014), p This thesis will therefore be mainly concerned with the position of families made up of EU citizens and third-country nationals. 17 C-64/96 and C-65/96, Uecker and Jacquet [1997] ECR I-03171, par Groenendijk (2013), p See for instance Kochenov (2013), Van Elsuwege (2014), Iglesias Sánchez (2014). 20 Van Elsuwege (2014), p Iglesias Sánchez (2014), p The main reason for this is that the ECJ has extended family reunification rights to EU citizens who established the familial relationship only after exercising free movement rights. See C-127/08, Metock [2008] ECR I-06241, par. 90. Furthermore, in the relevant academic literature often no distinction is made either. See for instance Staver (2013), Van Elsuwege (2014). 5

6 primarily the categories of family members as defined by article 2(2) of the Citizenship Directive in mind. 23 The problems relating specifically to the different definitions of the term family members in the Member States will be left out of this thesis due to time constraints. Although an analysis in this regard would be interesting and relevant, it is not necessary to analyze the main problems, possibilities and solutions discussed in this thesis. The traditional legal method of research has been used to answer the research question. Accordingly, the primary and secondary law of the EU, the relevant case-law of the ECJ and the ECtHR and the opinions of the Advocates General at the ECJ, as well as the relevant academic literature in books and articles on the subject, have been analyzed in this thesis. Chapter 2: Legislative framework Before analyzing the right to family reunification of EU citizens as it has been developed in the case-law of the ECJ and to what extent it enjoys protection from the ECHR and the Charter, it is necessary to examine the main elements of the legislative framework surrounding this right. The legislative framework consists mainly of articles from the TFEU, the Charter, the ECHR, Directive 2004/38, Directive 2003/86 and some of Directive 2003/109. The ECJ does not deal with these instruments as entirely separate but has shown to draw comparisons and interpret their provisions analogously Treaty provisions Although Part Two of the TFEU provides the most important rights pertaining to the status of EU citizen, a right to family reunification, which is arguably one of the most important rights, is not mentioned in these Citizenship articles. 25 However, in addition to those Citizenship rights enumerated in articles TFEU, important rights of EU citizens can also be found in other parts of the Treaties, as well as in directives and regulations. 26 Furthermore, the interpretations of EU citizenship rights in the case-law of the ECJ have had a major impact on the development of the right to family reunification of EU citizens. Since the analysis of that will constitute the core of this thesis, the relevance of the Treaty provisions on EU citizenship will be incorporated mainly in Chapter 4 of this thesis. Nonetheless, it is useful to already make some general remarks on these Treaty provisions as part of the legislative framework in order to lay a small foundation for the analysis in the rest of this thesis. Article 20(1) TFEU establishes EU citizenship and affirms that it will be additional to and not replace national citizenship. Paragraph two of this article lists specific rights granted to EU citizens which are further elaborated in articles TFEU. The most important of these rights for the purposes of this thesis is article 21 TFEU which grants every citizen of the Union the right to move and reside freely within the territory of the Member States. 23 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, OJ L 158, , pp The definition includes the spouse, registered partner, direct descendants under the age of 21 (including those of the spouse or partner), parents and grandparents (including those of the spouse or partner). See section below. 24 Groenendijk (2014), p See for example case C-578/08, Chakroun [2010] ECR I-1839, paras 46 and Kaczorowska (2013), p Ibid. 6

7 The teleological interpretation of the ECJ of articles 20(1) and 21(1) TFEU has substantially increased their significance and they have been interpreted to entail a right to family reunification for EU citizens under certain conditions. 27 Accordingly, a right of entry and residence can be derived by a member of an EU citizens family directly on the basis of the Citizenship rights laid down in articles 20 and 21 TFEU. 28 Kaczorowska argues that these rights pertaining to the status of European citizenship are most valuable to EU citizens who are not economically active. 29 This would be because the more specific provisions for the economically active Union citizens, such as workers (art. 45 TFEU), or persons making use of the freedom of establishment right (art. 49 TFEU), or people who provide services in other Member States (art. 56 TFEU), are generally more generous in granting family rights. 