Maria Haag, PhD Researcher, European University Institute (Florence, Italy) & Michigan Grotius Research Scholar, University of Michigan Law School (Ann Arbor, Michigan)
Background
Five years ago, a significant ruling in the case of C-34/09 Ruiz Zambrano was delivered by the Court of Justice of the European Union (CJEU). The court found that national measures that hinder EU citizens from genuinely enjoying their rights as citizens are prohibited under Article 20 of the Treaty on the Functioning of the European Union (TFEU). This protection of “genuine enjoyment” had two key implications. Firstly, EU citizens could invoke Article 20 TFEU against their own Member State even if they hadn’t exercised their free movement rights, thus overcoming the Court’s usual jurisdictional limitations in internal situations. Secondly, Member States were barred from refusing residency to non-EU parents or guardians of minor citizens if doing so would compel those children to depart the EU, thereby denying them the ability to exercise their EU citizenship rights.
The CJEU, shortly after this landmark judgment, began interpreting Ruiz Zambrano very narrowly in a series of cases (C-434/09 McCarthy, C-256/11 Dereci and Others, C-40/11 Iida, C-356&357/11 O. and S, C-87/12 Ymeraga and Others, C‑86/12 Alokpa and Moudoulou and C-115/15 NA), causing uncertainty about the initial impact of the Ruiz Zambrano decision. Unlike Ruiz Zambrano, these subsequent cases primarily focused on Article 20 TFEU’s application within a host Member State. The Court determined that the applicants were not protected under Article 20, even if they had never resided in another Member State - for example, being born in an EU Member State different from their nationality and never leaving. The most recent cases, C-304/14 CS and C-165/14 Rendón Marín, however, revisit the Ruiz Zambrano decision, directly addressing the right under Article 20 TFEU within the home Member State. On September 13, 2016, the Grand Chamber delivered these two judgments examining the impact of a non-EU parent’s criminal history on their derived residency right under Article 20 TFEU and the permissible extent of limitations on this right due to public policy or security concerns.
C-304/14 CS: facts and judgment
The case of CS involved a Moroccan citizen residing in the UK with her British son. In 2012, she received a 12-month prison sentence for a criminal offense and was subsequently informed of her liability for deportation. Her asylum application was rejected. Upon appeal, the First-tier Tribunal (Immigration and Asylum Chamber) concluded that deporting her would breach her child’s rights under Article 20 TFEU. The Home Secretary was allowed to appeal this ruling to the Upper Tribunal, which sought guidance from the CJEU on the circumstances under which EU law permits the deportation of a non-EU caretaker of an EU citizen, and whether Articles 27 and 28 of Directive 2004/38 (the ‘citizens’ Directive’, outlining the rules for EU citizens relocating to another Member State) were relevant in this instance.
The Court’s two-part decision first addressed whether a non-EU parent of an EU citizen has a derived right of residency in their home Member State under Article 20 TFEU, and secondly, if this right could be restricted based on public policy or security reasons.
The Court initially reaffirmed its position in Ruiz Zambrano, stating that Article 20 TFEU forbids national actions that effectively prevent EU citizens from meaningfully exercising their rights as citizens (para 26; citing Ruiz Zambrano para 42). Consequently, “a right of residence must … be granted to a third-country national who is a family member of [a minor Union citizen] since the effectiveness of citizenship of the Union would otherwise be undermined, if, as a consequence of refusal of such a right that citizen would be obliged in practice to leave the territory of the European Union as whole” (para 29). Thus, CS had a derived right of residence under Article 20 TFEU in her son’s home Member State.
Secondly, the Court held that such a derived residency right is generally subject to derogations based on public policy or security: “where the exclusion decision is founded on the existence of a genuine, present and sufficiently serious threat to the requirements of public policy or of public security … that decision could be consistent with EU law” (para 40). However, a deportation decision cannot be made “automatically on the basis solely of the criminal record of the person concerned” (para 41). Therefore, the relevant UK law mandating the Home Secretary to issue a deportation order for any non-national sentenced to 12 months or more imprisonment establishes “a systematic and automatic link between the criminal conviction of a person … and the expulsion measure” (para 44) and violates EU law. Instead, national courts must assess “the personal conduct of the individual concerned, the length and legality of his residence on the territory of the Member State concerned, the nature and gravity of the offence committed, the extent to which the person concerned is currently a danger to society, the age of the child at issue and his state of health, as well as his economic and family situation” (para 42).
