Free movement, immigration control and constitutional conflict

European Constitutional Law Review

Volumn 5, Issue 2, 2009, Pages 173-196

  Peers, Steve ^a  

^a UNIVERSITY OF ESSEX   (United Kingdom)

Author keywords

Division of competences; EU citizenship; European Community; European Court of Justice; European Union; Free movement; Immigration; Member States; Reverse discrimination; Third country family members

Indexed keywords

EID: 72449167021     PISSN: 15740196     EISSN: 17445515     Source Type: Journal    
DOI: 10.1017/S1574019609001734     Document Type: Article

References (159)

1. Case C-127/08, judgment of 25 July 2008, not yet reported.
2. See B. Olivier and J.-H. Reestman, case note on Jia, 3 EUConst (2007) p. 463.
3. OJ 2004 L 229/35.
4. See the measures repealed by Art. 38 of Directive 2004/38 (ibid.).
5. See, for instance, Joined Cases 36 and 36/82 Morson and Jhanjan [1982] ECR 3723.
6. Directive 2003/86 (OJ 2003 L 251/12), adopted pursuant to Art. 63(3)(a) TEC. It should be noted that the Commission's original proposal for this Directive would have extended the EC free movement family reunion rules to the admission of family members of home State national spon sors (see COM (1999) 638, 1 Dec. 1999, Art. 4), but the Council deleted this provision from the Directive.
7. Case C-370/90 Surinder Singh [1992] ECR I-4265, paras. 19-21.
8. On the facts of Singh, the family had been created in the UK by means of marriage, presum ably in accordance with UK immigration law, before the departure to another member state (see para. 3 of the judgment).
9. The point arises because the Court's judgment only referred to Arts. 48 and 52 EEC (now Arts. 39 and 43 TEC) and the relevant secondary legislation, although it should be noted that this legislation also applied to persons providing or receiving services in another member state. The Singh judgment also pre-dated the formal creation of EU citizenship and the deadline to apply EC legislation conferring free movement rights for non-economic purposes.
10. In para. 24 of the judgment, the ECJ ruled that member states could take steps to prevent abuse of EC law, but did not seem to think that this was relevant in the circumstances. The concept of an 'abuse' of EC law still remains unclear some years later: See K.E. Sorensen, 'Abuse of Rights in Community Law: A Principle of Substance or Merely Rhetoric?', 43 CMLRev. (2006) p. 423. In para. 12 of the judgment, the Court noted that the Singh marriage had not been alleged to be a 'sham', implying a contrario that a 'sham' marriage would not benefit from EC free movement law, but there was no further explanation of this point.
11. The Court expressly stated in Singh (para. 23) that national law could be more generous as re gards the entry and stay of foreign spouses of a member state's own citizens, but it is not entirely clear from the judgment whether the Court was only referring here to purely internal situations, to Singh returnees, or to both.
12. Case C-60/00 Carpenter [2002] ECR I-6279, para. 39.
13. See Case C-148/02 Avello [2003] ECR I-11613.
14. and C-200/02 Chen and Zhu [2004] ECR I-9925. It is clear from the latter case that this rule also confers rights on at least some family members of the EU citizen concerned.
15. As noted above, the Court did not make any express reference to this point in Singh. In Gul (Case 131/85 [1986] ECR 1573), the Court again made no reference to this issue; it is clear that the third-country national family member in that case was originally admitted pursuant to national im migration law, and this probably predated the family relationship with an EU citizen (paras. 3 and 4 of the judgment).
16. The position in the Diatta case (Case 267/83 [1985] ECR 567) is not clear, but the Court made no reference to this issue. In the Baumbast case, it is perfectly clear that the marriage between the EU citizen and the third-country national took place within the host state (para. 16 of the judgment)
17. but the Court had no doubt that the free movement rules applied (Case C-413/99 [2002] ECR I-7091). However, in the connected R case the marriage had taken place in the member state of origin of the EU citizen (para. 23 of the judgment).
