Tag Archives: ecj

Case C-456/12 – O and B Judgment of the ECJ

The official press release in relation to the judgment of the ECJ for Case C-456/12 reads as follows:

Directive 2004/38/EC grants EU citizens and their family members the right to move and reside freely within the territory of the Member States

1. In that regard, the Raad van State (Netherlands, Council of State) has made two separate requests to the Court of Justice for a preliminary ruling in the context of four cases concerning the refusal of Netherlands’ authorities to grant a right of residence to a third-country national who is a family member of an EU citizen of Netherlands nationality.

Case C-456/12: Mr O. and Mr B.’s situation

Case C-456/12 concerns the refusal to grant a right of residence where the EU citizen returns to the Member State of which he is a national after short periods of residence in another Member State with the family member in question.

In 2006, Mr O., a Nigerian national, married a Netherlands national and from 2007 to April 2010 he lived in Spain. During that period, Mr O.’s wife resided for two months with her husband in Spain and regularly spent time with Mr O. in the form of holidays in Spain.

Mr B., a Moroccan national, lived from December 2002 with his partner who has Netherlands nationality. In 2005, Mr B. moved to Belgium and lived in an apartment rented by his partner. His partner resided with Mr B. in Belgium every weekend. In April 2007, Mr B. returned to Morocco and in July 2007 Mr B. married the Netherlands national in question.

As Mr O. and Mr B. were family members of EU citizens, the referring court asks whether EU law, in particular Article 21 TFEU and Directive 2004/38, grants such third-country nationals a right of residence in the Member State of which the citizens in question are nationals.

The Court points out first of all that Article 21 TFEU and Directive 2004/38 do not confer any autonomous right on third-country nationals. Any rights conferred on third-country nationals are rights derived from the exercise of freedom of movement by an EU citizen.

The Court finds next that Directive 2004/38 does not confer any derived right of residence on third-country nationals who are family members of an EU citizen residing in the Member State of which he is a national. Directive 2004/38 applies only where a citizen moves or resides in a Member State other than that of which he is a national.

With regard to the question as to whether Article 21 TFEU grants such a derived right of residence, the Court explains that a refusal to allow a derived right of residence for a family member of an EU citizen who is a third-country national, may interfere with the EU citizen’s freedom of movement under that provision. An EU citizen may be discouraged from leaving his Member State of origin because he is uncertain whether he will be able to continue, on returning to that Member State, a family life which he will have created or strengthened in another Member State. However, such an obstacle will arise only where the residence in the host Member State has been genuine, that is to say where it satisfies the requirements of Directive 2004/38 relating to a right of residence for a period of longer than three months.

It follows that, where an EU citizen has, pursuant to and in conformity with the provisions of Directive 2004/38 relating to a right of residence for a period of longer than three months, genuinely resided in another Member State and, during that genuine residence, a family life has been created and strengthened in that Member State, the effectiveness of Article 21 TFEU requires that the citizen’s family life in the host Member State may continue on returning to his Member State of origin. That implies that, in such a case, a derived right of residence is allowed for the family member who is a third-country national.

The conditions for granting such a derived right of residence, based on Article 21 TFEU should not, in principle, be more strict than those provided for by Directive 2004/38 for the grant of a derived right of residence to a third-country national who is a family member of an EU citizen where that citizen has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national. Even though Directive 2004/38 does not cover the return of the EU citizen to the Member State of which he is a national, it should be applied by analogy given that in both cases it is the EU citizen who is the reference point for the grant of a derived right of residence to a third-country national who is a member of his family.

As regards the question whether the cumulative effect of various short periods of residence in the host Member State may create a derived right of residence for a family member of an EU citizen who is a third-country national on the citizen’s return to his Member State of origin, the Court points out that only a period of residence satisfying the conditions of Directive 2004/38 relating to a right of residence for a period of longer than three months will give rise to such a right of residence. The Court notes that, even when considered together, short periods of residence (such as weekends or holidays spent in a Member State other than that of which the citizen is a national) do not satisfy those conditions.

The court notes in addition that Mr B. acquired the status of family member of an EU citizen after his partner’s residence in the host Member State. A third-country national, who has not had, at least during part of his residence in the host Member State, the status of family member of an EU citizen, is not entitled to a derived right of residence in that Member State pursuant to Directive 2004/38. Accordingly, that third-country national is also unable to rely on Article 21 TFEU for the grant of a derived right of residence on the return of the EU citizen to the Member State of which he is a national.