30 In the case-law of the ECJ it has been established that all these Treaty articles have direct effect. 31 It is also well established that if one of these more specific articles is applicable, it is not necessary to examine articles 20 and 21 of the TFEU. 32 The non-economically active Union citizens and their family members could therefore benefit the most from the Citizenship rights and rights that are derived from them, such as the right to family reunification. The Citizenship Directive 33, which is analyzed extensively below, sets out the conditions for, and gives effect to, the right to move and reside freely anywhere in the EU which is conferred upon EU citizens and their families pursuant to article 20(2)(a) and 21 of the TFEU, and protected by article 45 of the Charter. 34 This Directive also gives effect to the specific free movement rights concerning the exercise of economic activities as laid down in articles 45, 49 and 56 of the TFEU The EU Citizenship Directive Directive 2004/38 (or the Citizenship Directive ) on the right of citizens of the Union and their family members to move and reside freely within the territory of the Union is an important piece of secondary legislation which consolidated two regulations and nine directives on this issue. 36 It also codified the relevant case-law and simplified the rules in this area. 37 The Directive applies to all EU citizens who move to or reside in a Member State other than that of which they are a national, regardless of economic activities, and to their family members as defined in the Directive. 38 A right to family reunification is granted to those migrating Union citizens 39 pursuant to article 3 (1) and in accordance with the conditions set out in the Directive. Paragraph 5 of the preamble to the Directive affirms that third-country national family members of the migrating Union citizen can also benefit from its provisions: 27 These conditions will be analyzed extensively throughout this thesis. 28 Kaczorowska (2013), p See for instance C-413/99, Baumbast [2002] ECR I and C-200/02, Chen [2004] ECR I Kaczorowska (2013), p Kaczorowska (2013), p. 609, C-499/06, Nerkowska [2008] ECR I Guild et al. (2014), p. 1. See Chapter 4 of this thesis on the case-law development. 32 Kaczorowska (2013), p See also Case C-193/94 Skanavi and Chryssanthakopoulos [1996] ECR I-929 and C-470/04 N v Inspecteur van de Belastingdienst [2006] ECR I Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, OJ L 158, , pp Guild et al. (2014), p Ibid. 36 Kaczorowska (2013), p Ibid. 38 Article 3(1) of Directive 2004/ Migrating (or moving) Union citizens will, for the purposes of this thesis, denote EU citizens who have exercised free movement rights. 7

8 The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality. However, this right is not unqualified and family reunification on the basis of Directive 2004/38 is limited in scope and according to the conditions which have to be satisfied. These limitations set out in specific articles in this Directive will be discussed below Categories of family members Firstly, Directive 2004/38 does not enable reunification with all categories of family members. Article 2(2) defines the term family member for the purpose of the Directive. Accordingly, only an EU citizen s spouse, registered partner, direct descendants under the age of 21 (including those of the spouse or partner), parents and grandparents (including those of the spouse or partner) are considered family members. Nevertheless, article 37 of the Directive affirms that Member States are allowed to adhere to a broader and more favorable definition of the family unit. Furthermore, article 3(2) provides protection for certain groups of family members not covered by the definition of family members in article 2(2). These extended family members include other dependent family members not falling under the definition of 2(2), and those who require personal care by an EU citizen on serious health grounds, and a partner with whom the EU citizen has a durable relationship that is duly attested. For these groups, the Member State are required to facilitate family reunification (by granting entry and residence ) with the EU citizen. 40 Any denial of entry or residence with regard to these groups has to be justified by the host Member State after an extensive examination of personal circumstances. This provision should not be interpreted restrictively and Member States are obligated to offer citizens a motivated answer in case of refusal. 41 In this regard, the factors listed in paragraph 6 of the Directive s Preamble are relevant. 42 The factors named there are non-limitative and include the relationship of these people with the EU citizen, or any other circumstances, such as physical or financial dependence on the Union citizen. 