Family reunification rights of (Migrant) union citizens: Towards a more liberal approach

European Law Journal

Volumn 15, Issue 5, 2009, Pages 634-653

  Tryfonidou, Alina ^a  

^a UNIVERSITY OF LEICESTER   (United Kingdom)

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EID: 69249183453     PISSN: 13515993     EISSN: 14680386     Source Type: Journal    
DOI: 10.1111/j.1468-0386.2009.00482.x     Document Type: Article

References (89)

1. Joined Cases 35-36/82, Morson and Jhanjan v Netherlands [1982] ECR 3723.
2. Case C-109/01, Secretary of State for the Home Department v Akrich [2003] ECR I-9607.
3. Case C-60/00, Carpenter v Secretary of State for the Home Department [2002] ECR I-6279.
4. Case C-1/05, Yunying Jia v Migrationsverket [2007] ECR I-1.
5. In this article, the phrase 'economic fundamental freedoms' will be used to refer to the free movement of economically active persons provisions of the Treaty (ie Articles 39, 43 and 49 EC), and not to Article 18 EC, which governs the free movement of economically inactive Union citizens and which is another fundamental freedom. The phrase 'market freedoms' will be used as a synonym of 'economic fundamental freedoms' and, thus, as referring, also, to Articles 39, 43 and 49 EC.
6. The categories of family members that have an automatic right to accompany or join the migrant in the host Member State can be found in Article 2(2) of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, [2004] OJ L158/77.
7. Case C-291/05, Minister voor Vreemdelingenzaken en Integratie v R. N. G. Eind, [2007] ECR I-10719.
8. Case C-127/08, Metock and Others v Minister for Justice, Equality and Law Reform, Judgment of 25 July 2008, not yet reported.
9. Case C-551/07, Sahin v Bundesminister für Inneres, Order of 19 December 2008, not yet reported.
10. G. Barrett, 'Family Matters: European Community Law and Third-Country Family Members', (2003) 40 Common Market Law Review 369, at 375-376. This was also mentioned by the Court in Carpenter, n 3 supra, para 38.
11. Case C-370/90, R v Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department [1992] ECR I-4265.
12. As Advocate General Tesauro has very rightly observed in his Opinion in Singh, 'the simple exercise of the right of free movement within the Community is not in itself sufficient to bring a particular set of circumstances within the scope of Community law; there must be some connecting factor between the exercise of the right of free movement and the right relied on by the individual' (para 5 of the Advocate's General Opinion in Singh, ibid).
13. Case 175/78, R v Saunders [1979] ECR 1129, para 11.
14. See paras 53-57 of the Opinion of Advocate General Stix-Hackl in Carpenter, n 3 supra. For a detailed study on the problem of reverse discrimination in EC law, see A. Tryfonidou, Reverse Discrimination in EC Law (Kluwer Law International, 2009).
15. Paragraphs 26 and 33 of the Opinion of Advocate General Geelhoed in Jia, n 4 supra. For a recent study on reverse discrimination in the context of family reunification in the EC, see A. Walter, Reverse Discrimination and Family Reunification (Wolf Legal Publishers, 2008).
16. Although Akrich is considered to be a rationalising judgment as regards the Court's approach towards the bestowal of family reunification rights, nonetheless, the same does not hold true for the Court's approach in that judgment towards the scope of application of EC human rights protection. There the Court, after finding that Mr Akrich did not derive from EC law a right to family reunification in the UK, went on to note that when the relevant Member State would be making its assessment regarding the issue of whether family reunification rights should be granted under national law, it should have regard to the need to respect for the right to family life of those persons which is 'among the fundamental rights which mellip; are protected in the Community legal order' (Akrich, n 2 supra, para 58). In this way, the Court extended the scope of application of human rights that are protected as general principles of EC law to situations that fall outside the scope of EC law. For a criticism of this part of the Court's judgment in Akrich, see C. Schiltz, 'Akrich: A Clear Delimitation without Limits', (2005) 12(3) Maastricht Journal of European and Comparative Law 241, at 250-251.
17. Akrich, n 2 supra, paras 50-54.
18. Carpenter, n 3 supra, para 39.
19. See A. Tryfonidou, 'Jia or "Carpenter II": The edge of reason', (2007) 32 European Law review 908, at 914-915.
20. For commentators characterising the Court's reasoning in Carpenter as 'artificial', see S. Acierno, 'The Carpenter Judgment: Fundamental Rights and the Limits of the Community Legal Order', (2003) 28(3) European Law Review 398; N. Reich and S. Harbacevica, 'Citizenship and Family on Trial: A Fairly Optimistic Overview of Recent Court Practice with regard to Free Movement of Persons', (2003) 40 Common Market Law Review 615, at 628. For an excellent explanation of why there was not a real link with EC law in Carpenter, see L. Woods, Free Movement of Goods and Services within the European Community (Ashgate, 2004), at 224.