18. In Carpenter, the family was also formed within the host member state (para. 13 of the judgment, n. 12 supra).
19. The MRAX judgment clearly applied, at least in part, to the legal position following marriages between EU citizens and third-country nationals within the host State (Case C-459/99 [2002] ECR I-6591, paras. 33, 63 and 73).
20. The Kaba case concerned a third-country national who married an EU citizen inside the host state (see Case C-356/98 Kaba I [2000] ECR I-2623, para. 13), but this was not material to the judgment.
21. See for instance, Case C-363/89 Roux [1991] ECR I-273, and the case-law cited in para. 28 of that judgment.
22. see now Arts. 5(5), 8(2), 9(3), 25 and 26 of Directive 2004/2038.
23. See supra n. 14.
24. See earlier Joined Cases 389/87 and 390/87 Echternach and Moritz [1989] ECR 723, para. 25.
25. However, see the contrary interpretation of MRAX by C. Schlitz, 'Akrich: A Clear Delimita tion without Limits', 12 MJ 3 (2005) p. 241 at p. 246.
26. See supra n. 12, para. 44.
27. Case C-109/01 [2003] ECR I-9607.
28. See para. 37 of the judgment.
29. Para. 49 of the judgment (emphasis added).
30. Para. 50 of the judgment (emphasis added).
31. Paras. 52-53 of the judgment.
32. Para. 54 of the judgment.
33. Paras. 55-56 of the judgment.
34. Para. 57 of the judgment.
35. Paras. 58-60 of the judgment.
36. For detailed criticism on this point, see S. Peers, 'Family Reunion and Community Law', in N. Walker (ed.), Towards an Area of Freedom, Security and Justice (OUP, 2004), p. 143 at p. 152-153.
37. It might be presumed, on the other hand, that Akrich and Singh could implicitly be distin guished on the ground that in the latter case, the family member had already been lawfully resident in the UK before the move to another member state and subsequent return to the UK. For more on the contradictions between the cases, see Schlitz (n. 17 supra) p. 247-249;
38. E. Spaventa, case note on Akrich, 42 CMLRev. (2005) p. 225 at p. 231-237
39. and N. N. Shuibhne, 'Derogating from the Free Movement of Persons: When can EU Citizens be Deported?', 8 CYELS (2005-2006) p. 187 at p. 204.
40. Such cases clearly fall within the scope of EC free movement law at least as far as the EU citizen is concerned, even if the citizen was resident immediately previously in a non-member state: See Case C-138/02 Collins [2004] ECR I-2703.
41. See also the comments of A.P. van der Mei, case note on Akrich, 6 EJML (2004) p. 277 at p. 279
42. and D. Martin, case note on Jia, 9 EJML (2007) p. 457 at p. 460, who also points to the wording of Art. 1 of Reg. 1612/68.
43. Nor did the Opinion of the Advocate-General. His later opinion in Jia noted the contradic tions in the case-law but did not expressly suggest a solution, although the opinion would have implicitly entailed overturning the more liberal judgments.
44. See further Spaventa (n. 29 supra).
45. See R. White, 'Conflicting Competences: Free Movement Rules and Immigration Laws', 29 ELRev. (2004) p. 385 at p. 391-393
46. and Shuibhne (n. 29 supra) at p. 204-205.
47. See also the analysis of the judgment by R. White, ibid.
48. Paras. 51-54 of the judgment.
49. The question would arise whether the correct 'legal base' was the free movement provisions or the immigration provisions of the EC Treaty, with important consequences for decision-making rules, the Court of Justice's jurisdiction, and the facility of some member states to opt out of the legislation.
50. Art. 3(1) of the Directive refers to family members who 'accompany or join' the EU citizen, whereas Art. 10(1) of Reg. 1612/68 referred to family members who 'install' themselves with the worker.
51. For instance, see Gul, para. 14;
52. Diatta, paras. 16 and 17;
53. and Baumbast, para. 74.
54. See further Martin (n. 31 supra), at p. 460.
55. The same points can be made in response to the criticism of the Jia judgment by A. Tryfonidou, 'Jia or "Carpenter II": The edge of reason', 32 ELRev. (2007) p. 908.
56. The position in Akrich (as regards the interpretation of Reg. 1612/68) and Jia can be distinguished from Singh, Carpenter and Eind because in the latter cases, the literal wording of the EC legislation does not cover the cases in question, so a reliance on the 'deterrent' argument instead of a literal interpretation is not problematic per se.
