ARWA AJABSHAH— EU Law 2021-22 DENNING LAW SCHOOL CITIZENSHIP. ‘THIS TOPIC IS TO BE READ IN CONJUNCTION WITH CLASS DISCUSSIONS Article 20 TFEU defines citizenship. Article 9 TEU further states that “every national of a Member States shall be a citizen of the Union. Cicenship ofthe Union sal Be addtional tmaonal icenship and shal not replace Therefor, FU citizenship isttally dependent upon nationalicy ofa Member State. Confrral of nationality isan deisye competence of Member States (ichelert [1992), Further, Article 18 TFEU prohibits discrimination in matters within the scope of EU cle 21 ‘TFEU sets out the right of all citizens to move and reside freely within the territory of ‘The latter Article functions in tandem with Article 45 TFEU on the free movement of extends the freedom of movement to the non-economically active. Directive 2004/38 consolidates all previous laws regarding citizenship: Basic concept behind the Directive is that EU citizenship isthe ‘fundamental status’ of those exercisipthcir right to free movernent (Preamble para.3) rather than their particular status as worker, self-efagloyed, student, ete. Please note that the Directive applies to Union citizens and their or reside in a Member State other than their own’ (Article 3 firective) (ie. EU Citizens and thi family members must have moved to or resided in another, State to activate their rights). This will exclude the purely internal cases as seen in the case of Mg)won and Jhanjan [1982] — where the relevant EU Citizen had not moved out of his home country(@)exercise his right of FMP ~ could not rely on rations citizenship law ~ refer to class discussions on i inherit ansnape§ yoy cee ne ue ie the Court has found that where an ina fact, lawfully resident in another Member State, whether ; members but only if they ‘move to oon the basis of national law or EU law, thepsituation is within the scope of the EU Treaties. They therefore have a right not to be discriminated :4@heXt under Article 18 TREU, even if they do not fall into one of the economic categories recognised XB law (Martinez Sala v Freistaat Bayern [1998]). However, Article 24(1) of Dr 2004/38 provides that only those living in another Member State on the basis of the Directive MWill enjoy equal treatment with the nationals of that Member State within the scope of the Treaty.. Thix®nly confers a right to equal treatment to people covered by the Directive (ic. the four sie Article 7) and falls short of the application of equal treatment generally for citizens of the me fully resident in another Member State. Article 7 afte Birective 2004/38, requires the national of one MS, to either be a worker, self-employed or sel-su@ o qualify for Citizenship rights in another MS. Fahy Members Article 2 of 2004/38 defines the parameters of family members to include: Article 2(2)(a) — spouses Article 2(2)(b) ~ registered partners Article 2(2)(c) ~children below 21 who are direct descendantsARWA AJABSHAH— EU Law 2021-22 DENNING LAW SCHOOL Article 3(2)(a) — any relatives dependent on citizens or spouses require personal care on health grounds (the ‘words used to facilitate such relatives hence the right is subject to MS discretion (however, if rejected, there should be a justification), Netherlands v. Reed — Prior to ditective, a cohabiting couple did not have the right as family members. However, Article 3(2)(b) ~ MS should facilitate cohabites in a “durable relationship” which attested” which are however not defined, Residence Permits © The directive has also abolished a requirement for residence permit for any EU, 2. and such permit is only required for non-EU family members provided they stay for more th e months (Procureur du Roi v Royer) ¢ A12 of 2004/38 — Article 12 provides that if the EU citizen digpr" who are themselves EU nationals do not lose the right to, ior har he reabent nthe ate For ieerhan expel hits however thax o scndiened wale for both EU and non-EU family members depends oatheir being workers or self-employed, or fulfilling the ‘sufficient resources’ requirement (unless t Row icquired the right of ‘permanent residence’). members, stricter er requirements are include requirement of: (i) a 3 year marriage and residence for at least one year in the eS s (ii) if by agreement or court the custody of children is given fo me pe (fF ee ge fl ermine deere niadenon, a io) ay agement Or cour ode the spouse has tM ene Wes the host state, family members Nor do non-BU family members unless Permanent Residence A16 of 2004/38 — EU jan will get a permanent residence after 5 years of continued residence in the ‘member state, this 1 ipplicable to family members (EU and non-EU) However, permanent residency can be lost if a et for 2 years. Once the right of permanent residence has been acquired, it is no longer age ish that the person is a worker, self-employed or has sufficient resources, ciples Generat i aay ‘of 2004/38 ~ Union citizens have the right to reside in another MS for upto 3 months with a passport or ID cards A6(2) of 2004/38 ~The above right is also accorded to family members of EU citizens, AT(3)(a) of 2004/38 — States that a worker does not cease to ren due to illness, accident, involuntary employment or vocational trai in a worker if he loses his employment ng.ARWA AJABSHAH— EU Law 2021-22 DENNING LAW SCHOOL Non-Economically Active Citizens Note that the conditions in the Directive were intended to prevent beneficiaries of the right of residence from becoming an ‘unreasonable’ burden on the public finances of the host Member State, but those conditions must be applied in accordance with the principle of proportionality. Baumbast v Secretary of State for the Home Department [2002] - Right of residence was given ay \- EU primary caregiver (mom) on the basis of a non-economically active BU child who was ee education in the host state — if the primary caregiver