43 It could be argued that the extended family members referred to in article 3(2) cannot benefit from most of the articles in the Directive because article 2(2) provides a clear definition as to which familial relationships fall under the term family member. However, such a conclusion cannot be drawn so easily because articles 8(5) and 10 speak of family members as including cases of 3(2)(a) and (b). 44 Furthermore, the ECJ has referred to the categories of persons listed in 3(2) as family members. 45 Consequently, the term family member cannot be interpreted as only including the basic family members described in article 2(2) Article 3(2) of Directive 2004/ Dal Pozzo (2013), p. 12, Krūma (2013), p Guild et al. (2014), p Recital 6 of Directive 2004/ Guild et al. (2014), p C-83/11, Rahman [2013] ECR nyr. 46 Guild et al. (2014), pp Once these so-called extended family members have been granted entry and residence in a Member State, at least then it must reasonably be the case that the articles of the Directive also apply to them. This line of reasoning can be exemplified by considering the explicit reference in article 5(2) and 5(3) which provide that persons who obtained a residence card in accordance with article 10 do not have to obtain a visa or a receive a stamp in their passport for entry into another Member State. Since article 10 speaks of the extended family members listed in 3(2) a and b as well, this indicates that article 5 also applies to these persons. 8

9 A further analysis regarding the different categories of family members of Union citizens which are covered by the Directive is outside the scope of this thesis. 47 For the remainder of this subsection on Directive 2004/38, the term family member(s) will be used within the meaning of the definition of that Directive Rights of entry and residence The Citizenship Directive sets out the conditions for the rights of entry and residence for both EU citizens and their family members. However, the extension of rights to family members is secondary in nature because their rights are obtained indirectly through Union citizens exercising the right to free movement. 48 Despite being secondary in nature, the ECJ has consistently held that the rights of residence conferred on family members of Union citizens stimulate the exercise of free movement rights by Union citizens and protect the respect for the right to family life as guaranteed in the Charter and the ECHR. 49 However, if no cross-border movement is exercised by an EU citizen, Directive 2004/38 does not grant his family members any rights. The rights of entry and of residence for up to three months are codified in articles 5 and 6 respectively of Directive 2004/38. These articles restrict the conditions that may be imposed on the EU citizens and their family members when they enter a host Member State and when they reside there during a short-term period. 50 A remarkable line of case-law of the ECJ has concerned the question of whether third-country national family members can derive a right of first access into the territory of the EU in order to accompany or join a Union citizen. In the Metock case, which will be analyzed extensively below, the ECJ clarified that third-country family members need not have been lawfully resident in another Member State before being allowed to accompany or join the Union citizen. 51 Indeed, the provisions of Directive 2004/38 make no mention of such a requirement. It also makes no difference whether or not they were family members at the time of the movement of the Union citizen, and how and when third-country national family members entered the host Member State. 52 Another, more restrictive, interpretation of the third-country family member s right to accompany or join Union citizens would constitute an obstacle to the free movement of Union citizens. 53 Accordingly, third-country national family members can derive a right of first access and residence into the territory of the EU. Article 7 provides the right of residence for more than three months for Union citizens and their family members. It differentiates between three categories of persons. The first category includes workers and self-employed persons. They are not subject to the requirements of sufficient resources and 47 One last point with regard to the categories of persons covered by the Citizenship Directive that is relevant here is that even though neither article 2(2) or 3(2)(b) with regard to partners in a duly attested, durable relationship specifically include the words irrespective of nationality, the application of these articles to non-eu nationals has not been questioned. Moreover, paragraph 5 of the preamble expressly states that rights are granted to family members, irrespective of their nationality. See Guild et al (2014), p Guild et