EU Citizenship

TFEU Article 20

• Citizenship of the Union is established, for every person holding the nationality of a member state. Exists, in addition to national citizenship.

• Inter alia, the right to move and reside freely within the territory of the Member States (conditions and limits defined by the treaties and subsequent measures

• EU citizens have the right to vote and stand in elections to the EP and in municipal elections under their MS of residence

Protection of diplomatic and consular authorities

Article 20 TFEU

Right to be protected by diplomatic and consular authorities in third countries, where home MS not represented

Right to petition the European Parliament, Apply to the Ombudsmen and Advisory Bodies of the Union (and receive a reply)

Article 20 TFEU

Right of Initiative

Not less than one million citizens who are nationals of a significant number of MS may take the right of initiative, inviting the EC to submit any appropriate proposals on matters where citizens consider that a legal Act of the Union is required to implement the treaties

Right of Residence (Up to Three Months)

• 1) Union citizens have right of residence on territory of another MS, for a period of up to three months, without any conditions or any formalities other than the requirement to hold a valid identity document or passport

• The provisions also apply to family members with a valid passport, who are not nationals of a MS

• Basis in Article 20

Right of Residence > 3 months

Article 7 of the Citizenship Directive

1. All Union citizens shall have the right of residence on the territory of another MS, for a period longer than three months if they (A) Are workers or self employed persons in the host MS (B) Have sufficient resources for themselves and their family members not to become a burden on the social assistance system in host MS (C) Are enrolled in private or public establishment, accredited or financed by the host MS on the basis of its legislation or administrative practice. Must have sickness coverage and declare to national authority that they have sufficient resources for themselves and family memebers. (D) Are Family members of Union citizen meeting A, B or C.

Non-Union Family Members

• Citizenship Directive Art 7

• Can attain rights under paragraph 1, if they satisfy the conditions in a b or c

Union Citizen who is no longer a worker (Residency)

• Art 7 Citizenship Directive

• Can retain worker status where:

• Unable to work as a result of an illness or accident

• In duly recorded involuntary unemployment, having been employed for more than one year and having registered with the employment office

• In duly recorded involuntary employment after completing a fixed term employment contract of less than a year or becoming involuntarily unemployed during first twelve months and having registered as a jobseeker (in this case worker status retained for no less than 6 months)

• Embarks on vocational training (unless involuntarily unemployed, must relate to prior employment)

Retention of Right of Residency Rights

(Citizenship Directive Art 14)

- 1. Union citizens and their family shall have the right of residence provided for in Art 6 (Up to three months), as long as they do not become an unreasonable burden on social assistance system of MS

- Union citizens and family have rights under Art 7, 12 and 13 (more than three months) as long as conditions set are met.

Derogation

Art. 14(4)

- By way of derogation, an expulsion measure may in no case be adopted against union citizens or family members if:

- A) The Union citizens are workers or self employed persons

- B) Union citizens entered MS to seek employment (Union citizens and family can remain as long as they provide evidence they are continuing to seek employment and have a genuine chance of being engaged)

Permanent Residence

Article 16

- 1. Union citizens who have legally resided for a continuous period of five years in the host MS have right of permanent residence. This right is not subject to conditions in chapter III

- 2. Para 1 shall also apply to family members of Union citizens who are not nationals and have legally resided for five years

- 3. Continuity of residence not affected by temporary absences not exceeding 6 months a year, or for 1 year for important reasons such as pregnancy, childbirth, serious or vocational training or a posting in another MS or third country

- 4. Once acquired right of permanent residence lost only through an absence from host MS for period exceeding two years

Equal Treatment

Article 24 TFEU

- 1. All Union Citizens residing on basis of this directive entitled to equal treatment with nationals of MS

- Benefit of this right is extended to family members that are not nationals of MS and who have right of residence/permanent residence

- 2. By way of derogation, host MS shall not be obliged to confer entitlement to social assistance during the first three months of residence. Nor shall it be obliged, to grant maintenance aid for studies.

EU Citizenship - Who has Rights

Nationals of MS (TFEU art 20, Citizen Directive art 2(1), 3(1))

- Family members (citizenship directive art 2(2)), art 3(1))

- Spouse or registered partner (the latter depending on the law of MS)

- Children (Under 21 or dependant)

- Dependent (Grand)Parents

- Obligation to facilitate entry and residence of wider circle of family or partners (art 3(2) in accordance with national law)

- Controversial issue of how far non-nationals have rights as part of family - especially if not really long term settlement/working in host state. Or if link to EU national broken (e.g. through divorce)

Union Citizen

• Any person holding the nationality of a MS

Family Member

The spouse, the partner (if partnership treated as an equivalent to marriage by host MS), the direct descendants who are under 21 or who are dependents and those of the spouse or partner, dependent direct relatives in the ascending line and those of the spouse or partner.

Beneficiaries

Host MS shall, in accordance with its national legislation facilitate the entry of the following persons (a) any family members (regardless of nationality), who in the country they are from are dependents or members of the household of the Union citizen with the primary right (b) the partner, with whom the Union citizen has a durable relationship, duly attested.