In the light of all the foregoing, the Court rules that where an EU citizen has, pursuant to and in conformity with the provisions of Directive 2004/38 relating to a right of residence for a period of longer than three months, created or strengthened a family life with a third-country national during genuine residence in a Member State other than that of which he is a national, the provisions of that directive apply by analogy where that EU citizen returns, with the family member in question, to his Member State of origin.

[ Source: http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-03/cp140032en.pdf ]

In short, this new ruling outlines the following:

  1. A residence period of at least three months is required (para 54)
  2. Weekend visits and holidays do not count as residence for this purpose (para 59)
  3. Any citizen of the Union can potentially benefit from this right, not just workers and the self employed (references to Article 7 of Citizens Directive 2004/38 , e.g. para 56, and to Article 21 of the TFEU, e.g. para 54)
  4. During the period of residence family life must have been “created or strengthened” (para 51)
  5. Abuse is not allowed (para 58)

( Read more from Colin Yeo on The Free Movement Blog:  Surinder Singh Immigration Route )

I draw particular attention to the fifth point.  Case C-109/01 raised the point of persons deliberately placing themselves into a possition to be beneficiaries of EU points of law.  The ruling outlined that this is not abuse (even if it can be used as part of an assessment leading to “alleged” abuse).

 

Advocate Generals Opinion – Case S (C‑457/12) and O (C‑456/12)

On the 12th December 2013 in the case of S (Case C‑457/12) and O (Case C‑456/12) Advocate General Sharpston delivered an outstanding opinion to the ECJ.

Now this is just an opinion, and is not legally binding.  It is, however, persuasive in a court of law (as outlined by the Home Office in Chapter 9 – ECI Appeals.

1.2 Opinions of the Advocate General

Although the Advocate General’s opinion in a particular case is not binding on the ECJ, it is often followed. The opinion can be submitted to the AIT as persuasive, but not binding, authority until it is superseded by the relevant ECJ judgment. i.e. A Presenting Officer may refer to an Opinion of the Advocate General in submissions and ask the Immigration Judge to note its comments but it must be clear that it is not relied upon as a legal ruling.

The full opinion can be found here: Case of S and O: Advocate General

The actual responses that are suggested are as follows:

Conclusion

159. In the light of the foregoing considerations, I am of the opinion that the Court should answer the questions raised by the Raad van State to the following effect:

In Case C‑456/12 O:

(1)      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 does not apply directly to EU citizens returning to their Member State of nationality. However, the Member State of nationality may not give such EU citizens less favourable treatment than that owed to them as a matter of EU law in the Member State from which they moved to their Member State of nationality. As a result, Directive 2004/38 indirectly sets out the minimum standard of treatment that a returning EU citizen and his family members must enjoy in the EU citizen’s Member State of nationality.

(2)      EU law does not require an EU citizen to have resided for any minimum period of time in another Member State in order for his third country national family members to claim a derived right of residence in the Member State of nationality to which the EU citizen then returns.

(3)      An EU citizen exercises his right of residence in another Member State if he makes that Member State the place where the habitual centre of his interests lies. Provided that, when all relevant facts are taken into account, that test is satisfied, it is irrelevant in this context whether that EU citizen keeps another form of residence elsewhere or whether his physical presence in the Member State of residence is regularly or irregularly interrupted.

(4)      Where time elapses between the return of the EU citizen to the Member State of which he is a national and the arrival of the third country national family member in that Member State, the family member’s entitlement to a derived right of residence in that Member State does not lapse provided that the decision to join the EU citizen is taken in the exercise of their right to a family life.

In Case C‑457/12 S:

Where an EU citizen residing in his Member State of nationality exercises rights of free movement in connection with his employment, the right of his third country national family members to reside in that State depends on the closeness of their family connection with the EU citizen and on the causal connection between the family’s place of residence and the EU citizen’s exercise of rights of free movement. In particular, the family member must enjoy a right of residence if denying that right would cause the EU citizen to seek alternative employment that would not involve the exercise of rights of free movement or would cause him to move to another Member State. It is irrelevant in that regard whether the EU citizen is a frontier worker or exercises his right of free movement in order to fulfil his contract of employment concluded with an employer based in his Member State of nationality and residence.

 

It’s an excellent read – well worth going through in great detail. 🙂