al. (2014), p Guild et al. (2014), p. 111; C-413/99, Baumbast [2002] ECR I-07091, par. 72, C-60/00, Carpenter [2002] ECR I paras According to Article 5 no entry visa or equivalent formality may be imposed on Union citizens, or on non-eu family members who accompany a Union citizen and who possess a valid residency card referred to in article 10. According to article 6 of the Directive, EU citizens and their family members have the right to reside in any Member State for a period of up to three months without any conditions or formalities other than the requirement to hold a valid passport (or identity card for Union citizens). There are no financial requirements concerning the enjoyment of residence for the first three months, provided that the Union citizens and their family members do not become an unreasonable burden on the social system of the host Member State. See Guild et al. (2014), p According to recital 21 Member States are allowed to limit social assistance during the initial three-month period of residence. See Guild et al. (2014), p C-127/08, Metock [2008] ECR I-06241, par Ibid., paras. 92 and Ibid., par. 56, Guild et al. (2014), p

10 comprehensive sickness insurance applicable to persons falling under the other categories listed in 7(1)(b) and (c). 54 The second category covers economically inactive persons provided that they have sufficient resources for themselves and their families and that they possess the required health insurance cover. 55 Although every Union citizen has the right to reside anywhere in the EU, that right is conditional on those two requirements. 56 The third category comprises students who are enrolled in a private or public establishment in the host Member State. 57 They must have the requisite sickness insurance and adequate means of support, but the resource requirements are less strict than for persons in the second category. 58 On the other hand, with regard to students, their right of residence only extends to the spouse, registered partner and dependent children. 59 Furthermore, only dependent direct relatives in the ascending line of the student, or of his/her spouse or registered partner, must be facilitated by Member States in accordance with article 3(2). These limitations on the right to family reunification for students come to an end when students become economically active. 60 The matter of sufficient resources is essential to the exercise of free movement rights of EU citizens. 61 Article 8(4) provides in this regard that Member States may not lay down a fixed amount because the personal situation of the person concerned has to be taken into account. In any case, this amount may not be higher than the threshold below which nationals of the host Member State become eligible for social assistance. 62 The ECJ has ruled that the origin of the resources, whether personal or belonging to other persons, is immaterial. 63 However, it remains unclear whether those resources need to readily available before the right of residence can be granted to the migrating Union citizen and/or his family members (which was the situation in the Chen case), or whether this condition can also be satisfied after this right is granted by taking up employment in the host Member State. 64 Guild and her co-authors submit that there is scope to interpret article 7(1)(b) as permitting Union citizens to establish sufficient resources on the basis of the third-country national s income, to be obtained after the right of residence is granted through the exercise of a derived right to pursue employment or to be selfemployed in accordance with article 23 of the Directive. 65 This would be in accordance with a teleological approach to interpreting the Directive and the relevant case-law. 66 As long as the family unit is selfsufficient in the end, such an interpretation could indeed contribute to the exercise of free movement rights without causing an unreasonable financial burden for the Member States. However, the ECJ has not yet confirmed that such an interpretation of the condition of sufficient resources is possible. In the Alokpa judgment, the ECJ seems to reject that interpretation. 67 Article 7(1)(d) has little independent value since it confers a right of residence on family members of EU citizens who are EU citizens themselves and could satisfy the requirements of residence set out in article 54 Guild et al. (2014), p Article 7(1)(b) of Directive 2004/ Guild et al. (2014), p Article 7(1)(c) of Directive 2004/ Kaczorowska (2013), p According to article 7(1) sub c the students mentioned therein are only required to have comprehensive sickness insurance and to assure the relevant authorities that they have sufficient resources for themselves and their families so as to not become an unreasonable burden on the host Member State s social assistance system. 59 Article 7(4) of Directive 2004/ Guild et al. (2014), p Kaczorowska (2013), p Or, as article 8(4) also provides: where this criterion is not applicable, higher than the minimum social security pension paid by the host Member State. 63 C-200/02, Chen [2004] ECR I-0992, C-408/03, Commission v. Belgium [2006] ECR I Guild et al. (2014), p Guild et al. (2014), p Guild et al. (2014), p C-86/12 Alokpa [2013] ECR I-0000, par. 30. This will be discussed more extensively below in the analysis of the Alokpa case. 10