Zambrano v Office national de l’emploi

• Refugee from Columbia in Belgium, children born there had Belgian citizenship

• Was Mr Z (not an EU citizen) entitled to stay in the country

Held:

• Article 20 confers status of citizen on every person having MS nationality, since the children posses nationality they are Union citizens

• Article 20 prohibits measures that deprive EU citizens of genuine enjoyment of their rights

• Refusal to grant residency to the parent of a dependent minor citizen and to grant work permits to such a person, has that effect.

• Must be assumed that a refusal would mean the children would need to leave the Union

• Accordingly, MS prohibited from refusing residence, work permit to persons from third countries in such circumstances.

Zhu and Chen v Secretary of State for the Home Department

• Chinese national moved from Britain to NI prior to birth of child, thus allowing the child to attain both British and Irish nationality

Held:

• Status as a ‘dependent’ is characterised by factual situation in which material support for the family is provided by the holder of the right of residence

• Mrs Chen could not claim to be a ‘dependent’ of the child

• However, depriving Mrs Chen of residency would deprive the child of any useful effect of the residency rights

• Child is entitled to be accompanied by primary carer - accordingly, carer may reside with child in MS for the duration of such a residence.

Rendon Marin v Adminstracion del Estado

Colombian national in Spain

- Caring for two children (One Spanish, One Polish)

- Under Spanish law automatic refusal of residence permit if criminal record in Spain

- He did have derived right of residence based on children

- This could be limited on public policy grounds or public security

- Automatic refusal based on existence of criminal record did not satisfy this

Chavez-Vilchez v Raad van bestuur van Sociale verzekeringsbank

• One parent was an EU national, the other was not

• The couple separated

• The non-union national wished to stay and care for the child

Held:

• Can inquire whether this would force the child to leave with them or EU national parent can take over care

Singh v Minister for Equality

• Non EU nationals were resident in Ireland, with wives who were nationals of other EU states working there

• Spouses left Ireland, but applicants remained (after divorce)

• Could the applicants remain in Ireland? No, only limited extensions in case of divorce.

Citizenship Directive (Restrictions) Art 27

Restrictions on citizenship rights may be justified on the basis of public health, security and policy. Must be justified by the personal conduct of the individual - must be genuine and serious threat to the fundamental interests of society.

Formalities of Re-entry

Where a MS national is expelled from the territory of another MS, that MS should allow that person to re-enter without formality.

Reinhard Gebhard

• It follows that the national measures liable to hinder or make less attractive the exercise of fundamental freedoms must meet four conditions:

• 1) Must be applied in a non-discriminatory manner

• 2) They must be justified by imperative requirements in the general interest

• 3) Must be suitable for securing the attainment of the objective they pursue

• 4) Must not go beyond what is necessary to achieve the objective.

Protection Against Expulsion

Protection against expulsion*

- Article 28 of Citizenship Directive

- 1. Before taking an expulsion decision on grounds of public policy, host MSS shall take account of how long individual has resided in its territory, his/her age, state of health, family and economic situation, social and cultural integration into host MS and extent of their links with country of origin

- 2. Host MS cannot make expulsion order to people with permanent residence, unless serious public policy/security concerns

- 3. Expulsion decision may not be taken against Union citizens, unless decision is based on imperative grounds of public security, as defined by MS, if they:

- Have resided in MS for previous ten years

- Are a minor, except if the expulsion is necessary for the best interests of the child - as provided for in UNCRC

Public Health

Article 29 Citizenship Directive

- 1.Only diseases justifying measures restricting freedom of movement shall be diseases with epidemic potential

- 2.Diseases occurring after three months of arrival not constitute grounds of expulsion

- 3. MS may, within three months of arrival date, require persons entitled to right of residence to undergo a free medical examination to certify that they are not suffering from conditions referred to in para 1. Mat not be required as a matter of routine

Procedural Safeguards

Citizenship Directive Article 30

- 1. The persons concerned shall be notified in writing of any decision taken, in a way that they are able to comprehend its content and implications for them

- 2. Persons concerned shall be informed in full of public policy/health/security grounds on which decision was taken

- 3. Shall specify the court or administrative authority with which the person concerned may lodge an appeal

- Article 31

- 1. Persons concerned shall have access to judicial and where appropriate administrative redress procedure to appeal/seek review

- 2. Limitation on removal pending final outcome

- 3. Redress procedures shall allow examination of legality and facts of situation

- MS may exclude the individual concerned from their territory pending redress procedure, but may not prevent individual from submitting their defence in person, except where appearance may cause serious troubles to public policy/security or when judicial review concerns a denial of entry into territory

Resiseburo Broede v Gerd Sandker

• As court has repeatedly observed, the application of professional rules to lawyers, in particular in relating to organisation, qualifications and liability ensures that the consumers of legal services and the sound administration of justice are provided with the necessary guarantees in relation to integrity and experience

• Social and economic arguments accepted: balance between respecting national controls and desire for citizenship to abolish frontiers.