21. N. Foster, 'Family and Welfare Rights in Europe: The Impact of Recent European Court of Justice Decisions in the Area of the Free Movement of Persons', (2003) 25(3) Journal of Social Welfare and Family Law 291, at 297.
22. See the Opinion of Advocate General Geelhoed in Jia, n 4 supra, paras 70-71.
23. Other cases which can be included in this group are Case C-459/99, MRAX v État belge [2002] ECR I-6591 and Case C-157/03, Commission v Spain [2005] ECR I-2911.
24. For an analysis the problems that are caused as a result of the application of the Court's 'liberal approach', see A. Tryfonidou, 'Reverse Discrimination in Purely Internal Situations: An Incongruity in a Citizens' Europe', (2008) 35(1) Legal Issues of Economic Integration 43, at 52-53.
25. Paragraphs 19-20 of the judgment in Singh, n 11 supra.
26. See M. Poiares Maduro, 'The Scope of European Remedies: The Case of Purely Internal Situations and Reverse Discrimination', in C. Kilpatrick, T. Novitz and P. Skidmore (eds), The Future of European Remedies (Hart, 2000), at 124-125; N. Nic Shuibhne, 'Free Movement of Persons and the Wholly Internal Rule: Time to Move on?', (2002) 39 Common Market Law Review 731, at 744-748; Woods, op cit n 20 supra, at 225. This appears also to be the view of Advocate General Stix-Hackl in her Opinion in Carpenter, n 3 supra, para 66.
27. See, eg, Barrett, op cit n 10 supra, at 379. White appears to be of the view that the Court's judgment can accommodate both interpretations - see R. C. A. White, 'A Fresh Look at Reverse Discrimination', (1993) 18(6) European Law Review 527.
28. This was also the view of Advocate General Tesauro in his Opinion in the Singh case (n 11 supra). Paragraph 21 of the judgment in Singh may also be used in support of this interpretation.
29. Akrich, n 2 supra, paras 47-48. See Schiltz, op cit n 16 supra, at 247.
30. Regulation 1612/68/EEC on freedom of movement for workers within the Community, [1968] OJ L257/2.
31. Eind, n 7 supra, para 32.
32. ibid, para 41.
33. ibid, para 43.
34. ibid, para 44.
35. Metock, n 8 supra, para 49.
36. ibid, paras 50-54.
37. ibid, para 58.
38. ibid, para 60.
39. ibid.
40. ibid, para 62.
41. ibid, para 63.
42. ibid, para 64. It is, also, quite interesting to note that the Court itself argued that the requirement of prior lawful residence for family members of migrant Union citizens would lead to reverse discrimination against Union citizens when compared to third-country nationals falling within the scope of Directive 2003/86 on the right to family reunification, [2003] OJ L251/12, since that piece of legislation requires Member States 'to authorise the entry and residence of the spouse of a national of a non-member country lawfully resident in its territory where the spouse is not already lawfully resident in another Member State' (para 69 of Metock).
43. Metock, ibid, para 93.
44. ibid, para 89.
45. The only difference of substance is thatMr Sahin enjoyed a temporary right of residence in Austria under the laws on asylum. However, since this is not important for our purposes, it will not be discussed further in the main text.
46. Eind, n 7 supra, para 33.
47. In his Opinion in the Eind case, ibid, Advocate General Mengozzi also adopted 'Interpretation I' of Singh - see, in particular, para 97 of the Opinion. It should be noted that although the Advocate General applied the 'deterrence principle' in the same way as the Court (see paras 101-103 of the Opinion), nonetheless, he complemented his reasoning by looking at alternative ways for bringing the situation within the scope of EC law: A) he examined whether Rachel could derive from EC law a right of residence in the Netherlands as a family member of a job-seeker; and b) he enquired whether Rachel could, in the alternative, derive a right of residence in the Netherlands as a family member of a migrant Union citizen falling within the scope of Article 18 EC read in conjunction with Directive 90/364 on the right of residence, [1990] OJ L180/26. Perhaps the Advocate General was suspecting that the Court might prefer to apply its 'moderate approach' in the case and require a real link between the refusal of the grant of family reunification rights and the exercise of an inter-State economic activity and, therefore, in such an instance, the free movement of workers provisions and the 'deterrence principle' would be of no use to the Einds.
48. Eind, ibid, paras 41-44.
49. This is more directly expressed in the Opinion of Advocate General Mengozzi in ibid, paras 42-46.
50. It is not clear whether the imposition of such a condition of prior lawful residence would, also, violate primary legislation (eg Article 39 EC) applied to situations which do not fall within the scope of Directive 2004/38, n 6 supra, ie situations which fall within the scope of the Treaty provisions on the free movement of persons but which do not fall within the scope of Directive 2004/38 because they do not involve a Union citizen moving to a Member State other than that of his nationality (see Art 3(1) of the 2004 Directive).
