Law touches upon many aspects of people’s lives, even those unexpected from a layman’s perspective. One such area is family reunification law, whose importance is growing along with the increasing rate of international migration. From the European Union law perspective, falling in love with a person of another nationality creates numerous legal challenges, while things can get even more complicated if one partner is an EU citizen and the other third country national. How do they arrange their relationship? Where can they live? What will be the status of their children?
EU family reunification framework
Even though these questions hardly seem to be of legal nature, one might find some answers in the jurisprudence of the Court of Justice of European Union (hereinafter: CJEU or Court) on interpretation of the Treaty on the Functioning of the European Union (hereinafter: TFEU) and the Citizenship Directive 2008 (hereinafter: Directive). According to Article 21 of the TFEU, EU citizens enjoy the right of free movement within the Member States, while Article 5 of the Citizenship Directive provides that all EU citizens and their family members residing in the EU on the basis of the Directive enjoy treatment equal to nationals covered by the Treaty, even if they would be nationals of a third country. However, the Directive only applies to EU citizens that have moved or resided in a Member State other than the one of which they are nationals and family members who accompany or join them. As contemplated by Dagan (2014), the consequence of such restricted scope of the Directive is that, unless an EU citizen has moved to another Member State to work and reside there for a certain period of time, he or she is not afforded with the “EU family permit” protective shield of the Directive. If such citizen would like to bring a third country national spouse, children or any other family member to live with him or her in the Member State, the immigrating family members would have to meet the domestic law criteria to be granted residence permit or visa to lawfully stay in the country. What follows is that two EU citizens living in the same Member State are treated differently in exercising their rights just because one has crossed an inter-state border in order to work in another Member State, while the other has not.
Blind eye to reverse discrimination
Despite the fact that it feels unfair, such reverse discrimination is permitted under EU law on the grounds that ‘purely internal situations’ with no inter-state element do not fall within CJEU’s jurisdiction. The Court upheld such standpoint in R v IAT and Surinder Singh ex parte Secretary of Home Department, 1992 and Shirley McCarthy v Secretary of State for the Home Department, 2011 decisions, where it clarified what is meant by ‘EU citizen moving to or residing’ in a Member State other than the one of his nationality. The Singh decision established the so-called ‘Surinder Singh rule’, which protects the right of a third country national to reside in the Member State of his or hers EU spouse, if the couple has previously obtained an EU family permit through exercise of the right of free movement and work in another Member State. The McCarthy case further defined the ‘movement’ requirement necessary to invoke the ‘Surinder Singh rule’. In that case, CJEU rejected to interpret the Directive to encompass situations where an individual with two Member States nationalities applies to have its spouse join her under EU family permit on the grounds of having an additional nationality of a Member State she is not residing in. Since this was not deemed to be an exercise of the right to free movement, the Court impliedly stated that an EU citizen wishing to invoke protection under the Directive has to physically cross the inter-state border for work purposes during reasonable periods of time, in order to remove the ‘purely internal situation’ label from its case. While in the Singh case the time span of two years of work in another Member State was deemed necessary to invoke EU law protection, in the subsequent Secretary of State for the Home Department v. Hacene Akrich, 2003 case six months was sufficient to make an entry claim trough the Surinder Singh route. Valcke (2013) claims that such developments moved some Member States (namely the UK) to change national immigration rules and require citizens using the Surinder Sing route to prove that they have 'transferred the centre of their life' to another Member State while working there. Such legislative action, ignoring the duration of the applicant’s work and stay, evidenced the ongoing trend of harshening the national immigration requirements behind the curtains of the EU family reunification rules.
Inconsistency in CJEU rulings
Contrary to the strict view of the Court on what amounts to an exercise of free movement right, decisions in Carlos Garcia Avello v Belgian State, 2003 and Gerardo Ruiz Zambrano v Office national de l’emploi, 2011 display lighter approach to the same issue. There CJEU went as far as to rule on situations involving no inter-state element, broadening the ratione materiae scope of the Directive by overruling the Member State’s law on national registry in favor of children with dual citizenship and, more strikingly, granting EU citizenship rights to third country nationals whose EU children never crossed the border. Justifying the decisions by the deterrence doctrine, which implies that family reunification obstacles could deter EU citizens from moving and thus impede the functioning of the internal market, as well as stating that the children would otherwise be ‘deprived of the genuine enjoyment of the substance of rights under EU citizenship’, CJEU introduced an element of unpredictability in its Directive-related case law.
The discrepancy was further deepened by the Murat Dereci and Other v Bundesministerium fűr Inneres, 2011 decision, where the Court held that adult claimants in various situations involving EU citizens as family members were not allowed to use the EU family reunification route. The Court reasoned that the enjoyment of EU citizens’ rights in the particular case could be exercised by simply moving to another Member State to be with family members, instead of exercising their rights from their home Member States. The decision was heavily criticized: Guild (2011) elaborates that Dereci judgement in fact indirectly imposes the requirement for EU citizens to move in order to exercise their EU family reunification rights. Moreover, the Court went even further by stating that it would consider an ECHR Article 8 family life claim only in situations where families cannot move to another Member State and exercise their rights 'in the usual way', practically forcing them to do so.
Two faces of the CJEU family reunification route
CJEU is obviously applying double standards when ruling on what represents a purely internal situation and how far the EU family reunification rules can go. The danger lying behind such an approach is evidenced by the rise of restrictive amendments to Member States national immigration laws, whose conditions for family permits, applicable in the absence of an inter-state element, are becoming increasingly harsh. UK is maybe the best example: as reported by Fraser (2017), the country has recently raised the minimum income rule for British citizens to bring non-EEA spouses to £18,600, rendering almost 40% of UK workers unable to unite with their families. This and other similar immigration policies, alongside current case law of the CJEU, send EU citizens a clear message: Falling in love is great! If you can afford it.
By Ivona Vidovic
This article has been published in Lawyr.it Vol. 5 Ed. 2. All references used can be found at the end of that issue.