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Articles

23 November 2011

After Zambrano: The CJEU refines EU family reunion rights of EU nationals who have never moved from

Derici 15 November 2011

Background

On 8 March 2011, the CJEU handed down its decision in Zambrano1 where it found that EU national children who were Belgian nationals and had always lived in Belgium were nonetheless entitled, by reason of Article 20 TFEU to:

  • A residence permit for their irregularly residing third country national father and mother in order that they could remain In Belgium to take care of the EU national children;

  • Work permits for those third country national parents so that they could take care of their children.

This decision came as something of a surprise as it reconfigures EU law by finding that the rights of citizens of the Union apply everywhere in the EU not just in Member States other than that of the individual’s underlying nationality. The problem which Zambrano addressed was that of so-called reverse discrimination – when EU law provides for more extensive rights for individuals than their own national law. The problem is one which comes up in family reunification where national law in a number of Member States is more restrictive than EU law (Articles 2 and 3 Directive 2004/38). The result is that EU migrant workers have better family reunification rights than nationals of the state. As a result of the continuing effect rule in EU law, this application of EU family reunification rights also extends to EU migrant workers who return to their Member State of underlying nationality (the so-called Surinder Singh effect named after the first case on the point in 1991). Before the Zambrano decision, EU nationals had to exercise their free movement rights in an effective way (more than a day trip to France) to enjoy EU family reunification rights. As a result of Zambrano there seemed to be a paradigm shift from EU rights as immigrants’ rights (immigrant citizens of the Union) exercisable only after the act of migration to full citizens’ rights according to which the EU territory becomes treated as a single legal space for its citizens.

On 5 May 2011 the CJEU handed down judgment in McCarthy2 which not only apparently reversed the Zambrano paradigm shift but went ever further and seemed to question the rights of EU dual nationals who had been born and lived all their lives in the state of one of their nationalities. In that decision, the CJEU held that a dual British/Irish national who had been born in the UK and always lived in the UK but had never worked or otherwise exercised an economic or self sufficient right was not within the scope of EU law (not Article 20 TFEU, nor Article 21 TFEU nor Directive 2004/38). Thus her third country national husband could not rely on EU family reunification rights. Leaving aside some of the puzzling aspects of the case, it constituted a clearly different direction from Zambrano. Indeed, the case embedded EU family reunification rights even deeper in the logic of migration than had been the case before Zambrano. According to the McCarthy approach, not only did an EU national have to be an immigrant in the EU to enjoy EU family reunification rights but he or she had to be economically active or self sufficient. EU citizenship, according to the McCarthy approach, is predicated on migration and economic activity. The benefits of this citizenship can only be claimed by those who migrate and work, are self employed or are self sufficient.

Clearly this is an unfortunate state of affairs for EU law. In the UK this has resulted in applications on the basis of Zambrano being bounced back without a decision by the authorities (UKBA), a substantial number of appeals pending before courts at a variety of levels where Zambrano had been pleaded and judges are uncertain of the correct approach. The UK is not the only Member States struggling with the Zambrano/McCarthy fall out.

Now the CJEU has handed down judgment in yet another case – Dereci – which has been trumpeted as the answer to our questions. As with all advertising, one must be cautious – but at least there is a little lifting of the current fog. This is a preliminary note to provide the key reasoning of the case – undoubtedly there will be more analysis in the legal press in due course.

 

C-256/11 Dereci 15 November 2011

Eight Member States participated in the case – Austria (the country directly involved), Denmark, Germany, Ireland, Greece,3 the Netherlands, Poland and the UK. It involves two men and one woman (third country nationals) all married to Austrian nationals, one woman (an adult third country national) seeking to join her father an Austrian national resident in Austria and one man (adult third country national) seeking to remain in Austrian with his mother, an Austrian national. It was decided according to the CJEU’s urgent procedure as expulsion orders had been made against a number of them.

The case is complicated by the fact that one of the men is a Turkish national so not only does EU citizenship law apply as well as Article 8 ECHR but the EC Turkey Agreement is engaged.

In accordance with what seems to be a new approach of the CJEU, in the opening section under the legal context, it commences with International Law then progresses to EU law. Under international law, the CJEU sets out the wording of Article 8(1) and (2) ECHR. The framing appears to indicate that Article 8 ECHR takes priority. Under EU law it sets out EC-Turkey Article 41 Additional Protocol and Decision 1/80, bits of Directive 2003/86 (family reunification for third country nationals – the UK does not participate in this directive) and Directive 2004/38 articles 1-3.

