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 The opinion can be submitted to the AIT as persuasive, but not binding, authority until it is superseded by the relevant ECJ judgment.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:
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. 🙂