Chiara Berneri, Lecturer at BPP Law School

Typically, EU law doesn’t grant residency rights to non-EU family members of EU citizens residing in their own home country. However, recent court rulings have clarified two key exceptions to this rule, albeit with unexpected outcomes. These rulings stem from Advocate-General Sharpston’s December 2013 opinion, as discussed in a prior blog entry.

The O and B case: Revisiting Singh

In 2007, O, a non-EU citizen, and their Dutch partner, sponsor O, moved to Spain. Sponsor O returned to the Netherlands after two months due to job scarcity, but frequently flew back to Spain. By 2010, O was registered as living with sponsor O in the Netherlands, but their residency request was denied.

Similarly, B, a Moroccan national, resided in the Netherlands with their Dutch partner, sponsor B, since 2002. Following a criminal conviction, B moved to Belgium, with sponsor B visiting regularly. They married in 2007, and in 2009, B’s ban from the Netherlands was lifted. Their subsequent residency application in the Netherlands was rejected.

The Court’s Decision

The core issue was whether EU law permits a Member State to deny residency to a non-EU family member of a citizen returning after living in another Member State. The Court clarified that EU law on citizenship doesn’t grant independent rights to non-EU citizens; their rights are derived from the EU citizen’s freedom of movement.

Referencing Directive 2004/38, the court emphasized its focus on EU citizens’ movement and residence rights with family in other Member States. As countries cannot deny entry to their own citizens, the directive solely governs EU citizens residing in a Member State other than their own. Thus, it doesn’t grant automatic residency to non-EU family members unless the EU citizen has resided in another Member State.

The Court then explored whether residency rights could stem from Article 21(1) TFEU, citing the principle that denying residency to a returning EU citizen’s non-EU family could discourage them from exercising their freedom of movement. Previous rulings in the Singh and Eind cases supported this, establishing that such denials hinder EU citizens from leaving their home country.

Applying the Singh and Eind precedents, the court determined that granting derived residency rights in such cases addresses the same obstacles faced by workers moving to another Member State. Significantly, the Court stipulated that conditions for non-EU family members shouldn’t be stricter than those outlined in Directive 2004/38, which should be applied analogously. This led to a crucial aspect of the ruling: the concept of “sufficiently genuine” residence.

The Court argued that an impediment to free movement only arises when the EU citizen’s residence in the host country is “sufficiently genuine.” Drawing from Directive 2004/38, the Court clarified that residency under Article 6(1) (up to 3 months) doesn’t signify intent to settle. Therefore, refusing residency to the non-EU family member in such cases wouldn’t deter the EU citizen’s movement. However, residing beyond three months under Article 7(1) and (2) implies a potential deterrent effect, as family life established in the host country should be preserved upon return.

This logic applies even more strongly to permanent residency granted under Article 16(1) and (2). Notably, the Court left the assessment of “genuine residence” to the referring court, emphasizing that EU law shouldn’t be misconstrued to permit exploitative practices.

The S and G case: Interpreting Carpenter

S, a Ukrainian national, cared for her grandchild in the Netherlands while her Dutch son-in-law, sponsor S, split his work between the Netherlands and Belgium. S’s residency application was rejected.

Similarly, G, a Peruvian married to a Dutch citizen (sponsor G), was denied residency despite her spouse working in Belgium and commuting daily.

The Court’s Decision

The primary question in this case was whether EU law prevents a Member State from denying family residency when the EU sponsor, a national of that Member State, lives there but works in another. The Court reiterated that Directive 2004/38 doesn’t confer automatic residency in such scenarios.

Considering the relevance of Article 45 TFEU, the Court addressed the scope of the Carpenter case. In Carpenter, the Court had ruled that an EU citizen providing services in another Member State could invoke Article 56 TFEU (free movement of services) to secure residency for their non-EU family member in their home country. The court determined that the Carpenter principle applies to Article 45 TFEU and covers situations like those of S and G.

Reiterating the “deterrence approach,” the court stated that derived residency rights are granted because refusing them might hinder the exercise of fundamental EU freedoms. They concluded that the national court must decide if granting such rights is necessary to guarantee the EU citizen’s effective exercise of their rights under Article 45 TFEU. However, they added, the desire for a child to be cared for by their grandparent isn’t sufficient grounds for a derived right of residence.

Observations

These rulings have sparked debate, particularly in comparison to Advocate-General Sharpston’s opinion. Regarding the O and B case, the court diverged from Sharpston’s view that the duration of residence in the host Member State shouldn’t dictate eligibility for derived residence rights. Instead, Sharpston suggested focusing on why the EU citizen and their family resided separately. She argued that denying residency based solely on the family living apart could infringe upon an EU citizen’s right to family life, unless the couple no longer wished to live together.

While the Court’s time-based criteria offers clarity, applying Sharpston’s approach might encompass a broader range of situations. For instance, based on their residency duration, both O and B might be denied residency in the Netherlands. Conversely, Sharpston’s test might grant O residency (with conditions) while potentially excluding B due to being a partner, not a spouse, and thus falling outside Directive 2004/38’s scope.

The Court’s stance in O and B echoes recent UK regulations demanding British citizens to demonstrate a shift in their life’s center to another Member State to secure residency for non-EU family upon return. However, the ruling isn’t as stringent as these regulations, which require a complete life transfer, as opposed to simply meeting the residency duration outlined in Directive 2004/38. Still, the emphasis on residing in the host Member State suggests an alignment with these stricter regulations and a departure from Sharpston’s proposal.

Furthermore, the Court cautioned against exploiting EU law to gain an unfair advantage, implying that future rulings might only grant non-EU family members residency when the EU citizen’s relocation wasn’t motivated by taking advantage of more lenient family reunification policies. This contradicts Sharpston’s argument, which framed the issue as one of free choice for the EU citizen, and considered any measure compelling movement as contrary to Article 21(1) TFEU.

Regarding the S and G case, the Court adopted a stricter position than Advocate-General Sharpston. For instance, Sharpston recommended considering whether denying residency to S would compel Sponsor S to seek alternative employment or relocate their entire family, including S, to another Member State. Conversely, the Court simply stated that a child’s need for care from their grandmother doesn’t justify granting the grandmother derived residency. This assertion, seemingly made without concrete evidence, raises concerns about potential bias against certain family relations.

The Court’s approach contradicts its stance in the Carpenter case, where it acknowledged the detrimental impact of separating Mr. and Mrs. Carpenter on their family life and Mr. Carpenter’s ability to work. The Court hasn’t clarified the basis for its differing opinions in these cases, leading to uncertainty regarding the criteria for granting residency rights to non-EU family members.

Unlike O and B, the Court in S and G didn’t apply Directive 2004/38 by analogy, opting instead for Article 45 TFEU. This implies that non-EU family members in similar situations might not benefit from the Directive’s provisions on employment, social benefits, etc. This raises questions about the conditions under which S and G could reside in the Netherlands, should their applications be approved (which seems unlikely, especially for S). It remains unclear whether they would receive permanent residency or face limitations tied to the grandchild’s needs.

Overall, the Court appears to be taking a more restrictive approach to cases concerning residency rights for non-EU family members of EU citizens. This contrasts with the more lenient direction observed after the Metock case. It remains to be seen whether future rulings will uphold this stricter trend.

Barnard & Peers: chapter 13