'Free' movement across EU member states

In Case C-456/12, O v Minister voor Immigratie, Integratie en Asiel (12 March 2014), the Court of Justice has returned to the question of when third-country nationals will acquire rights of residence in a member state of which their spouse is
a citizen.

EU citizenship law grants rights to third-country nationals only in order to support or encourage the exercise of rights by their EU-citizen partners. And EU citizenship law does not concern itself with ‘wholly internal situations’. So long as an EU citizen remains in his or her own country, EU law has nothing to say about the case.

It follows that EU law has nothing to say about the rights of an EU national and a non-EU national to live together in the EU national’s own member state, so long as no intra-Union movement has occurred.

Internal movement

However, all this changes once the EU national moves. For it has long been recognised that if an EU national goes to another member state, and then seeks to return home, the situation cannot be regarded as ‘wholly internal’.

Refusing any right for the couple to return to the EU national’s state of origin would discourage intra-EU movement. And so, by long-established case law, the returning EU citizen and his or her spouse may acquire rights even against the ‘home’ member state (see Case C-370/90 Singh [1992] ECR I-4265 and Case C-291/05 Eind [2007] ECR I-10719).

In O, the CJEU was asked to consider this case law in the context of directive 2004/38/EC. There were two cases. In the first, a Nigerian national, O, had lived in Spain for some years. For part of that time his partner, a Dutch national, lived with him, though never for very long: she had been unable to find work in Spain, and mostly lived in the Netherlands, travelling to Spain as a tourist to visit O.

In a second case, B, a Moroccan national, had lived for a time in Belgium. (He had been unable to live in the Netherlands because he was regarded as ‘undesirable’, having used a false passport.) While in Belgium, his partner (a Dutch citizen) had spent weekends with him, and they had married. Did these couples acquire the right to live together in the Netherlands?

Drawing distinctions

The CJEU drew a distinction based on the intensity and nature of the free movement rights exercised. On the one hand were cases where a Union citizen exercised ‘long-term’ rights granted under directive 2004/38, for instance as a worker, or a self-employed person, or a person of independent means. In such circumstances, if a couple’s relationship was formed or strengthened abroad, there was a right to return to the member state of origin.

But other rights accorded under the directive do not necessarily lead to such a conclusion. In particular, rights under article 6 (to travel for a short period to seek work), or to ‘receive services’ as a tourist, do not.

It is necessary that the couple’s residence in the foreign member state should have been ‘settled’ before any right to return arises.

The CJEU is not willing to roll back the basic principles of EU free movement law. But immigration is controversial, and it is equally reluctant to extend rights too broadly. Hence its distinction between the intense and prolonged exercise of core rights of movement (‘settlement’, which will produce a change in status vis-à-vis the citizen’s own member state of origin) and intermittent and marginal exercise of such rights, which will not. SJ

Key points:

- EU law does not generally give immigration rights in a citizen’s own member state, or for third-country nationals

- However, it will sometimes give rights to enable a family to stay together when they have lived as a family outside the EU citizen’s home member state

- Such rights only arise when the EU citizen has exercised core free movement rights outside the home member state: transient exercise of ‘marginal’ rights does not suffice

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