11 7(1) a, b or c on their own. 68 If however, they do not satisfy these conditions on their own, they can derive a right of residence from the Union citizen who they are accompanying or joining and who does satisfy these conditions. 69 Accordingly, family reunification between EU citizens is hardly ever a problem since the standard of Directive 2004/38 is likely to be applicable. 70 Article 7(2) explicitly extends a right of residence to those family members who are third-country nationals when the Union citizen who they wish to accompany or join satisfies the conditions of article 7(1). 71 For students, as discussed above, a more restricted group of family members from third countries is entitled to accompany or join them. In contrast with family members who are also Union citizens, the right of third-country national family members to reside in a Member State could be completely conditional on their relationship with the Union citizen. 72 This is because, until third-country national family members obtain a right of permanent residence (according to article 16 of the Citizenship Directive), or unless they qualify for long-term residence status on their own name, they do not enjoy a right of residence independent of an Union citizen under EU law. 73 Article 7(3) lists the circumstances under which a Union citizen who is no longer a worker can retain the status of worker or self-employed person. Retaining the status of worker means that the Union citizen is not subject to the resources and sickness insurance requirements referred to in article 7(b) and (c) which makes retention of their long-term residence rights easier 74 and precludes expulsion on economic grounds. 75 These advantages pertaining to the status of worker indirectly create advantages for their family members as it is easier for them to achieve a right of residence to accompany the Union citizen who holds a worker status. 76 Family reunification is thus easier when the Union citizen migrates to other Member States and resides there as a worker (either as an actual worker or as a former worker on the basis of article 7(3)). The right of permanent residence was introduced by the Citizenship Directive. 77 Union citizens and their families, regardless of nationality, who have resided legally and for a continuous period of five years in a host Member State, in accordance with the conditions set out in article 7(1), are granted a right of permanent residence according to article 16 of the Directive. Since legal residence has this autonomous EU meaning, it may not correspond with legal residence as defined by national law in a host Member State. 78 Interestingly, third-country family members can obtain the right of permanent residence on the same conditions as Union citizens according article 16(2) Guild et al. (2014), p Article 7(1)(d) of Directive 2004/ Groenendijk (2013), p The situation is different in family reunification cases concerning static EU citizens and thirdcountry family members since this is outside the scope of Directive 2004/38 and thus likely to be exclusively governed by national immigration rules. 71 Krūma (2013), p Guild et al. (2014), p Ibid. 74 Article 14(2) of Directive 2004/ Article 14(4) of Directive 2004/38; Guild et al. (2014), p Article 7(1)(d) and 7(2) of Directive 2004/ Kaczorowska (2013), p C-425/10 Ziolkowski and Szeja [2011] ECR I-14035, par. 33. In this case the ECJ held that legal residence has an autonomous EU meaning for the purposes of article Directive 2004/38. See also Kaczorowska (2013), p The continuity of residence is not affected temporary absences not exceeding a total of six months a year, or by absences of longer duration specified in article 16(3). Articles 17 and 18 also provide for cases in which the right of permanent residence can be enjoyed before completion of the five-year period. 79 Krūma (2013), p Potential beneficiaries of article 17 include for instance those who have reached the age of retirement and those who become permanently unable to work. Article 18 extends the right of permanent residence to family members of Union citizens who are not nationals and to whom articles 12 and 13 apply. 11