was refused leave to remain in the UK, child would als have o lave and this would preven the chil from enjoying his EU law rigs Qeucation = based on this, the courts held that the primary caregiver would also be allowed to sw at K provided that the primary caregiver, in accordance with the conditions of the Directiv not become an unnecessary burden on the host state. oe Zhu and Chen [2004] - A Chinese couple went to Ireland to deliver their se iby who became an BU national. When the parents moved to UK, they were ordered to leave, theyqlgimed a right to reside on the basis of the nationality of their child granted as cannot deprive the way fa tight to residence provided under Article 21 TFEU. The Court found that, regardless “S wer the individuals concerned in travelling to Ireland, to deprive the mother of residence would be 19 8flectively deprive the child of its right to residence as provided under Article 21(1) TREU. Ruiz Zambrano [2011] -‘The Court of Justice held that that 2. 20 TFEU would only preclude a Member State from refusing to grant a tight of residence an ividual whose children are EU citizens with nationality and residence in the Member State , ae such @ refusal would deprive the children of the “genuine enjoyment of the substance wee anc to their status as EU citizens’ Please note Shirley McCarthy v Secretary mes Home Department (2011) - Article 21 TFEU of directive will not be applicable if the person is not \qUalfied person that is such person has not exercised the right of| free movement within the EU, er, self-employed or self-sulficient person, Dereci [2011] - Case cor third country nationals wishing to reside in Austria with their Austrian family member. Noneaof ifaaPplicants’ family members had exercised their right to free movement within the Union. The Court, reting the test of ‘genuine enjoyment of the substance” of citizenship rights, stated that such a & refers only to situations in which the Union citizen has to leave not only the territory of the Meniber State of which they are a national but also the territory of the Union as a whole. The Court jored the possible infringement of the right to respect for private and family life, as it simply left iSsue of whether the current situation fell within the scope of EU* law to be determined by the ref bal Case — any person seeking the rights under citizenship for the purposes of procuring benefits (ie. using EU Law for benefit tourism), shall not be granted any rights. Fundamental Right ‘The EU initially did not have a consolidated charter of FR but the CJEU recognized the FRs in the (City of ULM case). Subsequently thereafter, all the FRs from treaties, case law etc were consolidated under the Treaty of Lisbon and the Charter of FRs was made enforceable on the entire EU, Pursuant to Article 6(1) TEU, the Charter will have the same effect as treaties,ARWA AJABSHAH— EU Law 2021-22 DENNING LAW SCHOOL , S and L Case ~ the courts held that right of a family life is a separate condition under FR. Under the family reunification directive, the state is obliged to ensure reunification of families but this can be subject to conditions like self-sufficiency. FR should be considered by the national courts and they should make a balanced and reasonable assessment of all interests in play, particularly, interests of any child and avoid undermining the objective of the directive. Article 7 of the Charter of Fundamental Rights states that every person shall have the right to enjoy private an ty es Article 24(2) of the Charter states that there is an obligation to respect the best interests of pao ‘Article 24(3) states that there isa need forthe child to maintain regular personal contraci3¥gboth parents. Right to education S ‘The Court has increasingly demonstrated a desire to create a single market ie ion within the Union under the basis of Union Citizenship. In Grzelezyk v Centre Public d’ ‘ale (2001), the Court considered the requirement to demonstrate sufficient resources. It cohgerned the availability of a Belgian ragk social assistance allowance, the minimex (the Belgian minimum to an EU citizen r student in Belgium. The Court found that a Belgian student in MEGzelezyk’s position would qualify for the minimex. The prohibition on discrimination under Article must be read in conjunction with the provisions on citizenship under Article 21 TFEU and preiyded a Member State from refusing a benefit such as the mrinimex to EU nationals from other Member in circumstances where it would have been available to the Member State’s own nationals. The id that, while Member States may withdraw rights of residence from students if they have in; fig resources to support themselves, such a measure ‘must be proportionate and not automatic. ‘The Court adopted a similar approach in MY [2002], Ms D*Hoop was a Belgian national attending school in France. She was denied uneitygi@yment benefit. The Court agreed that she was not a worker and not entitled under Regulation 492/11 @iiele 7(2). However, it held that education is within the scope of the ‘Treaty and that Ms D’Hoop was Ising her right to free movement as a citizen of the BU under Article 21 TEU. She therefore had aPhot to be discriminated against in access to benefits In Bidar (2005] the Cour that a provision requiring students to be ‘settled’ in the host Member State for the purposes of obtdiyihg a student loan was incompatible with Article 18 TFEU. However, in a rather restrained mood iho ‘added that the Member State could require that the student had ‘established a genuine link with th-society of that Member State’. In decane “orster (2008] the Court sided once again with Member States and confirmed that the requirenfenttof a ‘genuine link with the society of that Member State” could be interpreted as necessitating, rest or five years before a grant is paid to assist with studies,