51. For another commentator advocating this view, see Barrett, op cit n 10 supra, at 419.
52. See para 69 of Advocate General Geelhoed's Opinion in Jia, n 4 supra; Barrett, ibid, at 375-376.
53. See Tryfonidou, op cit n 24 supra, at 55.
54. S. Besson and A. Utzinger, 'Introduction: Future Challenges of European Citizenship - Facing a Wide-Open Pandora's Box', (2007) 13(5) European Law Journal 573, at 579.
55. Reich and Harbacevica, op cit n 20 supra, at 617.
56. Case C-85/96, Martínez Sala v Freistaat Bayern [1998] ECR I-269.
57. Case C-456/02, Trojani v Centre public d'aide sociale de Bruxelles [2004] ECR I-7573.
58. Case C-209/03, R (Bidar) v London Borough of Ealing and Secretary of State for Education and Skills [2005] ECR I-2119
59. For an explanation, see Tryfonidou, op cit n 24 supra, at 55-60.
60. Foster, op cit n 21 supra, at 295.
61. The importance attached by the Court in ensuring the protection of the family life of nationals of the Member States who have exercised one of the fundamental freedoms can be seen in most of the Court's case-law on family reunification rights, especially the most recent cases - see, for instance, Metock, n 8 supra, para 56; Eind, n 7 supra, para 44; Carpenter, n 3 supra, para 38; MRAX, n 23 supra, para 53.
62. Case C-168/91, Konstantinidis v Stadt Altensteig, Standesamt, and Landratsamt Calw, Ordnungsamt [1993] ECR I-1191, para 46.
63. For a similar view see Schiltz, op cit n 16 supra, at 251-252.
64. See, eg, the recent Family Reunification Directive (Directive 2003/86, n 42 supra), para 2 of the Preamble; Directive 2004/38, n 6 supra, para 31 of the Preamble.
65. Case C-332/90, Steen v Deutsche Bundespost [1992] ECR I-341.
66. Joined Cases C-29/94, C-30/94, C-31/94, C-32/94, C-33/94, C-34/94 and C-35/94, Criminal Proceedings against Aubertin and Others [1995] ECR I-301.
67. Case C-299/95, Kremzow v Republic Österreich [1997] ECR I-2629.
68. See Morson and Jhanjan, n 1 supra; Joined Cases 297/88 and 197/89, Dzodzi v Belgian State [1990] ECR I-3763.
69. A similar argument was made by Ireland and some of the governments that had submitted observations in the Metock case (see para 76 of Metock, n 8 supra). In response to this argument, the Court merely repeated the classic statement that 'the Treaty rules governing freedom of movement for persons and the measures adopted to implement them cannot be applied to activities which have no factor linking them with any of the situations governed by Community law and which are confined in all respects within a single Member State' (para 77 in Metock) and '[a]ny difference in treatment between those Union citizens and those who have exercised their right of freedom of movement, as regards the entry and residence of their family members, does not therefore fall within the scope of Community law' (para 78).
70. Case C-200/02, Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department [2004] ECR I-9925.
71. Case C-148/02, Garcia Avello v État belge [2003] ECR I-11613.
72. Case C-403/03, Schempp v Finanzamt München, [2005] ECR I-6421.
73. This problem was identified by Advocate General Jacobs in his Opinion in Konstantinidis, n 62 supra, para 47, but the Advocate General was of the view that this problem should not hinder the extension of human rights protection in the way he suggested (para 49).
74. For a commentator explaining the need for 'a criterion of reasonableness implicit in the scope of the Treaty' which may be used to justify a difference in treatment (including reverse discrimination) in EC law, see E. Cannizzaro, 'Producing "Reverse Discrimination" through the Exercise of EC Competences', (1997) 17 Yearbook of European Law 29, at 41-42.
75. Chen, n 70 supra, para 19. For a criticism of this, see A. Tryfonidou, 'Kunqian Catherine Zhu and Man Lavette Chen v. Secretary of State for the Home Department: Further Cracks in the "Great Wall" of the European Union?', (2005) 11(4) European Public Law 527, at 540-541. For a commentator who wonders whether it makes sense to insist on a transboundary element for a situation to fall within the scope of the fundamental freedoms, in view of the trend followed in the Court's case-law where it is overly easy to establish such an element, see A. Epiney, 'The Scope of Article 12 EC: Some Remarks on the Influence of European Citizenship', (2007) 13(5) European Law Journal 611, at 616-617.
76. Eeckhout has pointed out that the concept of EU citizenship, and its underlying rationale, will form a major force behind the conferral of fundamental (human) rights on the moving European citizen. However, he very rightly goes one step further in his analysis and argues that if fundamental (human) rights are conferred on the moving European citizen, then this, undoubtedly, will lead to the further question of whether it remains permissible to differentiate between moving Union citizens and Union citizens who stay still. See P. Eeckhout, 'The EU Charter of Fundamental Rights and the Federal Question', (2002) 39 Common Market Law Review 945, at 972.
