European citizens' third-country family members and community law: Court of Justice of the European Communities

European Constitutional Law Review

Volumn 3, Issue 3, 2007, Pages 463-475

  Olivier, Ben ^a   Reestman, Jan Herman ^a  

^a UNIVERSITY OF AMSTERDAM   (Netherlands)

Author keywords

European convention on human rights; European court of justice; Family reunification; National reunification policies; National sovereignty; Right to family reunification; Third country nationals; Union citizens

Indexed keywords

EID: 37449034238     PISSN: 15740196     EISSN: 17445515     Source Type: Journal    
DOI: 10.1017/S1574019607004634     Document Type: Article

References (26)

1. Regulation 1612/68 of 15 Oct. 1968 'on freedom of movement for workers' (Art. 10), Directive 73/148 of 21 May 1973 'on the abolition of restrictions on movement and residence with regard to establishment and the provision of services' (Art. 1), as well as, under certain conditions, the Directives on free movement of non-economically active European citizens, Council Directive 90/364 on the right of residence (Art. 1), Council Directive 90/365/EEC of 28 June 1990 on the right of residence for employees and self-employed persons who have ceased their occupational activity (Art. 1) and Council Directive 93/96/EEC of 29 Oct. 1993 on the right of residence for students (Art. 2).
2. Case C-459/99, ECR 2002 I-06591.
3. Case C-157/03, ECR 2005 I-2911.
4. Art. 10 Directive 68/360; Art. 8 Directive 73/148/EC, and Art. 27 Directive 2004/38/EC.
5. On the basis of Regulation 539/2001/EC or, where appropriate, national law.
6. Case C-109/01, ECR 2003 I-9607.
7. ECJ 7 July 1992, Case C-370/90, The Queen v. Immigration Appeal Tribunal et Surinder Singh ex parte Secretary of State for Home Department, ECR 1992 I-04265.
8. Philipp Tschäpe, 'EuGH: Rechte von mit Unionsbürger verheiratetem illegalen Drittstaatsangehörigen', Europäische Zeitschrift für Wirtschaftsrecht (2003) p. 752-758;
9. H. Oosterom-Staples, 'Wanneer is er sprake van misbruik van her recht op vrij verkeer van personen? Her arrest Akrich: Meet vragen dan antwoorden' [When is there question of abuse of the right of free movement of persons? The Akrich ruling: More questions than answers], NTER [Netherlands Journal of European Law] (2004) p. 77-83;
10. Richard Plender, 'Quo vadis? Nouvelle orientation des règles sur la libre circulation des personnes suivant l'affaire Akrich', Cahiers de droit européen (2004) p. 261-288;
11. Eleanor Spaventa, 'Case C-109/01, Secretary of State for the Home Department v. H. Akrich', 42 CML Rev. (2005) p. 225-239.
12. Spaventa, supra n. 8, p. 233.
13. Raad van State 13 July 2005, case number 200409356/1 (point 28).
14. Case C-291/05 (Eind), still pending.
15. Gavin Barrett, 'Family Matters: European Community Law and Third-Country Family Members', 40 CML Rev. (2003) p. 369-421 at p. 379-380.
16. Directive 2003/86/EC on family reunification is not applicable to family members of European citizens (Art. 3(3)).
17. ECJ 18 June 1987, Case 316/85, Centre public d'aide sociale de Courcelles v. Marie-Christine Lebon, ECR 1987 2811.
18. The Dutch translation of the judgment speaks in point 37 not of 'the state of origin' of the family member, but of the 'member state of origin' (lidstaat), which, of course, completely changes the picture and makes the answer inapplicable to the case at hand, as Ms Jia comes from China, and not from another member state. This is a translation mistake (compare the German and French versions).
19. We think that the Court's emphasis on the fact that Ms Jia was lawfully in Sweden is only meant to distinguish this case from Akrich, and not from the case in which a third country national which applies for family reunification has never set foot on Union territory. In our view, there is in this respect no fundamental difference between those third country family members who are legally residing on Union territory on account of a tourist visa and those who have never set foot on European soil. At least under the regime of Directive 2004/38/EC, such difference would make no sense, because every third country family member of a Union citizen has in principle the right to enter the member states for a period of three months (Arts. 5 and 6).
20. P. Boeles, case-note in Jurisprudentie Vreemdelingenrecht [Case-law on Immigration law] 2007/31.
21. See also Editorial, 3 EuConst (2007) p. 1 at p. 3.
22. Council Decision 2004/927/EC of 22 Dec. 2004 providing for certain areas covered by Title IV of Part Three of the Treaty establishing the European Community to be governed by the procedure laid down in Art. 251 of that Treaty, is not applicable to Art. 63(3)(a) EC.
23. Matthew Welsmore and Peter Statup, 'Case C-1-05, Yunjing Jia v. Migrationsverket, Judgement of the Court (Grand Chamber), 9 Jan. 2007', 44 CML Rev. (2007) p. 787-801 at p. 797.
24. See supra n. 11.
25. See also Art. 4 of Council resolution of 4 Dec. 1997 on measures to be adopted on the combating of marriages of convenience, OJ [1997] C 382/1: 'Should the authorities competent under national law find the marriage to be one of convenience, the residence permit or authority to reside granted on the basis of the third-country national's marriage shall as a general mle be with-drawn, revoked or not renewed.'
26. Cf. Spaventa, supra n. 8, p. 236-237.