12 2.2.3 Restrictions of rights and expulsions The Directive also ensures a high level of protection against restrictions on free movement rights and against expulsion of EU citizens and their families from a host Member State. 80 Restrictions on rights of entry and residence are, irrespective of nationality, only allowed on grounds of public policy, public security or public health. 81 These derogations should, as also explicated by the Commission guidance, 82 be interpreted very strictly. The personal and family situation of the individual faced with these derogations must be carefully assessed. 83 The measure should be proportionate and strictly necessary to achieve the grounds of public policy, public security or public health. The influence of fundamental rights as enshrined in the Charter and the ECHR has led to more protection against expulsion of EU citizens and their families. 84 However, expulsion cases often concern situations that are regarded as purely internal and therefore outside the scope of the Directive. 85 This is usually because they concern situations of family reunification involving third-country national family members of a static Union citizen. The Citizenship Directive is not applicable in situations where Union citizens have not made use of their free movement rights. 86 While this conclusion can be drawn with regard to the Citizenship Directive, it does not necessarily apply to the Treaty articles the Directive is supposed to give effect to. As can be seen in for instance the Chen or Zambrano cases, which will be discussed extensively below, articles 20 and 21 TFEU may accord Union citizens and their families rights that extend beyond the Citizenship Directive and which offer additional possibilities with regard to the right to family reunification The Directive on Family Reunification Directive 2003/86 88 on the right to Family reunification is another important part of the legislative framework concerning the right to family reunification within the EU legal order. 89 This Directive is, however, only concerned with the right to family reunification for third-country nationals residing in the EU, and does not apply to Union citizens. 90 The Directive confers a directly applicable right to family reunification on third-country nationals who in accordance with art. 3(1) are holding a residence permit issued by a Member State for a period of validity of one year or more who have reasonable prospects of obtaining the right of permanent residence in that Member State. 91 The person submitting the application for family reunification should also have stable and regular resources which are sufficient to maintain the family, health insurance and suitable accommodation. 92 Such a person is entitled under the Directive to be reunited with his nuclear family, including only the spouse and unmarried minor children. 93 Derogations from this right are only allowed on grounds of public order, public security or public health Recital 25 of Directive 2004/38. See also Guild et al. (2014), p Article 27 (1) of Directive 2004/ Communication from the Commission to the European Parliament and the Council on guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States - COM(2009) Ibid, par Guild et al. (2014), p Krūma (2013), p C-34/09, Ruiz Zambrano [2011] ECR I-01177, par Krūma (2013), p Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, OJ L 251, , pp Groenendijk (2014), p Art. 3(3) of Directive 2003/ Groenendijk (2006), p Article 4 of the Directive 2003/ Article 7(1) of Directive 2003/86, Groenendijk (2006), p Kaczorowska (2013), p. 608, Article 4(1) of Directive 2003/ See Article 6 of Directive 2003/86. 12

13 The ECJ has stated in the Chakroun case that the purpose of Directive 2003/86 is to promote family reunification, and the effectiveness thereof. 95 In this case it was also affirmed that provisions of the Directive, in particular art.7(1)(c) regarding minimum resources, should be interpreted in the light of the right to family life enshrined in both the ECHR and the Charter. 96 Interestingly, the ECJ also made explicit references to the Metock and Eind cases. 97 The Court thus draws a parallel in the interpretation of the application of family reunification rights on the basis of EU free movement policy (for Union citizens) and on the basis of the Family Reunification Directive for third-country nationals. 98 There is however, an important difference in the rationales underlying both regimes concerning the right to family reunification in the EU. The right to family reunification under Directive 2003/86 stems mainly from a concern for fundamental and human right to family life for third-country nationals. 99 The focus on the human right to family life is greater in Directive 2003/86 than in the other instruments such as the Citizenship Directive and Regulation No 492/ (for workers) which protect family reunification for Union citizens. The right to family reunification under these latter instruments is more inspired by the realization of (economic) objectives of free movement and mobility of Union citizens. 