57. See the comments on this issue in Schlitz (n. 17 supra) p. 249-251;
58. Spaventa (n. 29 supra) p. 236-237;
59. and Shuibhne (n. 29 supra) p. 205-206.
60. See Spaventa, ibid., p. 238-239, and Shuibhne, ibid.
61. See infra section 'Analysis'
62. See van der Mei (n. 31 supra) p. 480.
63. For a summary of the relevant case-law, see Peers (n. 28 supra), p. 145-149
64. and for criticism, see idem, p. 190-197. There is nothing in the Akrich judgment to suggest that the Court of Justice was demanding that a higher standard than the Strasbourg jurisprudence should apply.
65. Case C-157/03 [2005] ECR I-2911.
66. Case C-1/05 [2007] ECR I-1.
67. The Jia case also concerned the definition of 'dependence' as regards such family members, but this issue is outside the scope of this paper.
68. Paras. 31 and 32 of the judgment.
69. On one interpretation, the Court required 'lawful residence': See Martin (n. 31 supra), p. 461.
70. Compare with the opinion, which argued that national law applied, and moreover suggested a definition of 'lawful residence' of the family member by comparison with the definition of third- country national sponsors under the family reunion directive (n. 6 supra): Holding a residence permit valid for at least a year, and having a reasonable prospect of obtaining long-term residence rights. On one interpretation, there are three possible interpretations of the judgment on this point: M. Elsmore and P. Starup, case note on Jia, 44 CMLRev. (2007) p. 787 at p. 793-798.
71. Olivier and Reestman (n. 2 supra p. 470-472) argue that the Court necessarily accepted that EC law governed the initial entry of third-country nationals, but that national law could establish a lawful residence rule.
72. Such a test would be very similar to the Advocate-General's opinion, although a condition of a possibility of obtaining long-term residence status is not quite as restrictive as his suggestion of a reasonable prospect of obtaining it.
73. The opinion strongly implied that the EC was competent to address the issue, but on the basis of its immigration competence. See also the discussion by Olivier and Reestman (n. 2 supra) p. 472-474.
74. Case C-291/05 [2007] ECR I-10719.
75. As noted above, the question was left open in Singh as to whether the sponsor has to be exercising economic activities for the Singh rule to apply - although the facts of Eind only concern the (non-) exercise of economic activities in the home state, rather than in the host state. In the meantime the Carpenter judgment had implicitly answered the question (by analogy) of whether the Singh rule applies to service providers (if not necessarily service recipients).
76. Paras. 33-37 of the judgment, particularly para. 37.
77. Paras. 31 and 38 of the judgment.
78. Para. 32 of the judgment; the Court also asserted that this interpretation was substantiated by the creation of the status of EU citizenship.
79. Para. 39 of the judgment.
80. Para. 43 of the judgment.
81. Para. 44 of the judgment.
82. The same point could be made of the parallel analysis in the Carpenter judgment, which the Court refers to here.
83. The Court expressly stated that it was unnecessary to answer the relevant questions: Para. 46 of the judgment.
84. Para. 46 of the judgment.
85. The relevant rule is set out in para. 16 of the judgment. For more on the national legal background, see E. Fahey, 'Going Back to Basics: Re-embracing the Fundamentals of the Free Move ment of Persons in Metock', 36 LIEI (2009) p. 83 at p. 86-87.
86. For the reasons for this, see the order in the Metock case, dated 17 April 2008. For more on this issue, see S. Currie, 'Accelerated justice or a step too far? Residence rights of non-EU family mem bers and the Court's ruling in Metock v Minister for Justice, Equality and Law Reform', 34 ELRev. (2009) p. 310 at p. 315-319.
87. Case C-551/07 Sahin. This case was subsequently decided by an order of the Court, essen tially repeating the key elements of the Metock judgment (order of 19 Dec. 2008, not yet reported).
