81873
Beschreibung
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Free Movement of Persons
- Citizen's Rights
- Rights of entry, exit and residence
- Directive 2004/38 Art.6 - all citizens have the right
to reside temporarily in host state for up to 3 months
- Directive 2004/38 Art.16 - one citizen has been legally residing
in host state for continuous period of 5 years they gain the right
of permanent residence
- Not affected by temporary absences of up
to 6 months in any 12 month period, or
absences due to 'important reasons' such
as pregnancy or illness
- Not affected by temporary absences of up
to 6 months in any 12 month period, or
absences due to 'important reasons' such
as pregnancy or illness
- Directive 2004/38 Art.4 - nationals must be provided
with a passport or identity card to ensure can exit
- Directive 2004/38 - a host state can't make it difficult for citizens
to enter by demanding entry visas or other such documents
- Directive 2004/38 Art.7 - 3 month period extended where citizen
is 1) a worker 2) self-employed or 3) has independent means
- Directive 2004/38 Art.6 - all citizens have the right
to reside temporarily in host state for up to 3 months
- TFEU Art.21 - "Every citizen on the Union shall have the right
to move and reside freely within the territory of the MS, subject
to the limitations and conditions laid down by the Treaties and
by the measures adopted to give them effect"
- Who is a citizen?
- TFEU Art.20 - "Every person
holding the nationality of a MS"
- TFEU Art.20 - "Every person
holding the nationality of a MS"
- Equal treatment with host state nationals
- TFEU Art.18 - general prohibition on
discrimination based on nationality
- More specific... D2004/38 Art.24(1) -
citizens and their families who have exercised
their right to free movement "shall enjoy equal
treatment with nationals" of the host state
- However D2004/38 Art.24(2) - host Member State shall not
be obliged to confer entitlement to social assistance during
the first three months of residence nor shall it be obliged,
prior to acquisition of the right of permanent residence, to
grant maintenance aid for studies, including vocational
training, consisting in student gran ts or student loans to
persons other than workers, self-employed persons, persons
who retain such status and members of their families.
- BUT the court has made it clear that Art.24 and Art.18 are to be read
in conjunction with one another and has cautioned MS against the
application of conditions which are liable to deter citizens from
making use of their right to free movement, AND CAN ONLY BE
JUSTIFIED if 'based on objective considerations of the public interest
independent of the nationality of the persons concerned and if it is
proportionate to the legitimate objective pursued by the provisions of
national law" - Joined cases C-11/06 Morgan, and C-12/06 Iris Butcher
- BUT the court has made it clear that Art.24 and Art.18 are to be read
in conjunction with one another and has cautioned MS against the
application of conditions which are liable to deter citizens from
making use of their right to free movement, AND CAN ONLY BE
JUSTIFIED if 'based on objective considerations of the public interest
independent of the nationality of the persons concerned and if it is
proportionate to the legitimate objective pursued by the provisions of
national law" - Joined cases C-11/06 Morgan, and C-12/06 Iris Butcher
- However D2004/38 Art.24(2) - host Member State shall not
be obliged to confer entitlement to social assistance during
the first three months of residence nor shall it be obliged,
prior to acquisition of the right of permanent residence, to
grant maintenance aid for studies, including vocational
training, consisting in student gran ts or student loans to
persons other than workers, self-employed persons, persons
who retain such status and members of their families.
- More specific... D2004/38 Art.24(1) -
citizens and their families who have exercised
their right to free movement "shall enjoy equal
treatment with nationals" of the host state
- Migrant students and availability
of grants/similar benefits - may
rely on Art.18 but not
unreasonable for host state to
require a certain level of
integration to be demonstrated
before support is made available
- C-209/03 Bidar
- C-158/07 Forster
- C-209/03 Bidar
- TFEU Art.18 - general prohibition on
discrimination based on nationality
- Citizens rights and family members
- D2004/38 Art.3 - provides citizens with right to be accompanied
by family members, irrespective of nationality of family members
- Arts.2&3 - 'family member' includes:
- Spouse (CJEU interprets restrictively to include
legally married persons only - Case 59/85 Reed)
- person with whom citizen has registered
partnership (provided host state recognises
these as equivalent to marriage)
- Direct descendants under 21, or dependents of
the citizen or their spouse/partner
- Direct ascendants dependent on
the citizen or spouse/partner
- Other dependent family members who, in
country from where citizen has migrated, were
resident in the household or who have serious
health problems requiring personal care
- A partner with whom citizen has durable
relationship (it's for host state to investigate this
and justify any denial of entry or residence)
- Spouse (CJEU interprets restrictively to include
legally married persons only - Case 59/85 Reed)
- Arts.2&3 - 'family member' includes:
- Piggy-back rights where family member
is an EU citizen
- TFEU Art.20 and D2004/38 Art.6 - family member has
right of free movement for period of up to 3 months,