101 The Family Reunification Directive is inspired not only by human concerns but also gives effect to art. 79 of the TFEU which provides that measures shall be adopted to regulate the entry and residence of thirdcountry nationals, including for the purpose of family reunification. 102 It is not clear that this provision only applies to family reunification between third-country nationals 103 and therefore it could provide a legal basis to regulate family reunification between (static) Union citizens and their third-country family members. 104 In fact, the initial Commission proposal for the Family Reunification Directive also included a provision which would have expressly granted a right to family reunification to static Union citizens as well, with the explicit aim of preventing reverse discrimination. 105 Arguably, political considerations rather than legal competence caused this provision to not be included in the amended proposal. 106 Interestingly, the European Commission is working on a proposal for an EU immigration code, which would extend the right to family reunification of Union citizens who have made use of free movement rights also to static citizens. 107 These potential legislative solutions will be further discussed in Chapter 7 of this thesis. According to the current legal framework, static Union citizens do not enjoy a self-standing right to family reunification under EU law while migrating Union citizens can claim this right under Directive 2004/ This is all the more paradoxical since third-country nationals who are legally resident in a Member State, and who are also static, do enjoy a direct right to family reunification by virtue of Directive 2003/ Static Union citizens remain subject to the often stricter national immigration rules and are therefore in a disadvantaged position compared to legally resident third-country nationals and even more compared to migrating Union citizens. 95 C-578/08 Chakroun (2010) ECR-I01839 par. 43, Hardy (2012). 96 C-578/08 Chakroun (2010) ECR-I01839 par Ibid. paras. 46 and Hardy (2012), p Hardy (2012), p Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union, OJ L 141, Hardy (2012), p Article. 79 TFEU (2)(a). See also Krūma (2013), p Van Elsuwege and Kochenov (2014), p Ibid. 105 Articles 3(1) and 4 of the Proposal of a Council Directive on Family Reunification - COM (1999) Van Elsuwege and Kochenov (2011), p Krūma (2013), p. 273, Peers (2012). 108 Van Elsuwege and Kochenov (2011), p Ibid. 13

14 2.4 Directive 2003/109 It is also relevant to note that migrating Union citizens are not only able to benefit more from EU law in respect of family reunification possibilities than static EU citizens, but also significantly more than migrating third-country nationals in the EU. 110 Directive 2003/ concerning the status of third-country nationals who are long-term residents in the EU was partly meant to remedy this difference in rights under EU law. 112 Third-country nationals who have been lawfully and continuously resident in a Member State for at least 5 years and have adequate resources and sickness insurance can claim the long-term resident status in the Member State of residence according to article 7(3) of Directive 2003/ On the basis of article 16 of Directive 2003/109, if and when the long-term resident third-country national is, despite all the possible limitations 114, allowed to reside in another Member State, his/her family members who fulfill the conditions referred to in art. 4(1) of the Family Reunification Directive and who were already constituted with him/her in the first Member State, shall be authorized to accompany or join the long-term resident. 115 If the family was not already constituted in the first Member State of residence, Directive 2003/86 applies which means that the migrant third-country national will have to lawfully reside in the host Member State for at least another year before he/she can be reunited with his/her family. 116 Thus, in comparison with migrating EU citizens, migrating third-country nationals have much more limited possibilities with regard to family reunification. 117 The dissimilarity in possibilities and entitlements with regard to family reunification for Union citizens and for third-country nationals is striking and begs the question to what extent a right to family reunification exists within the EU legal order. In this regard it is useful to examine to what extent the right to family reunification, either independently or as a part of the right to family life, is enshrined in and protected by the European Convention on Human Rights and the Charter of Fundamental rights of the European Union. 110 Also more than static third-country nationals. This will be discussed in Chapter Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, OJ L 016, , pp Kaczorowska (2013), p Recital 2 of the preamble to Directive 2003/109 expresses this purpose by stating that such persons should be granted a set of uniform rights which are as near as possible to those enjoyed by citizens of the European Union. 