77. Opinion of Advocate General Geelhoed in Jia, n 4 supra, para 75. See also Tryfonidou, op cit n 24 supra, at 60-64; N. Nic Shuibhne, 'The European Union and Fundamental Rights: Well in Spirit but Considerably Rumpled in Body?', in P. Beaumont, C. Lyons and N. Walker (eds), Convergence and Divergence in European Public Law (Hart, 2002), 177, at 192.
78. For a view that reverse discrimination should, now, be prohibited in view of the development of the status of Union citizenship, see F. G. Jacobs, 'Citizenship of the European Union - A Legal Analysis', (2007) 13(5) European Law Journal 591, at 598. See also Besson and Utzinger, op cit n 54 supra, at 583-584. 79 [2007] OJ C303/1
79. [2007] OJ C303/1
80. Case 5/88, Wachauf v Germany [1989] ECR 2609.
81. Case C-260/89, ERT AE v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas [1991] ECR I-2925; Case C-368/95, Vereinigte Familiapress Zeitungsverlags- und Vertriebs GmbH v Heinrich Bauer Verlag [1997] ECR I-3689.
82. Kremzow, n 67 supra.
83. Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, [2007] OJ C306/1. See Article 1 of the Lisbon Treaty, in particular, the new Article 6(1) of the TEU, as will be amended following the Lisbon Treaty coming into force.
84. Emphasis added.
85. See Eeckhout, op cit n 76 supra, at 977; P. Craig and G. de Búrca, EU Law: Text, Cases and Materials (Oxford University Press, 2008), at 402. Writing in 2001, Gráinne de Búrca noted that the drafting process of Art 51(1) of the Charter 'illustrates an emergent reluctance to commit the Member States to observing the norms of the Charter other than in the cases which are most closely linked to the European Union where the Member States have little or no autonomy, ie the actual implementation of European Union legislation'. See G. de Búrca, 'The Drafting of the European Union Charter of Fundamental Rights', (2001) 26(2) European Law Review 126, at 137.
86. It should be noted that the 'Explanations relating to the Charter of Fundamental Rights' document has not shed any further light on this question but has, in fact, complicated the situation by employing a term which has not previously been used in the case-law of the Court and which is capable of actually broadening the scope of application of the Charter (and, in general, EU human rights protection) as regards acts of the Member States: 'the requirement to respect fundamental rights defined in a Union context is only binding on the Member States when they act in the context of Community law' (emphasis added). See 'Explanations relating to the Charter of Fundamental Rights of the European Union', CONVENT 49, Charte 4473/00, at 46.
87. Regulation 1612/68, n 30 supra; and Directive 73/148 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services, [1973] OJ L172/14.
88. Moreover, and somewhat ironically, this restrictive interpretation of the scope of the Charter is likely to give rise to new instances of reverse discrimination as regards the availability of human rights protection. This time, however, the discrimination will be exercised by the Union itself against some of its own citizens (those that wish to be accompanied by their family members in their State of nationality and residence) who will be treated worse than third-country nationals lawfully resident in the EU who will wish to be accompanied in their State of permanent residence by their family members. This is because there is an EC Directive (see Directive 2003/86, n 42 supra) governing the rights to family reunification of third-country nationals residing in the EU who want to be accompanied by their family members in their State of lawful residence. Therefore, in cases which will involve the implementation of this Directive, the (third-countrynational) claimants will be able to rely on the Charter in order to require the relevant Member State to respect their human rights as a matter of EC law; whereas in situations involving Union citizens who rely on EC law to be accompanied by their family members in their State of nationality and residence, the Charter will not be applicable as a check on whether the refusal of their Member State to grant them family reunification rights violates their human rights. White has also pointed out that the fact that the Family Reunification Directive does not require third-country nationals to exercise inter-State movement in order to derive family reunification rights from EC law, whilst Union citizens must exercise such movement in order to derive such rights, 'could result in some anomalies. If the immigration rules of the Member State are restrictive, then it could result in third country nationals being treated more favourably than nationals ... This could perpetuateùeven extendùreverse discrimination ...'. See R. C. A. White, 'Conflicting Competences: Free Movement Rules and Immigration Laws', (2004) 29 European Law review 385, at 395. For a similar view, see Walter, op cit n 15 supra, at 44.
89. C. McGlynn, 'Families and the European Union Charter of Fundamental Rights: Progressive Change or Entrenching the Status Quo?', (2001) 26(6) European Law Review 582, at 587.