Chiara Berneri, Lecturer at BPP Law School

This article examines when an EU citizen residing in their home country can assert rights under EU law for family members to join them. This analysis stems from the Court of Justice of the European Union (CJEU) addressing judgments in the Surinder Singh and Carpenter cases. These cases involve family reunification for EU citizens who return to their home country after residing in another Member State and for EU citizens who provide services in another Member State.

Facts of the cases

On December 12, 2013, Advocate-General (A.G.) Sharpston presented her opinion on the Joined Cases of O and S (Cases C-456/12 and C-457/12). The first case involves two families, O and B. In 2007, O, a third-country national, and their sponsor, a Dutch citizen, established residency in Spain, documented by a residence permit valid until September 2014. However, sponsor O returned to the Netherlands after two months due to a lack of job opportunities but frequently traveled back to Spain. Although registered as residing with the sponsor in the Netherlands since July 2010, O’s application for a lawful residence document was denied.

The second family, B, consists of a Moroccan national and their Dutch sponsor. After living in the Netherlands since 2002, B was sentenced to imprisonment for using a false passport. To circumvent this, they moved to Belgium, where the sponsor rented an apartment. However, the sponsor returned to the Netherlands due to job scarcity but visited B regularly. Despite their marriage in Morocco in 2007 and the Netherlands lifting B’s undesirable status in 2009, their application for a lawful residence document was rejected.

The second case also involves two families, S and G. S, a Ukrainian national, is the caregiver for her son-in-law’s child in the Netherlands. Her son-in-law, a Dutch citizen, works for a Dutch company but spends a significant portion of his time working in Belgium. Despite this, S’s application for lawful residence in the Netherlands was denied.

G, a Peruvian national, is married to a Dutch citizen residing in the Netherlands who commutes daily to Belgium for work. G’s application for lawful residence in the Netherlands was also rejected.

In each case, a third-country national seeks family reunification with a Dutch citizen residing in the Netherlands while exercising free movement rights within the EU. The Dutch Council of State seeks clarification on whether the Dutch sponsors’ movement within the EU is sufficient to establish EU law applicability and grant derived residency rights for their family members.

The Opinion

A.G. Sharpston’s opinion aims to clarify if refusing lawful residence to these third-country nationals would restrict their sponsors’ right to free movement within the EU. It also seeks to define the parameters for derived residency rights for third-country family members in the home Member State when an EU citizen exercises free movement rights without necessarily exercising full residency rights in another Member State.

Regarding derived residency rights, the A.G. explains that this concept, originally linked to economic freedom of movement, evolved with the introduction of EU citizenship. Unlike previously, under Directive 2004/38/EC (the “citizens’ Directive”), having a derived right of residence is no longer contingent upon demonstrating potential hardships an EU citizen might face if their family members were denied residence. The A.G. posits that since derived residency rights only apply when necessary to ensure EU citizens can effectively exercise their free movement and residency rights, the CJEU should consider whether the EU citizen has exercised or is exercising such rights and whether refusing residency to their family members would impede those rights.

A.G. Sharpston differentiates this case from Zambrano, McCarthy, and Dereci, stating that in this instance, all applicants utilized their rights of free movement and/or residence in another Member State. The A.G. highlights that the CJEU, particularly in Dereci, suggests three grounds for granting derivative family rights under EU law: respect for private and family life (Art. 7 of the Charter), free movement and residence of EU citizens (Art. 21 TFEU), and ensuring the genuine enjoyment of the rights conferred upon an EU citizen (Art. 20 TFEU).

However, the A.G. proposes a different approach. Since the Charter applies only within the scope of EU law, the right to respect for private and family rights is not an independent basis for granting residency rights. It only comes into play when the situation concerning EU citizens falls under EU law. Consequently, the A.G. suggests that the CJEU provide clear guidelines to national courts for determining when an EU right, interpreted in line with the Charter, is triggered. Based on these guidelines, national courts should then determine whether applying the EU right to a specific case precludes the application of a national measure.

Therefore, the A.G. argues that the citizens’ Directive does not apply in these cases, particularly because it protects movement between Member States where the EU citizen is not a national and movement from their home Member State to another. The current cases seem to fall under the third scenario not covered by the Directive: movement from another Member State back to their home Member State.

Instead, the A.G. suggests evaluating the applicants’ position under the EU treaties, particularly Art. 21 TFEU, which prevents Member States from restricting EU citizens’ rights to free movement and residence within the EU, including those married to third-country nationals. Restricting a couple from residing in the EU citizen’s home Member State could force them to separate, live outside the EU, or move to another Member State. This would either strip the EU citizen of their rights, as EU citizenship holds limited weight outside the EU, or compel further movement, which contradicts the EU’s goal of facilitating free movement, not imposing it. Therefore, an EU citizen’s home Member State cannot treat them less favorably upon their return than they were treated in the host Member State. The A.G. argues that the initial movement “passports” the rights under EU law, which remain with the EU citizen upon returning home, citing prior CJEU case-law (Eind and Surinder Singh).