88. A later case, referred in June 2008, which also raised similar questions to Metock, was withdrawn in light of the Metock judgment (see the order of 13 Oct. 2008 in Case C-276/08 Rimoumi and Prick, not yet reported).
89. Para. 49 of the judgment.
90. Paras. 50-54 of the judgment, referring to Arts. 2, 3, 5, 6, 7 and 10 of the Directive. In fact a number of other provisions of the Directive make no reference to any condition of prior lawful residence by family members: Arts. 1, 9, 11, 12, 13, 14, 17, 18 and 20.
91. See also Art. 25 of the Directive. The reference to lawful residence as regards the acquisition of a permanent residence right (Art. 16(2)) could obviously be regarded as creating an a contrario effect. The absence of any reference to the lawfulness of residence in Art. 24 or Chapter VI of the Directive is also surely relevant.
92. Para. 54 of the judgment.
93. Para. 55 of the judgment.
94. Para. 56 of the judgment.
95. Para. 58 of the judgment (emphasis added), referring to MRAX and Commission v. Spain.
96. Para. 59 of the judgment. However, it has been rightly pointed out that the Court has later diverged from this position, in its judgment in Case C-158/07 Forster (judgment of 18 Nov. 2008, not yet reported): See Currie (n. 64 supra), p. 319-320
97. and C. Costello, 'Metock: Free Movement and "Normal Family Life" in the Union', 46 CMLRev. (2009) p. 587 at p. 601-602.
98. Para. 60 of the judgment.
99. Paras. 61 and 62 of the judgment.
100. Para. 63 of the judgment (emphasis added).
101. Para. 64 of the judgment.
102. Para. 65 of the judgment.
103. Para. 66 of the judgment.
104. Para. 67 of the judgment. This statement, while fundamentally correct, is of course over- simplistic. There would not just be a distinction as regards whether family members were admitted or not, but also (even where the family members could in principle be admitted) a wide variation in the conditions (such as integration, resources and accommodation requirements) placed by member states upon admission, with the result that admission would be significantly easier in some member states than others. Also, the Court makes no mention of the question as to whether there would be a non-discrimination rule for EU citizens who have exercised free movement rights as compared to the family reunion rules applicable to a member state's own nationals. But even if this were the case, there would still be, as the Court says, a significant variation in the relevant rules.
105. Para. 68 of the judgment.
106. Para. 69 of the judgment.
107. Para. 71 of the judgment. It is of course striking that the Irish ministry based an argument on the Community's external borders, given that it does not participate in the relevant rules. Moreover, given the degree of communitarisation of the external border rules, this line of argument undercuts the argument that member states retain competence over first entry of third-country nationals.
108. Para. 72 of the judgment.
109. Para. 73 of the judgment.
110. Para. 74 of the judgment.
111. Para. 75 of the judgment.
112. Para. 76 of the judgment.
113. Para. 77 of the judgment, referring to Case C-212/06 Government of the French Community and Walloon Government [2008] ECR I-1683.
114. Para. 78 of the judgment.
115. Para. 79 of the judgment.
116. Paras. 82-84 of the judgment.
117. Para. 87 of the judgment.
118. Para. 88 of the judgment.
119. Para. 91 of the judgment (emphasis added).
120. Para. 92 of the judgment (emphasis added).
121. Para. 93 of the judgment.
122. Para. 95 of the judgment.
123. Paras. 96 and 97 of the judgment, referring to MRAX. It must also follow that a person who has already been deported must be readmitted.
124. Para. 98 of the judgment.
125. See supra section 'The Akrich case'.
126. See ibid.
127. On that case-law, see Peers (n. 28 supra).
128. On this point in the judgment, see Costello (n. 72 supra), p. 603-604.
129. Para. 79 of the judgment.
130. See supra n. 6.
131. See Costello (n. 72 supra), p. 617.
132. Cf. if the Jia Opinion had been followed (n. 49 supra).
133. Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat, judgment of 3 Sept. 2008, not yet reported.