Moreover, derogations based on ‘public policy’ or ‘public security’ necessitate a strict interpretation, and decisions are subject to review by EU institutions (para 37). Lastly, and crucially, the assessment of the individual’s situation must adhere to the principle of proportionality and the rights enshrined in the Charter of Fundamental Rights of the European Union (‘CFREU’), particularly Article 7 regarding the right to private and family life and Article 24(2) concerning the child’s best interests (paras 48 and 49).
C-165/14 Rendón Marín: facts and judgment
The facts in Rendón Marín closely resemble CS and raise essentially the same legal questions, likely explaining why the Court addressed these cases simultaneously and why Advocate General Szpunar issued a joint opinion. Rendón Marín involved a Colombian father residing in Spain with his Spanish son and Polish daughter. His request for residency was denied due to his criminal past. The key distinction is that Mr. Rendón Marín has a daughter who is an EU citizen residing in a host Member State and a son in his home Member State. This introduces a cross-border element in his daughter’s case, but not his son’s (For a more detailed discussion on the cross-border element, see C-200/02 Zhu and Chen, specifically para 19).
The Court’s ruling regarding the son’s situation – a Spanish national in Spain – mirrors the judgment in CS, with some paragraphs even sharing identical wording (both cases had the same rapporteur, Allan Rosas). Interestingly, the Court in Rendón Marín suggested the option of relocating to Poland, the Member State of Mr. Rendón Marín’s daughter’s nationality. Although the Court acknowledged the applicant’s argument about lacking ties to Poland, it didn’t delve into this. (See, in contrast, footnote 109 in Advocate General Szpunar’s Opinion in CS and Rendón Marín. For further information, refer to Advocate General Wathelet’s Opinion in NA, paras 112-117.) The Court merely stated that “it is for the referring court to check whether … the parent who is the sole carer of his children, may in fact enjoy the derived right to go with them to Poland and reside with them there” (para 79, citing Alokpa and Moudoulou paras 34-35), not dismissing the possibility that moving to Poland could be a solution if the father were deported from Spain.
Regarding the daughter’s legal standing, the Court ruled that, as a Polish national and EU citizen, she could invoke Article 21 TFEU and Directive 2004/38 to secure residency in Spain (para 44). Additionally, the Court determined that if the daughter meets the requirements outlined in Article 7(1) of Directive 2004/38 (possessing sufficient resources and comprehensive health insurance), her father, Mr. Rendón Marín, as her sole caretaker, cannot be refused a derived right of residence (para 53). While this derived residency right can be limited for public policy or security reasons (para 57), EU law forbids such restrictions on “grounds of a general, preventive nature” (para 61). Instead, national courts must conduct a comparable balancing act as described in CS (Rendón Marín, paras 59-66). Consequently, derogations from derived residency rights based on Article 20 TFEU and Article 21 TFEU likely have to satisfy the same criteria.
Comment
After a period of silence on this matter, the Court in these cases displays a willingness to further explore the scope of Ruiz Zambrano (The Court is expected to soon rule on another case, Chavez-Vilchez, which raises additional significant questions about the scope of that judgment). While seemingly narrowing the reach of Ruiz Zambrano in some respects, the two recent judgments can also be viewed as a reaffirmation of the initial judgment’s fundamental importance.
Cases subsequent to Ruiz Zambrano made it clear that Article 20 TFEU safeguards only a limited number of individuals in “very specific situations” (Rendón Marín para 74; CS para 29): essentially minors residing with their non-EU parents in their home Member State. While both CS and Rendón Marín confirm this, they also clarify that EU citizens covered by this ‘Ruiz Zambrano’ protection are afforded a very high level of safeguards. In fact, the protection against expulsion mirrors that of EU citizens (and their family members) who relocate to another Member State (the Court references concepts from the EU citizens’ Directive, its predecessors, and pertinent case law), although it remains unclear if the same procedural safeguards apply.