A.G. Sharpston then delves into defining “residence.” Noting the absence of a clear definition in secondary and primary measures, she contends that residence doesn’t necessitate constant physical presence in a single Member State. An EU citizen establishing residency in another Member State should not preclude them from maintaining some form of residence elsewhere, a rule seemingly implied in the citizens’ Directive.

The A.G. disagrees that an EU citizen must have resided for three months in the host Member State to claim derived family reunification rights upon return. While the duration of stay is relevant, it shouldn’t be the sole determinant of whether an EU citizen has exercised residency rights, thus impacting their ability to be joined by family members.

Regarding EU citizens moving to another Member State without establishing residency, the A.G. builds upon the Carpenter case, where providing services in another Member State was deemed sufficient for a British publisher to invoke the right to be joined by their spouse under EU law. The opinion emphasizes that Carpenter’s reasoning regarding the provision of services applies to active exercise of movement rights without residency as a worker and passive exercise of the right to receive services.

The A.G. asserts that exercising free movement rights for work-related activities may necessitate an EU citizen being joined by their family in their home Member State. There is no distinction between an EU citizen working for an employer in another Member State while residing in their home Member State and an EU citizen working for an employer in their home Member State but traveling to other Member States for work. In both cases, crossing borders is necessary to maintain employment. The question becomes whether restricting the presence of the third-country national in the home Member State would hinder the EU citizen’s ability to work across borders.

The A.G. suggests that the third-country national’s ability to claim such a right depends on: the strength of family ties with the EU citizen, the EU citizen’s exercise of free movement rights, and the causal link between the third-country national’s residence and the EU citizen’s exercise of free movement rights.

Regarding the right to receive services, the A.G. acknowledges that an EU citizen moving to another Member State for this purpose falls under EU law. However, while this constitutes exercising an economic freedom, it typically doesn’t create the kind of dependency on family members that would necessitate their presence. Nevertheless, the A.G. acknowledges potential exceptions, such as illness.

Finally, the A.G. considers an EU citizen moving to another Member State solely for family reunification and concludes that national measures hindering this choice would violate Art. 21(1) TFEU.

After outlining the conditions governing derived residency rights, A.G. Sharpston analyzes the cases of O, B, S, and G. In O’s case, the A.G. finds that sponsor O should not face disadvantages upon returning to the Netherlands and that O should have lawful residency rights. B, however, does not seem to qualify under the citizens’ Directive or Treaty provisions but could still claim derived residency rights if their decision to join their sponsor was based on their right to a family life.

In S’s case, sponsor S exercises free movement rights for work, and a family connection exists, as they provide material support for S. To establish a causal link, the referring court should determine whether denying S residency would compel sponsor S to seek alternative employment that doesn’t involve exercising free movement rights or prompt them to relocate with their family, including S, to another Member State.

In G’s case, sponsor G, a frontier worker, is married to G. As spouses, they are considered economically and emotionally dependent. Refusing G residency in the Netherlands might force sponsor G to relocate within the EU, restricting their choice of being a frontier worker, an economic freedom safeguarded by Art. 45 TFEU.

Comments

A.G. Sharpston’s opinion is significant because it clarifies the conditions under which third-country nationals, family members of EU citizens residing in their home Member State while exercising free movement rights, can claim derived residency rights in that Member State under EU law. This is crucial, as family reunification for EU citizens residing in their own Member State is generally subject to national law, often resulting in stricter regulations.

The A.G. defines “residence” practically, recognizing that EU citizens may not necessarily have one fixed place of residence. They can reside in their home Member State while having their primary interests in another, retaining the right to claim derived rights for their third-country national family members in their origin country if they meet specific conditions. These conditions include meeting the definition of “family member” and demonstrating a causal link between the third-country national’s residence and the EU citizen’s exercise of free movement rights.

Expanding on Carpenter, the A.G. argues that EU citizens can also claim derived rights for their third-country national family members in their home Member State if the exercise of free movement rights is significantly linked to their family members’ situation. However, merely moving to another Member State to receive services, although falling under EU law, typically wouldn’t activate derived family reunification rights.

A.G. Sharpston adeptly navigates seemingly national law issues and offers a legally sound solution. If adopted by the CJEU, this approach could broaden the protection of family life rights for EU citizens officially residing in their home Member State. The hope is that the Court will either embrace this analysis or offer structured guidance for addressing similar cases.

[Update: the CJEU ruled in this case in March 2014. See discussion here.]

Barnard & Peers: chapter 13