134. On this point, as noted above, the Metock judgment not only increases the standard of pro tection as regards the right to family life of EU citizens who move; in practice it could also reduce member states' enthusiasm for enacting stricter national rules for their citizens who do not move within the EC, because circumvention could now again reduce the effectiveness of those rules.
135. Case C-33/07 Jipa, judgment of 10 July 2008, not yet reported.
136. As J.B. Bierbach notes (case note on Eind, 4 EuConst (2008) p. 344-362), the same is true of Eind, but in that case the person concerned was a returnee to his own member state, rather than a person covered by an EC free movement category as such. Cf. the Jipa judgment (ibid.).
137. 'Residency refusal to 1,500 non-EU spouses for review', in Irish Times, 26 July 2008 (last accessed 14 April 2009).
138. Report on the implementation of Directive 2004/38, COM (2008) 840, 10 Dec. 2008.
139. The UK, Finland and Denmark. For Denmark, see 'EU States attack EU's top court', online at euobserver.com, dated 25 Sept. 2008 (on file with the author).
140. For the UK, see Reg. 12(1) of the Immigration (European Economic Area) Regulations, online at:http://www.ukba.homeoffice.gov.uk/sitecontent/documents/ policyandlaw/ecis/annexa.pdf ?view=Binary (last accessed on 14 April 2009).
141. AT, CZ, DE, EL, C Y, MT and NL. On the Dutch rules, see para. 5 of the Eind judgment, and further the case note on Eind by Bierbach (n. 110 supra).
142. For Austria, see para. 14 of the Sahin order (n. 65 supra).
143. The Irish rules were amended nearly immediately after the Metock judgment: See Statutory Instrument no.310 of 2008, adopted on 31 July 2008, online at: http://www.inis.gov.ie/en/INIS/SI%20310%20of%202008.pdf/Files/ SI%20310%20of%202008.pdf (last accessed 14 April 2009).
144. See also Costello (n. 72 supra), p. 617-619.
145. As Costello notes, the Court overturns only specific paragraphs of Akrich (ibid., p.599-600).
146. Or similarly, member states will be less likely to relax controls than they would have been.
147. It should be recalled that the UK and Ireland participate in most or all EC asylum law, but not in most or all legal migration measures. Denmark only participates de jure or de facto in Schengen- related measures.
148. See, for instance, the proposed Directive on reception conditions for asylum-seekers and the proposed revision of the 'Dublin II' rules on allocation of asylum applications (COM (2008) 815 and 820, 3 Dec. 2008).
149. See, for instance, R (On The Application of Baiai and Others) v . Secretary of State For The Home Department [2008] UKHL 2053.
150. For example, more restrictive rules governing marriages with citizens of other member states, as compared to nationals of the member state in question, would arguably violate Art. 12 EC. Any other form of discrimination relating to marriage (on grounds of age, gender, religion, et al.) would also fall within the scope of the general principles to the extent that the relevant rules applied to EU citizens who have exercised free movement rights, and would arguably violate those general prin ciples.
151. See paras. 56 and 68 of the judgment. It should also be recalled that in Carpenter, Singh and Eind, the Court ruled that rights for family members could be derived directly from the Treaty, not merely from secondary legislation.
152. See Costello (n. 72 supra) p. 605.
153. COM (2008) 840, 10 Dec. 2008.
154. No such guidelines had been published by 1 April 2009.
155. EP resolution on implementation of Directive 2004/38, adopted 2 April 2009, point 27.
156. -500 in favour, 104 against and 55 abstentions.
157. For instance, the Nov. 2008 JHA Council conclusions assume that Art. 35 would also apply to the presentation of false documents. This is correct, assuming that the person presenting a mem ber state's passport as proof of citizenship is not in fact a citizen of any member state.
158. See ibid., as regards the presentation of a false marriage certificate, if no marriage has in fact taken place, or a false birth certificate for a child, if no sufficient family relationship in fact exists with an EU citizen.
159. Para. 35 of the speeches (n. 121 supra).