European citizens' third-country family members and community law

European Constitutional Law Review

Volumn 4, Issue 2, 2008, Pages 344-362

  Bierbach, Jeremy B ^a  

^a NONE

Author keywords

Akrich; Community national; Eind; Freedom of movement; Immigration; Jia; Legal residence; National citizenship; Singh; Third country family members; Union citizenship

Indexed keywords

EID: 51849083846     PISSN: 15740196     EISSN: 17445515     Source Type: Journal    
DOI: 10.1017/S1574019608003441     Document Type: Article

References (49)

1. ECJ 23 Sept. 2003, Case C-109/01, Secretary of State for the Home Department v. Hacene Akrich.
2. ECJ 7 July 1992, Case C-370/90, The Queen v. Immigration Appeal Tribunal et Surider Singh ex parte Secretary of State for Home Department.
3. Singh, supra n. 2, para. 25 and operative part. This phrase, to which italics have been added, implied that the spouse had to have a right of residence in the first country (presumably under national law) prior to going to the second country.
4. ECJ 9 Jan. 2007, Case C-1/05, Yunjing Jia v. Migrationsverket.
5. See the extensive discussion of Jia in the case note by Ben Olivier and Jan Herman Reestman, 3 EuConst (2007) p. 463-475.
6. Art. 1.1(r), Regulation on Aliens 2000 [Vreewdelingenbesluit2000].
7. Art. 3.74(d), Regulation on Aliens 2000. Note: Even before the additional restrictions were added, the income requirement for a Netherlands national wishing to exercise family reunification was already quite burdensome for many: E.g., proof of an employment contract valid for at least one year past the application date and paying a monthly salary equalling or exceeding the subsistence norm for the family as a whole. This new restriction on family formation entailed that in that case, the income had to amount to 120% of that subsistence norm.
8. Documentation of the Second Chamber of the Estates-General 2005-2006 [Tweede Kamerstukken 2003-2006], document number 29 700, sequence number 31.
9. In this letter, the Minister was quite accurately citing the conditions under which the right to family reunification under Community law would be void according to the ECJ's decisions in Akrich and Singh (marriages of convenience) and its settled case-law on the definition of a worker (no 'effective and genuine' exercise of treaty freedoms). See also recitation 28 of Directive 2004/38.
10. Council of State 13 July 2005, case number 200409356/1.
11. ECJ 26 Feb. 1991, Case C-292/89, The Queen v. Immigration Appeal Tribunal, ex parte Gustaff Desiderius Antonissen.
12. Council of State, supra n. 10, para. 2.6.
13. Cf. Besselink's identification of a multiplicity of citizenships and other personal statuses in the law of the Netherlands that '[call] to mind the situation in empires, both those of classic history and those of colonial times. Many classes of citizens existed, depending on where they happened to be born and or the territorial or habitual place of residence within the realm, and of course, on the degree of civilisation inferred from the place they happen to come from.' Leonard F.M. Besselink, 'Unequal Citizenship: Integration measures and Equality', Centre for Migration Law (Radboud University of Nijmegen), Sergio Carrera (ed.), Centre for European Policy Studies (CEPS), The Nexus between Immigration, Integration and Citizenship in the EU, Collectire Conference Volume, Challenge Papers (the Changing Landscape of European Liberty and Security), April 2006, p. 16.
14. Conversely, however, not all persons deriving rights of residence from Community law are Community subjects in the system of the national provisions: Specifically, third-country nationals who have been granted the status of long-term EC resident in accordance with Directive 2003/ 109/EC do not fall under this classification, but are defined separately in Art. 1 (p), Aliens Act 2000 (Vreemdelingenwet 2000). Ultimately, then, a 'Community subject' derives his or her right of residence from either being a Community national in the widely accepted sense or having a family relationship to one.
15. Council of State, supra n. 10, para. 2.5.5.
16. The UK insisted in its written observations that it had not granted Ms Eind a permit on the basis of Community law, but rather only granted her a permit on the basis of a policy choice made by the national legislature, i.e., on the basis of national law (point 28 of the Opinion). However, Mengozzi did not wish to devote any time to this issue, arguing that it was only relevant that the referring court had assumed that the permit had been granted based on Community law (point 30).
17. Jia, supra n. 4, para. 33.
18. See Olivier and Reestman, supra n. 5, p. 471.
19. Jia, supra n. 4, para. 31.
20. From P. Rodière, 'Libre circulation des personnes et citoyenneté européenne dans la jurisprudence de la Cour de justice', in Revue trimestrielle de droit européen, 2006, vol. 42(1), p. 163 'and, more particularly' p. 164.
21. ECJ 20 Sept. 2001, C-184/99, Grzelczyk v. Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve.
