Sample Undergraduate 1st EU Law Assignment

The State of EU Law with Regards Free Movement of Persons

Introduction

This essay will critically assess the state of EU law with regards free movement of persons in the light of the 2018 judgment handed down by the Court of Justice of the European Union (ECJ) in the case of KA and Others v Belgium.[1]In particular, the essay will ask whether or not it may properly be said that this case and others have gone too far in allowing non-EU nationals to derive rights of residence from EU citizens considering the controversial issue that is ongoing migration into the EU.  It will be seen that this judgment followed other controversial cases such as the judgments of the ECJ in Ruiz Zambrano[2]and in the case of Zhu and Chen[3]in furthering the right of Third Country Nationals (TCN’s) to reside within the EU even where the national law of Member States ostensibly denies them this right.

Free Movement and the “Derivative” Benefits Conferred by Citizenship of the EU

Free movement of workers has long been one of the fundamental pillars which is regarded as being central to the economic and social objective of the EU and its single market.[4]  Not only does allowing the free movement of workers allow the Member States the ability to take advantage of a “mobile labour pool”, which was essential to the fledgling EU’s post-war goals of economic recovery, but it has been recognised that allowing individuals to move and reside in other EU Member States fulfils a social objective through encouraging integration between the Member States.[5]  This may be regarded as being one of the reasons why the ECJ has traditionally been regarded as having been somewhat activist in this area through its protection of job-seekers who move to another State to seek work as well as those moving to accept offers of jobs actually made,[6] and of students through EU citizenship.[7] Those in part time employment,[8] and those working for only limited remuneration[9] (or for non-monetary remuneration as long as the work is genuine and effective) can qualify as workers.[10] 

However, since the introduction of European Citizenship by the Maastricht Treaty, now reflected in Article 20 of the Treaty on the Functioning of the European Union (TFEU),[11] the free movement of workers under Article 45 TFEU has been complemented by citizens’ rights to move and reside under Article 21 TFEU, subject to the conditions laid down in EU law.[12]  This is made clear by the provisions of the Citizenship Directive, which expressly extends the right to move and reside within the territory of another Member State for those with “worker” status and generally grants permanent residence after five years’ continuous lawful residence, and which significantly limits the ability of Member States’ to remove these individuals without good cause.[13]  Indeed, the ECJ, in the case of Grzelczyk v Centre public d’aide Sociale d’Ottignies-Louvain-la-Neuve noted this, by suggesting that “Union citizenship is destined to be the fundamental status of nationals of the Member States”.[14]  This has been borne out in the ECJ’s case law on the subject, as seen in Martínez Sala v Freistaat Bayern for example, where a Spanish national lawfully resident in Germany was refused a child-raising allowance because she did not hold the residence document required of foreign nationals. The ECJ left her status as a worker for the national court to determine.[15]  However, by virtue of her status as an EU Citizen, the case was to be determined under EU law and the German requirement for her to have a German residency permit was therefore discriminatory.[16]  The Citizenship Directive however, also notably extends the rights conferred by EU Citizenship to “family members” who accompany or join a Union citizen in another Member State[17] and requires the host State to facilitate entry and residence for certain other relatives and durable partners.[18]  Family members under Article 2 include the spouse, a registered partner where the host State treats the partnership as equivalent to marriage, and the direct descendants of either the Union citizen or the spouse or partner who are under 21 or dependent. Dependent direct relatives in the ascending line of either also qualify.[19]

It may be suggested that the interpretation of Article 20 TFEU by the ECJ has, to some extent, also extended the rights created by Citizenship to TCN’s who would not otherwise have these rights as was seen in the landmark case of Ruiz Zambrano v Office national de l’emploi, where a Colombian TCN who had unsuccessfully applied for “refugee” status was not granted a work permit in Belgium.[20]  Mr Zambrano and his Colombian wife had been ordered to leave Belgium.  However, Zambrano did have two children who had been born in Belgium and who had Belgian (and therefore, EU) citizenship.  The ECJ held that Belgium could not refuse Mr Zambrano residence or a work permit where the result would be that his dependent children had to leave the Union, denying them the “genuine enjoyment of the substance” of their rights as EU citizens.[21] 

It appears from the Ruiz Zambrano case and subsequent case law that removing a parent or primary carer may indirectly deprive the dependent citizen of the substance of their citizenship rights.  It might be thought therefore that this is a way in which some form of additional, parasitic rights can accrue to TCN’s by virtue of their status as carers of dependant EU citizens.[22]  For example, in Zhu & Chen v Secretary of State for the Home Department,[23]a Chinese mother gave birth in Northern Ireland and her daughter acquired Irish citizenship under the law then in force. The child had sufficient resources and sickness insurance and was entitled to reside in the United Kingdom, then an EU Member State. To deny her mother, her primary carer, residence would have deprived the child’s right of its effect.[24]  This suggests that the ECJ will uphold the right to free movement extremely stringently, even where an individual deliberately makes use of a Member State’s nationality law. The ECJ rejected the suggestion that doing so in Zhu & Chen was an abuse of EU law.  This may be said to cause some significant controversy as it significantly impedes Member States’ ability to regulate their own immigration policies arguably in excess of the extent to which they expressly agreed through the Treaty provisions on citizenship and through the rights set out in the Citizenship Directive.[25]  As such, the judgments in Zhu & Chen and in Ruiz Zambrano raise questions over the extent to which the ECJ has balanced the rights of Member States to regulate themselves, as well as over whether or not the fundamental EU principle of subsidiarity was given effect to.[26] 

Where does the Law Now Stand?

