Directive 2004/38 (Citizenship Directive) Notes

Directive 2004/38 (Citizenship Directive)

Overview

  • Codifies previously dispersed secondary legislation.
  • Concerns the right of EU citizens and their family members to move and reside freely within the EU.
  • Aims to reduce administrative formalities.
  • Limits the scope for refusing entry or terminating the right of residence.

Permanent Residence

  • Introduced by Directive 2004/38.
  • Grants the right of permanent residence to EU citizens and their family members (including non-nationals) after residing in a member state for 5 years.
  • Article 6(4): The right of permanent residence may only be lost through absences of more than two consecutive years.

Rights of Family Members

  • Family members' rights are dependent on the citizen's rights.
  • Article 2(2) defines covered family members:
    • Spouses/civil partners
    • Children
    • Grandchildren
    • Great Grandchildren
    • Parents
    • Grandparents
    • Great Grandparents
  • Age of children and grandchildren must be under 21, or over 21 if dependant.
  • Lebon Case: If a child is 21 and no longer dependant, benefits to the child cannot be considered a benefit to the citizen (except for the right to education - Gaal case).
  • Includes partners in a ‘durable relationship’ if the host member state treats registered partners as equivalent to marriage (Article 3(2)(b)): Reed case
  • Dependant relatives requiring personal care due to serious health grounds may be considered extended family members.

Divorce, Annulment, or Termination of Partnership

  • An EU national’s right of residence is not affected by divorce, annulment of marriage, or termination of a registered partnership (Article 13(1)).
  • For non-EU nationals, the right of residence will not be lost if (Article 13(2)):
    • The marriage or registered partnership lasted for 3 years, including one in the host member state.
    • The spouse retains custody of the children.
    • The applicant is subjected to domestic violence.
    • The parent has a right of access to the child in the host member state.
  • Article 35: No right of residence if the marriage is a sham.

Case Law

  • Reed Case: Unmarried partners could reside with the citizen and constitute a social advantage only where the host state treated stable partners as akin to marriage.
  • Diatta: The right of residence lasted until the marriage was formally in existence.
  • O & B v Minister roor Immigratie: Only EU citizens who exercised their free movement rights can invoke the right to be joined or accompanied by close family relatives.
  • S & G v Minister roor Immigratie:
    • Motives of the citizen are not relevant when assessing the legal situation of a couple upon their return.
    • The couple openly claimed awareness of their EU rights and had no intention of settling in Ireland.

Protection Against Expulsion

  • Directive 2004/38 introduces three levels of protection against expulsion on grounds of Public policy, Public Security and Public Health:
    • General level of protection for all citizens.
    • Enhanced level of protection for individuals with the right of permanent residence.
    • Super enhanced level of protection for minors and those who have resided for more than 10 years.

Public Policy and Public Security

  • Directive 2004/38 does not define public policy or public security.
  • Member states determine the scope of public policy, but it must be proportionate to the risk and apply equally to national citizens (Van Duyn).

Discretion of Member States

  • Adoui: The Court did not accept that a member state could deport an individual involved in prostitution in Belgium.
  • R v Pierre: Before making a deportation order, there must be a genuine and sufficiently serious threat affecting one of the fundamental interests of society.
  • Orfanopoulos: Directive 2004/38 precluded national legislation that provided for expulsion of foreign nationals without considering factual matters minimizing the present threat.
  • Rutili: A ban on entering certain areas would only be justified if the same was imposed on national citizens.
  • Directive 2004/38 codifies case law and provides protection against expulsion.
  • Tsakouridis: Before expulsion, authorities must consider relevant factors like length and frequency of absences, and reasons for absences.
    • The reason for expulsion must be valid.
    • The threat to security must be serious.
    • Trafficking narcotics as part of an organized group could meet this threshold.
  • Article 28(1) requires member states to consider:
    • Period of stay in the host member state.
    • Age.
    • State of health.
    • Family and economic situation.
    • Social and cultural integration.
    • Extent of links with the country of origin.
  • Article 28(2): Enhanced protection - citizens may only be expelled on ‘serious grounds’ of public policy or public security.
  • Article 28(3): Super enhanced protection - minors and citizens residing for more than 10 years can only be expelled ‘on ‘imperative grounds’ of public security.’

Public Health

  • Article 29(1): Only diseases with epidemic potential as defined by the relevant instruments of WTO.
  • Infectious or contagious parasitic diseases subject to protection in the host member state.
  • Article 29(2): If a disease occurs after three months of arrival, the person cannot be expelled on this ground.
  • Article 29(3): Anyone entitled to permanent residence may undergo a free medical examination after three months to verify they are not suffering from any disease.

Procedural Safeguards

  • Article 30: A person must be notified of the decision in a way they can understand its content and implications.
  • Article 31: Right to judicial and administrative review against expulsion decisions based on public policy/security/health.
  • Article 32: Enables the expulsion order to be lifted within a reasonable time (not later than three years), if there's a material change in the circumstances justifying expulsion.

Administrative Formalities

  • Article 6: Grants an initial right of entry and residence for up to three months to EU citizens and their family members, upon presentation of a valid ID card or passport.
  • Article 8: Citizens and their family members may be required to register with the host member state authorities to receive a certificate of registration.
  • Article 9/10: Non-EU national family members are to be issued with a residence card.
  • Article 4: Abolishes exit visa requirements.
  • Article 5: Abolishes entry visa requirements (except for certain third-country nationals).
    • The visa must be issued as soon as possible and free of charge: Article 5(2)

Important Considerations

  • The right to reside and work are not conditional upon initial satisfaction of the formalities (MRAX v Belgium).
  • If EU nationals or their family members lack the required documents or visas, the member state must provide a reasonable opportunity to provide documents or prove the right of residence by other means.
  • Penalties for not having required documents must be proportionate and non-discriminatory.
    • Deportation, refusal of entry, and revocation of the right of residence are disproportionate remedies.
  • Metock:
    • Application of the Directive does not depend on family members having previously resided in a member state.
    • The Directive covers nationals of non-member countries who are family members of the Union Citizen.

Jobseekers and Unemployed

  • Article 7(3) covers job seekers and unemployed.
  • Covers former workers who retain some rights of workers, and their family members.
  • Includes those temporarily unable to work due to illness/accident.
  • Includes those involuntarily unemployed and registered with the employment office as job seekers.
  • Dano: Member states may reject social assistance claims by EU citizens who have no intention to work and cannot support themselves.
  • Collins:
    • The Court considered whether Directive 68/360 granted a right of residence to a person seeking work (Directive 68/360 covers abolition of restrictions on movement and residence within the Community for workers of Member States and their families).
    • Following Antonissen, the Court held that the right of residence derived from Article 45 TFEU may be limited in time but if after expiry of that period the person concerned provides evidence that they are continuing to seek employment and that they have a genuine chance of being employed, they cannot be required to leave the territory of the host Member State.
  • Article 6 of Directive 2004/38 appears less generous in providing a right of residence of up to three months
  • Article 7 of Directive 2004/38 lays down the conditions for a right of residence for more than three months for primary movers and family members. If they are not workers or self-employed they must have sufficient resources not to become a burden on the financial system of the host state and must have comprehensive sickness insurance. This includes students (Article 7(1)(b)). The status may be retained in case of sickness, involuntary unemployment or taking up vocational training connected with the previous employment.