22. Cf. point 31 of Grzelczyk, supra n. 21. Note: We do not see cause to attach any significance to the fact that this formula was rendered 'intended to be' in Eind and 'destined to be' in Grzekzyk. In Dutch, the original language of Eind, the same phrase is used ('dient te zijn) as is used in the Dutch translation of Grzelczyk (in which the original French phrase was 'a vocation à être ).
23. Admittedly, Mengozzi was somewhat obliged to analyse treaty freedoms and citizenship as unrelated issues, in light of the way the referring court had asked very separate questions about each one.
24. Point 75, Opinion in Grzelczyk, supra n. 21.
25. ECJ 24 Nov. 19 96, C-274/96, Criminal proceedings against Bickel and Franz.
26. ECJ 30 March 1993, C-168/91, Konstantinidis v. Stadt Altensteig.
27. ECJ 11 July 2002, C-60/00, Mary Carpenter v. Secretary of State for the Home Department.
28. ECJ 25 July 2002, C-459/99, Mouvement contre le racisme, l'antisémitisme et la xénophobie ASBL (MRAX) v. État belge.
29. Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/ 35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC.
30. ECJ 17 Sept. 2002, C-413/99, Baumbast, R v. Secretary of State for the Home Department.
31. ECJ 19 Oct. 2004, C-200/02, Kunqian Catherine Zhu, Man Lavette Chen v. Secretary of State for the Home Department.
32. This line has been forcefully continued in a judgment made at the time of writing of this article, ECJ 10 April 2008, C-398/06, Commission v. The Netherlands.
33. It was noted by A-G Geelhoed - in an article that he wrote around the same time that he wrote his opinion in Jia - that cultural barriers are still the greatest obstacle to the exercise of freedom of employment for all but the uppermost and lowermost segments of the working population. See p. 36 of L.A. Geelhoed, 'De vrijheid van personenverkeer en de interne situatie' [The freedom of personal movement and the internal situation], in E. Manunza and L. Senden (eds.), De EU: De interstatelijBheid voorbij? [The EU: bgond its interstate nature?] (Nijmegen, Wolf Legal Publishers 2006), p. 31-48.
34. Even the Netherlands allows alien Community nationals resident on its territory to exercise the right of family reunification under the relaxed MRAX doctrine, as Minister Verdonk noted in her letter to Parliament. However, Belgium has not been confronted with a Netherlands route' because Belgium allows its own nationals to exercise the right to family reunification under the same conditions as alien Community nationals. See Kristien Vanvoorden, 'Betekenen de arresten Jia en Eind het einde van de België-route?' [Do the decisions Jia and Eind mean the end of the Belgium route?] In Migrantenrecht 3, 2008 (May 2008), p. 84-93, on p. 92.
35. B.F. Vermeulen, 'Akrich, Commissie/Spanje,Jia: Nog steeds geen Eind aan de onduidelijkheid over eerste toelating van derdelanders/gezinsleden van EU-migranten' [... Still no 'End to the uncertainty about first admission of third-country family members of EU migrants], in Migration Law and Sociology of Law, Collected Essays in honour of Kees Groenendijk (Nijmegen, Wolf Legal Publishers 2008), p. 495-502.
36. See Olivier and Reestman, supra n. 5, p. 471-472.
37. Vermeulen criticises the extent to which the ECJ may have gone even farther in construing a positive obligation from Art. 8 ECHR than the European Court of Human Rights has: supra n. 35, p. 502.
38. President of the ECJ C-127/08, Order of 17 April 2008, Blaise Baheten Metock et al. v. Ireland, point 14.
39. ECJ 13 Feb. 1985, C-267/83, Aissatou Diatta v. Land Berlin.
40. Supra n. 8, final para.
41. See Olivier and Reestman's discussion of the appropriate legal basis for harmonisation of the legal residence requirement, supra n. 5, p. 472-473.
42. Supra n. 1, points 53 and 54.
43. ECJ 4 Dec. 1974, C-41/74, Yvonne van Duyn, v. Home Office, point 22.
44. Art. 17(1) EC.
45. Art. 1(12) Treaty of Lisbon, OJ 17.12.2007.
46. See Dora Kostakopoulou, 'European Union Citizenship: Writing the Future', European Law Journal, Vol. 13, No. 5, Sept. 2007, p. 623-646.
47. D.C. Turack, The Passportin International Law (Lexington [Massachusetts], Heath 1972) p. 67-69.
48. Kostakopoulou, supra n. 46, p. 633.
49. For instance, an example of yet another reading of the formula can be found in immigration case-law in the Netherlands concerning appeals to the Family Reunification Directive (2003/86/EC) by persons of dual Netherlands and third-country nationality. Such persons, when seeking rights of residence for third-country family members, are denied applicability of the Directive with the consideration that the Directive does not apply to Union citizens, and that since 'according to the settled case-law of the ECJ, Union citizenship is the primary quality', the third-country nationality of the dual citizen is irrelevant. Quotation cited from point 2.27, judgment of the immigration chamber of the District Court of Utrecht, 1 April 2008, case number AWB 07/33161, published in Jurisprudentie Vreemdelingenrecht [Immigration Case-Law] 2008/238.