Whilst Craig and de Burca argue that the ECJ retreated from the Zambrano principle in the case of Dereci v Bundesministerium fur Inneres,[27] it is submitted that concerns over the extent to which citizenship rights can be extended parasitically to TCN’s in these “family reunification cases” are largely un-allayed by the subsequent case law in this area.[28]  Indeed, concerns over the limits of citizenship are likely to be furthered among Member States following the judgment in KA and others v Belgium.[29]In KA, the applicants were subject to return decisions and entry bans. Some bans were based on non-compliance with a return decision and some also on public policy grounds.  Under Belgian law, the applicants were required to leave Belgium to seek withdrawal or suspension of their bans before their family residence applications would be examined.  Although the Return Directive did not itself require Belgium to examine those residence applications, the ECJ held that Article 20 TFEU precluded automatic refusal to do so. The finality of the ban and the fact that dependency arose afterwards did not bar the claim. The national authorities had to assess whether refusal of residence would in practice compel a dependent Belgian citizen to leave the Union as a whole. For adults such dependency is exceptional. For children, the assessment includes age, development, ties to each parent and the effects of separation. A family link alone does not establish dependency, and living together is not essential. A public policy refusal requires an individual assessment of a genuine, present and sufficiently serious threat, taking account of proportionality, fundamental rights and the child’s best interests. Before taking a fresh return decision, Belgium also had to consider any relevant family circumstances in the later application which the applicant could not have raised earlier. In Bukla the Court confirmed that a return decision on national security grounds cannot rest solely on a binding, unreasoned security opinion without an individual assessment.[30] 

What is significant about this judgment however is that it appears to be another substantial step in the ECJ’s widening of the rights engendered by Citizenship after some retreat from this in Dereci and some other cases as is argued by Craig and de Burca.[31]  In Dereci, the wish to keep a family together in the Union did not in itself suffice. In particular, the judgment in KA may at first appear inconsistent with that given in the case of McCarthy v Secretary of State for the Home Department, in which the EU citizen had never exercised her right to free movement.[32]  In McCarthy, a British and Irish national who had married a TCN applied for her first Irish passport, and without moving from the UK, sought to rely on her Irish citizenship to invoke her right to have the right to move and reside in the UK extended to her spouse.  The Directive did not apply, and on the facts the refusal neither compelled her to leave the Union nor impeded her freedom of movement.[33]  In KA however, the Court again acknowledged the Zambrano principle by recognising that seeking to overturn the travel ban from outside of the country could, depending on the relationship of dependency, force a citizen who had never moved to leave the EU. It was that risk which distinguished KA from McCarthy.[34]

Conclusion

The ruling in KA v Belgium once again re-asserts the principle laid down in Ruiz Zambrano that removing a carer or parent can deprive dependent EU citizens of their rights if it forces them in practice to leave the Union as a whole.  The rights conferred by Citizenship under Article 20 TFEU therefore can be seen as being significant as was prophesied by the ECJ in the Grzelczyk case, even where there has been no cross-border movement. The Directive, by contrast, applies to a Union citizen who moves to or resides in a Member State other than that of their nationality. In Stadt Wuppertal the Court held that the Article 20 right arises when the necessary dependency begins. In Safi it held that the child’s own Member State must grant residence to a parent who has permission to live in another Member State if family life with both parents on whom the child depends could not continue in that other State, or if the move would be contrary to the child’s best interests.[35]  Again, this may be said to place the ECJ’s jurisprudence in this area in conflict with the opinion of some Member States who may wish for greater control over their borders and immigration policy.

Bibliography

Table of Cases

Case C-256/11 Dereci v Bundesministerium fur Inneres [2011] ECR I-11315

Case C-82/16 KA and Others v Belgium EU:C:2018:308

Case 139/85 RH Kempf v Staatssecretaris van Justitie [1986] ECR 1741

Case 53/81 Levin v Staatssecretaris van Justitie [1982] ECR 1035

Case C-85/96 Martínez Sala v Freistaat Bayern [1998] ECR I-2691

Case C-434/09 McCarthy v Secretary of State for the Home Department [2011] ECR I-3375

Case C-184/99 Rudy Grzelczyk v Centre Public d’aide Sociale d’Ottignies-Louvain-la-Neuve [2001] ECR I-6193

Case C-34/09 Ruiz Zambrano v Office National de l’Emploi [2011] ECR I-1177

Case 196/87 Steymann v Staatssecretaris van Justitie [1988] ECR 6159

Case C-200/02 Zhu & Chen v Secretary of State for the Home Department [2004] ECR I-9925

Case C-292/89 Antonissen, EU:C:1991:80

Case C-130/24 Stadt Wuppertal, EU:C:2025:340; Case C-147/24 Safi, EU:C:2026:442.

Case C-26/25 Bukla, EU:C:2026:593

Table of Legislation

Directive 2008/115/EC (Return Directive) [2008] OJ L348/98

Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (corrected text) [2004] OJ L229/35

Treaty on the Functioning of the European Union 2007

Secondary Sources

Barnard C, The Substantive Law of the EU: The Four Freedoms (5^th edn OUP 2016)

Craig P, de Burca G, EU Law: Text, Cases, and Materials (6^th edn OUP 2015)

de Witte F, ‘The End of EU Citizenship and the Means of Non-Discrimination’ [2011] 18 MJECL 86

Gromek-Broc K, ‘The Future of European Integration: Could it Bring a “Europe of Citizens”?’ [2013] 18 Cov LJ 1

Kochenov D, ‘On Tiles and Pillars: EU Citizenship as a Federal Denominator’ in Dimitry Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (1^st edn CUP 2017)

Nic Shuibhne N, ‘Recasting EU Citizenship as Federal Citizenship: What are the Implications for the Citizen When the Polity Bargain is Privileged?’ in Dimitry Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (1^st edn CUP 2017)