independent of family relationships
- However, if they are a TCN or want to stay longer and can't
satisfy the criteria of either 'sufficient means' or 'economic
activity' they will need to rely on the right afforded them as
a result of their relationship with the EU citizen
- However, if they are a TCN or want to stay longer and can't
satisfy the criteria of either 'sufficient means' or 'economic
activity' they will need to rely on the right afforded them as
a result of their relationship with the EU citizen
- TFEU Art.20 and D2004/38 Art.6 - family member has
right of free movement for period of up to 3 months,
independent of family relationships
- D2004/38 Art.3 - provides citizens with right to be accompanied
by family members, irrespective of nationality of family members
- Rights of entry, exit and residence
- Limitations on Citizens' Rights
- Restrictions on exit, entry and residence on grounds of
public policy, public security and public health
- Public policy and security
- D2004/38 makes clear MS do not have
'carte blanche' to deny individuals their
rights, even on grounds listed
- For example, in regard to public policy and security, national measures:
- Must 'not be invoked to serve
economic ends': a state
shouldn't refuse entry or
expel someone due to cost
- Must 'also comply with the
principle of proportionality': a state
shouldn't expel for a minor reason
of where no equivalent sanction
would be placed on a national
- Adoui (French Prostitutes) Cases
115&116/81 - French nationals
denied entry to Belgium due to
their 'moral standards' despite
prostitution not even being
illegal in Belgium. Held that
expulsion of a migrant where
similar conduct by a national
would not incur a similarly
restrictive sanction conflicted
with proportionality
- Adoui (French Prostitutes) Cases
115&116/81 - French nationals
denied entry to Belgium due to
their 'moral standards' despite
prostitution not even being
illegal in Belgium. Held that
expulsion of a migrant where
similar conduct by a national
would not incur a similarly
restrictive sanction conflicted
with proportionality
- Must be 'based exclusively on the personal conduct
of the individual': in Van Duyn Case 41/74 CJEU held
that participation in activities and/or identification
with the aims of a group could constitute 'personal
conduct' and that the conduct need not be criminal
- Must 'represent a
genuine, present and
sufficiently serious
threat, affecting on of
the fundamental
interests of society'
- Rutili Case 36/75 - trade unionist restricted to living in particular area of
France, despite not being shown to be a 'genuine or sufficiently serious threat'
- Bouchereau Case 30/77 - migrant convicted of drug offences threatened with deportation, CJEU
said that in order to deport an individual must 'show a propensity to act in the same way in the future'
- Rutili Case 36/75 - trade unionist restricted to living in particular area of
France, despite not being shown to be a 'genuine or sufficiently serious threat'
- Previous criminal
convictions shall not in
themselves constitute
grounds
- Bonsignore Case 67/74 - person
accidentally shot brother, convicted on
unlawful possession of a firearm but
CJEU held couldn't be deported as a
general preventative measure
- Bonsignore Case 67/74 - person
accidentally shot brother, convicted on
unlawful possession of a firearm but
CJEU held couldn't be deported as a
general preventative measure
- Must 'not be invoked to serve
economic ends': a state
shouldn't refuse entry or
expel someone due to cost
- For example, in regard to public policy and security, national measures:
- D2004/38 makes clear MS do not have
'carte blanche' to deny individuals their
rights, even on grounds listed
- Public health
- D2004/38 Art.29 - may refuse
entry or expel on health grounds
- Generally concerned with
'diseases with epidemic potential'
- May require to
undergo health check
(not charged for) within
3 months of arrival
- Generally concerned with
'diseases with epidemic potential'
- D2004/38 Art.29 - may refuse
entry or expel on health grounds
- Public policy and security
- Free movement of those with 'sufficient
resources', job seekers and 'economically
active' persons
- Where citizen can show they have
sufficient resources not to become
burden on social assistance system
of host state, and comprehensive
medical insurance, their right of
residence extended beyond 3 months
but subject to limitations in Art.27
- Job seekers - D2004/38 Arts.6&14 -
citizens may reside for up to 3 months
without the usual formalities providing the
have valid passport or identity card,
obviously includes job seekers
- CJEU made clear the can't deny usual
social assistance (JSA) unless
objectively justified for reasons
unrelated to nationality - Collins Case
C-138/02 and Ioannidis Case C258/04
- as would discourage integration
- CJEU made clear the can't deny usual
social assistance (JSA) unless
objectively justified for reasons
unrelated to nationality - Collins Case
C-138/02 and Ioannidis Case C258/04
- as would discourage integration
- Economically active (workers,
self-employed, service
providers) - also able to enjoy
extended rights of residence,
along with additional rights
- Where citizen can show they have
sufficient resources not to become
burden on social assistance system
of host state, and comprehensive
medical insurance, their right of
residence extended beyond 3 months
but subject to limitations in Art.27
- Restrictions on exit, entry and residence on grounds of
public policy, public security and public health
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