The Court does not preclude the possibility that, under “exceptional circumstances” (CS para 50), a parent deemed criminal and dangerous, posing a threat to a Member State’s public policy or security, could face deportation. This could potentially force their EU citizen children to leave EU territory, thereby depriving them of the genuine enjoyment of their EU citizenship rights. Nevertheless, the Court emphasizes a rigorous assessment before such a decision can be made.
Significantly, the Court cites the EU’s Charter of Fundamental Rights, stressing the necessity to consider Article 7 and Article 24(2) when making deportation decisions (see CS paras 36 and 48; Rendón Marín paras 66 and 85). In Dereci, the Court had previously stated that “if the referring court considers … that the situation of the applicants in the main proceedings is covered by European Union law, it must examine whether the refusal of their right of residence undermines the right to respect for private and family life provided for in Article 7 of the Charter” (Dereci, para 72). However, in that case, the Court concluded that those circumstances fell outside EU law’s scope, placing it beyond its jurisdiction to consider a Charter violation. In both CS and Rendón Marín, the applicants’ situations fell within the scope of EU law, making the Charter applicable.
It is noteworthy to compare the protection provided in C-135/08 Rottmann against the complete deprivation of EU citizenship status with the safeguards offered in CS and Rendón Marín against being deprived of the genuine enjoyment of EU citizenship rights through a parent’s removal to a non-EU country. While the Court in Rottmann held that decisions revoking nationality must respect the principle of proportionality (Rottmann, para 59), in CS and Rendón Marín it established specific criteria. Interestingly, the Rottmann test seems narrower than the one established in CS and Rendon Marin, even though the potential outcome in cases like Rottmann, i.e., statelessness, might have significantly graver implications for the individual involved.
In its CS decision, the Court cites the European Court of Human Rights (ECtHR) judgment in Jeunesse v the Netherlands. The EU Court states in paragraph 49:
“[A]ccount is to be taken of the child’s best interests when weighing up the interests involved. Particular attention must be paid to his age, his situation in the Member State concerned and the extent to which he is dependent on the parent (see, to this effect, ECtHR, 3 October 2014, Jeunesse v. the Netherlands, CE:ECHR:2014:1003JUD001273819, §118).”
Jeunesse v. the Netherlands, decided by the Strasbourg court in 2014, concerned a Surinamese national residing in the Netherlands with her Dutch husband and children without valid residency. The applicant contended that denying her residency violated her right to family life under Article 8 ECHR. The facts closely resemble Dereci, where the Court of Justice found that refusing residency didn’t contradict EU law. However, the ECtHR determined that Dutch authorities failed “to secure the applicant’s right to respect for her family life as projected by Article 8 of the Convention” (Jeunesse v the Netherlands, §122).
What does this reference signify? Primarily, the CJEU emphasizes the paramount importance of prioritizing the children’s best interests in such deportation cases. Secondly, it signals the Court’s commitment to upholding the fundamental rights of those protected under Ruiz Zambrano.
Lastly, the Court’s separate treatment of the daughter and son’s situations in Rendón Marín underscores its previous findings that an EU citizen in a host Member State must first rely on Article 21 TFEU before invoking Article 20. In the NA judgment, delivered at the end of June 2016, the Court held that the citizen and their non-EU caretaker’s potential residency right under secondary EU law must be examined first. Only in the absence of such a right can Article 20 TFEU be applied.
The NA case involved a Pakistani mother residing in the UK with her German children, facing residency denial. The Court ruled that because both the children and their non-EU mother had a right of residence in the host Member State under Article 12 of Regulation No. 1612/68 (paras 52-68) – which ensures children of current and former workers access to education in the host Member State, along with residency rights for them and their parents (see CJEU decisions in C-480/08 Teixeira and C-310/08 Ibrahim) – Article 20 TFEU didn’t confer residency in this instance. It’s clear that protection under Article 20 TFEU is a last resort. While the Court in NA and Rendón Marín doesn’t explicitly rule out Ruiz Zambrano protection within a host Member State, it now appears highly improbable. It seems this protection is solely granted by the home Member State.
Barnard & Peers: chapter 13
JHA4: chapter I:6
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