113 Articles 4 and 5 respectively of Directive 2003/109. They should also not represent a threat to public policy, public health or public security. 114 Article 14 grants long-term resident third-country nationals the entitlement to reside in another Member State in order to pursue economic activities. See Guild (2014), p However, Member States are given numerous possibilities to also limit access of third-country nationals. For instance, Member States may examine the situation in their labor markets and apply national procedures regarding requirements for filling vacancies and for exercising economic activities, and they may give preference to Union citizens and their family members. See article 14(3) of Diretive 2003/109. Furthermore, if Member States already had set quotas for the admission of third-country nationals in the legislation existing before the adoption of Directive 2003/109, they may continue to uphold these. See article 14(4) of Directive 2003/ Article 16(1) of Directive 2003/ Article 16 (5) of Directive 2003/ Guild (2014), p

15 Chapter 3: The ECHR and the Charter 3.1 The European Convention on Human Rights The rights provided in the European Convention on Human Rights (ECHR) have long been recognized by the ECJ as general principles of EU law. 118 Article 6(3) of the TEU now affirms explicitly that the rights in the ECHR are part of the general principles of EU law and are therefore binding and among the highest ranking sources of EU law. 119 An important way in which the rights enshrined in the ECHR are integrated into EU law is through the incorporation of corresponding fundamental rights in the Charter on Fundamental Rights of the EU. 120 This is because many fundamental rights in the Charter correspond to the human rights under the ECHR and to the extent to which they do, the meaning and scope of those rights is to be the same as those laid down by the ECHR according to article 52(3) of the Charter. 121 Since the Charter is binding by virtue of art. 6(1) TEU, the articles, including those which correspond to rights of the ECHR, have direct application within the European Union. Aside from that, all Member States of the EU are a party to the ECHR and are therefore also bound by it through that. Furthermore, by virtue of article 46 ECHR, the judgments of the European Court of Human Rights (ECtHR) are also binding upon the Member States. Article 8 of the ECHR, which enshrines the human right to family life, does not establish a clear and independent right to family reunification. 122 The ECJ has referred to the right to family life of article 8 ECHR in several family reunification cases. 123 However, application of article 8 ECHR under EU law is only possible if there is some connection with another provision of EU law. 124 Nonetheless, if there is no connection with EU law, as for example in purely internal situations, all Member States are still bound by article 8 ECHR because they are all a parties to the Convention. 125 The ECJ explicitly reminded Member States of this in the Metock judgment. 126 Since article 8 ECHR is applicable to situations both within and outside the scope of EU law, it could therefore in theory serve as a solution to reverse discrimination against static Union citizens in purely internal situations. It is therefore relevant to analyze to what extent the right to family life in article 8 ECHR includes a right to family reunification. The European Court of Human Rights allows Member States a wide margin of appreciation in relation to their immigration policies and the particular circumstances of the case are often determinative. 127 Member States are entitled to control the entry of non-nationals into their territory and their residence there. 128 Article 8 ECHR does not establish a right for any non-national to enter or reside in a particular country other than his own, 129 nor does it impose a general obligation on a State to authorize family reunion in its 118 C-29/69 Stauder [1969] ECR 419, par Kaczorowska (2013), p Andreadakis and Morano-Foadi (2011), p Douglas-Scott (2012), p Van Elsuwege and Kochenov (2011), p Ibid p. 462, C-60/00, Carpenter [2002] ECR I-06279, C-459/99 MRAX [2002] ECR I-6591, par. 53, C-127/08, Metock [2008] ECR I-6241, par. 62, C-291/05, Eind [2007] ECR I-10719, par Van Elsuwege et al (2011), p C-256/11, Dereci and Others [2011] ECR I-11315, par.73, Groenendijk (2013), p C-127/08, Metock [2008] ECR I-6241, par Van Elsuwege and Kochenov (2011), p ECtHR, Darren Omoregie and Others v. Norway, 31 July 2008, Application No. 265/07, par. 54, Van Elsuwege and Kochenov (2011), p ECtHR, Darren Omoregie and Others v. Norway, 31 July 2008, Application No. 265/07, par