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This essay will critically assess the state of EU law with regards free movement of persons in the light of the recent judgment handed down by the Court of Justice of the European Union (ECJ) in the case of KA and Others v Belgium. 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 the right to reside, work and move freely between the EU member states 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 and in the case of Zhu and Chen 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. 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. 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 widening of the term “worker” to include those job-seekers who move to another State to seek work as well as those moving to accept offers of jobs actually made, students, those in part time employment, and those working for only limited remuneration (or for non-monetary remuneration as long as the work is some genuine economic activity).
However, since the development of the concept of European Citizenship, and the importance placed on this in Article 20 of the Treaty of Lisbon, it may be said that the rights to free movement are significantly bolstered by the rights of free movement granted by Article 45 Treaty on the Functioning of the European Union (TFEU). 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 indefinitely for those with “worker” status, and which significantly limits the ability of Member States’ to remove these individuals without good cause. Indeed, the ECJ, in the case of Grzelcyk v Centre public d’aide Sociale d’Ottinges-Louvain-la-Neuve noted this, by suggesting that “citizenship is destined to become the fundamental status of nationals of the Member States”. This has been borne out in the ECJ’s case law on the subject, as seen in Martinez Sala v Freistaat Bayern for example, where a Spanish individual, who was not a “worker” for the purposes of Article 45 TFEU was refused child benefit for her daughter on the grounds that she was not a German citizen and did not have a necessary residency document. 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. The Citizenship Directive however, also notably extends the rights conferred by EU Citizenship to “family members” of the EU citizens’ family members and “beneficiaries”. This requires that an individual be either a “spouse”, or a direct descendent under 21 years old, or a “dependant direct relative in the ascending line” as set down in Article 2 of the Citizenship Directive.
It may be suggested that the interpretation of this 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. As such, Belgium sought to expel Mr Zambrano and his Colombian wife. However, Zambrano did have two children who had been born in Belgium and who had Belgian (and therefore, EU) citizenship. The ECJ held that by expelling Mr Zambrano, these children would be denied the “genuine enjoyment of the substance” of their rights in the form of EU citizenship and so this was not allowed.
It appears from the Ruiz Zambrano case and subsequent case law that the indirect removal of the fundamental right offered by citizenship therefore by expulsion of the dependant citizen’s parents (or primary carers) will not be allowed. 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. For example, in Zhu & Chen v Secretary of State for the Home Department, two TCN’s who sought to ensure that their child was born in one of the few remaining EU States which gave effect to citizenship through jus soli in the form of Northern Ireland (as Ireland automatically extends Irish citizenship to all born on the island of Ireland, including within Northern Ireland) were extended the right to reside and claim benefits in the United Kingdom. To fail to allow this would be to deprive their child of their substantive rights to reside in the UK which was allowed by virtue of their EU citizenship. This suggests that the ECJ will uphold the right to free movement extremely stringently, even where it appears to be an abuse of, or loophole in, the Member State’s own immigration or benefit policy. 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 signing of Article 45 TFEU and through the rights set out in the Citizenship Directive. 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.
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, 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 recent case law in this area. Indeed, concerns over the limits of citizenship are likely to be furthered among Member States following the recent judgment in KA and others v Belgium. In KA, Belgium had sought to deport a number of TCNs on the grounds of public policy and subjected these individuals to an entry ban. Under Belgian law, an entry ban could only be sought to be extinguished or quashed once an application had been made outside of Belgium for a withdrawal or suspension of the entry ban. The ECJ held that this led to a situation where the applicants had to leave the country to argue against their ban. Considering that many of the applicants were carers and parents of Belgian children, and thus, EU citizens, this resulted in a situation where the child would be forced to leave the EU and so was being substantively deprived of their right to reside as guaranteed by their citizenship in line with the judgments in Ruiz Zambrano and in Zhu and Chen.
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. In particular, the judgment in KA appears to be inconsistent with that given in the case of McCarthy v Secretary of State for the Home Department, which held that free movement rights and the right to residence granted by citizenship could not be relied upon without the citizen seeking to exercise their right to free movement. In McCarthy, a British national who had married a TCN applied for Irish citizenship, 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. This was held to be not possible without the citizen seeking to exercise her right to free movement. In KA however, the Court again acknowledged the Zambrano principle by recognising that seeking to overturn the travel ban from outside of the country would force the Citizens to leave the EU thus depriving them of their rights, even if they were otherwise “static”.
The ruling in KA v Belgium once again re-asserts the principle laid down in Ruiz Zambrano that EU citizens must not be deprived indirectly of their rights as citizens to reside within a State by requiring their carers or parents to leave the EU. The rights conferred by Citizenship under Article 20 TFEU and through the Citizenship Directive therefore can be seen as being significant as was prophesied by the ECJ in the Grzelcyk case, even if the right can only be invoked when the Citizen’s right to free movement or residence is being exercised as seen in McCarthy. 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.
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 Judgment of 8 May 2018 (Unreported)
Case C-139/85 RH Kempf v Staatsecretaris van Justitie [1986] ECR 1741
Case C-53/81 Levin v Staatsecretaris van Justitite [1982] ECR 1035
Case C-85/96 Martinez-Sala v Freistaat Bayern [1998] ECR I-2691
Case C-434/09 McCarthy v Secretary of State for the Home Department [2011] ECR I-0000
Case C-184/99 Rudy Grzelcyk v Centre Public d’aide Sociale d’Ottinges-Louvain-la-Neuve [2001] ECR I-6193
Case C-34/09 Ruiz Zambrano v Office National de l’Emploi [2011] ECR I-1177
Case C-196/87 Steymann v Staatsecretaris van Justitie [1988] ECR 6159
Case C-200/02 Zhu & Chen v Secretary of State for the Home Department [2004] ECR I-9925
Table of Legislation.
Directive 2004/58/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 OJ L229/35
Treaty on the Functioning of the European Union 2007
Secondary Sources.
Barnard C, The Four Freedoms: The Substantive Law of the European Union (5th edn OUP 2016)
Craig P, de Burca G, EU Law: Text, Cases, and Materials (5th 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, ‘EU Citizenship as a Federal Denominator’ in Dmitry Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (1st edn CUP 2017)
Shubaine NN, ‘Recasting EU Citizenship as Federal Citizenship: What are the Implications for the Citizen When the Polity Bargain is Privileged?’ in Dmitry Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (1st edn CUP 2017

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