 

The Facts

Mr Dereci: A Turkish national who arrived irregularly in Austria, married an Austrian woman with whom he has three children, all Austrian nationals.

Mr Maduike: A Nigerian national who arrived irregularly in Austria and married an Austrian national (no children).

Mrs Heiml: A Sri Lankan national who arrived regularly, already married to her Austrian husband and subsequently her residence permit expired.

Mr Kokollari: A Yugoslav (no mention of what nationality he has now) who arrived in Austria at the age of two with his parents. His mother on whom he is dependent, is now an Austrian national.

Mrs Stevic: An adult Serbian national (with a husband and children who are also Serbs) who seeks family reunification with her father, an Austrian national resident in Austria, on whom she is dependent.

All of the applicants have had their applications rejected by the Austrian authorities. The four who are resident in Austria have received expulsion orders and removal directions. The grounds for refusal of their applications included:

  • Procedural defects;

  • Failure to comply with the obligation to remain abroad during the processing of an application;

  • Lack of resources;

  • Breach of public policy.

The national authorities refused to apply EU law on the basis of the wholly internal rule and rejected the Article 8 ECHR claims.

The CJEU notes already in the facts that “unlike the situation in Ruiz Zambrano, there is no risk here that the Union citizens concerned may be deprived of their means of subsistence.” (para 32). The court never returns to this issue but one does wonder whether access to subsistence may not be a key feature of the ‘genuine enjoyment’ test discussed below.

The national court asks many questions which fall into three groups – does any secondary EU apply to the situation? Does any Treaty apply to the situation? Does the EC Turkey Agreement apply and if so in what way?

 

The Findings

Secondary Legislation

The first issue the CJEU deals with is the relevance of Directive 2003/86 on family reunification for third country nationals (UK opted out). This Directive does not apply to citizens of the Union. It can be used exclusively by third country nationals (paras 47 and 48).

As Austria has a strict ban on dual nationality the CJEU did not answer the question whether the family members, such as Mr Kokollari’s mother or Mrs Stevic’s father, both of whom were third country nationals before they naturalized as Austrians, could have relied on their third country citizenship to enjoy the protection of Directive 2003/86 even though they had Austrian citizenship.

The second issue is whether Directive 2004/38 on the right of citizens of the Union to move and reside applies to the situation. The CJEU, consistent with its decisions in Zambrano and McCarthy, finds that it does not apply to any of the situations (paras 52 and 58).

So far there is nothing surprising about the reasoning or the judgment which is consistent with both the previous decisions.

 

Treaty Rights

Treaty rights of citizenship: In Zambrano, the CJEU held that Article 20 TFEU which creates the status of citizenship of the Union also constitutes the basis of a right to live in the Union, even in one’s home Member State. This was effectively rejected in McCarthy. Now the CJEU adopts a rather murky approach. First, it confirms the principle that EU law does not apply to wholly internal situations (para 60). Then it states that EU nationals (like the Austrians in the case) in their own countries are not necessarily in purely internal situations (paras 61 and 63). To back that statement up it reminds the reader that it has insisted a number of times that citizenship of the Union is intended to be the fundamental status of nationals of the Member States (para 62).

At this point we discover repeated here the wording from Zambrano which puzzled us: Article 20 TFEU precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status (para 64). Then the CJEU gives us a little insight into the reasoning from Zambrano – if the Zambrano parents had not been allowed to remain in Belgium, their Belgian children would have been unable to exercise the substance of the rights conferred on them by their status as citizens of the Union (para 65). This means, according to the CJEU, that the criterion relating to the denial of the genuine enjoyment of the substance of the rights of Union citizen refers to situations in which the citizen has, in fact, to leave not only the territory of the home Member State but also the territory of the Union as a whole (para 67).

At this point the CJEU reveals its hand. It states: “Consequently, the mere fact that it might appear desirable to a national of a Member State, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a Member State to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted.” (para 68).

What this means is that as long as the EU national can move to another Member State and exercise a Treaty right (work, self employment, self sufficiency etc) and enjoy family reunification that way then he or she cannot claim family reunification without having moved. So the citizenship right of family reunification only applies to EU nationals who move to another Member State or after working elsewhere back to their own Member State unless on the facts the EU citizen just cannot move (eg they are little children).

However, the matter does not stop there, as the CJEU signalled to the reader at the beginning by commencing with Article 8 ECHR. Already at para 69 it states that this finding (get on your bikes if you want family reunification) is without prejudice to the right to protection of family life – Article 8 ECHR.

 

Fundamental Rights

The CJEU takes note of Article 7 Charter (family life) and Article 8 ECHR (family life) which have the same scope. It states that if the national court determines that the case (or any one of them) comes within EU law then it must also apply Article 7 Charter (para 72). What this means is that if the national court determines that the family cannot move to another Member State to exercise a free movement right and family reunification in the usual way under Directive 2004/38 then the case comes within the scope of EU law and the national court must also apply Article 7 Charter. For instance, if one goes back to Zambrano, the family could not move to another Member State as the children were too young and the parents were irregularly present in Belgium. So, one has the obstacle which brings the case within the scope of EU law – EU citizenship. Then not only does the citizenship right apply, the right of the children to reside in Belgium but there is also an Article 7 Charter right. As in Zambrano the CJEU found that the children’s EU citizenship right to have their parents live with them included their right to residence and work permits there does not appear to be any need for Article 7 Charter. So the reference here to Article 7 Charter must apply to something else. That something else logically must be the case where the children have parents of different nationalities – for instance one a citizen of the state and one a third country national. However, in that case the CJEU tells the family they must move to another Member State and exercise their free movement rights as there is no obstacle to doing things in the usual way. So, presumably one would need another obstacle – possibly if the EU national parent is disabled or something else which would make the use of a free movement right unreasonable.

But here I have pre-empted the next issue which is: what is the test of whether the family can move to another Member State? The CJEU does not tell us. Among the options are:

  • Reasonableness;

  • Proportionality;

  • Hardship;

  • Insurmountable obstacle?

From the Zambrano judgment itself, it seems that the test cannot be insurmountable obstacle as from the Chen judgment we know that parents with irregular status can move around with their EU national babies.4 So the test must be lower – a mix of proportionality/hardship seems probable but this is mere speculation. The test must be linked to the evil to be avoided: the denial of the genuine enjoyment of the substance of the rights conferred by virtue of the status as a citizen of the Union. The best guidance may be that found in para 68 “Consequently, the mere fact that it might appear desirable to a national of a Member State, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a Member State to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted.” It would seem that something more than desirability must be at play.

If the national court finds that the case is not within the scope of EU law, that is to say, that the family could move to another Member State and exercise their rights in the usual way, then the CJEU tells us that it must consider Article 8 ECHR (pace, Theresa May and the cat).5

 

EC-Turkey Agreement

One sense a certain sigh of relief at the CJEU when it arrives at the EC Turkey Agreement. However complicated this issue is, it is much less problematic than Article 20 TFEU. First, it corrects the national court that what is really at stake is the standstill provision in Article 41 of the Additional Protocol on access to self employment (para 86). Then it happily rattles through its jurisprudence on the standstill clauses in EC-Turkey law and follows its decision in C-301/09 Toprak & Oguz. The key point here is that Austria had a fairly restrictive law on self employment at the date of its EU accession. It then amended that law to make self employment easier and then changed its mind again and made it more difficult (back to the accession date provisions). The CJEU held that Austria could amend its law as much as it liked, but every element of every amendment which makes it easier for a Turkish national to be self employed can continue to be relied upon by a Turkish national irrespective of the fact that the state changes the law again to make it more restrictive (para 94). This is a lock step approach – every advance which favours a Turkish national to be self employed in a Member State must be retained to the advantage of Turkish nationals applying at any subsequent time irrespective of whether the state has ostensibly withdrawn the advantage. It is irrelevant that at the time of accession/application of the protocol national law was less favourable to the Turkish national (para 94).

Finally, Some governments argued that Mr Dereci could not enjoy the protection of the standstill clause because his status was irregular in Austria. The CJEU rejected that argument on a rather convoluted interpretation of Austrian law to the effect that he was lawfully present when he applied. This is perhaps the most peculiar part of a rather extraordinary judgment (para 99).

 

Application of Dereci in the UK

There are three key points to remember:

  • If the family can move to another Member State and exercise Treaty rights there, then they must take that option;

  • If the family cannot reasonably move to another Member State to exercise Treaty rights there then Dereci may be relevant;

  • If the family cannot move to another Member State, then Article 7 Charter is relevant – the family is entitled to respect for its family life.6

There is also the EC Turkey standstill provision interpretation.

 

Elspeth Guild, Kingsley Napley LLP, London

23 November 2011

 


1 C-34/09.

2 C-434/09.

3 This was the only Member State which argued that the Zambrano rule should be widened and all EU nationals should enjoy EU family reunification rights wherever they live.

4 C-200/02.

6 The test is in para 68: “Consequently, the mere fact that it might appear desirable to a national of a Member State, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a Member State to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted.”