Rights of residence of TCN family members within a Union citizen’s home state: Comment on Cases C-456/12 O and B and C-457/12 S and G, Judgment of the Court (Grand Chamber) 12 March 2014

photoCatherine Taroni


Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely grants qualifying Union citizens rights of residence in Member States other than their own, and allows family members to derive rights of residence from the Union citizen.  As McCarthy showed, this does not apply within a Union citizen’s home state.  It is possible for family members to derive rights of residence from the Treaty within a Union citizen’s home state, and this is what the Court considered in C-456/12 O and B and C-457/12 S and G.

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Case Comment: C-423/12 Reyes

Adrienne Yong

The recent developments in EU citizenship have been admittedly fairly quiet in comparison to the uproar after the ever controversial Zambrano case where the interpretation of citizenship provisions under Article 21 TFEU went astray. In the case of Reyes, the question concerns a clarification on the Directive 2004/38 and the meaning of ‘dependant’ under Art 2(2)(c). The case concerns third country nationals (TCNs), the cases of which have dominated the scene since Zambrano. The persistence of claimants in this respect is thus admirable, suggesting that Zambrano and indeed, the Directive itself, left a lot to be desired. This persistent pattern is to be received positively, representing good opportunities to clarify confusing positions.


Ms. Reyes, a Filipina, was brought up by her grandmother in the Philippines when she was three years old after her mother left to work in Germany to support her family. Ms. Reyes’ mother is now a German citizen.

Throughout her life, Ms. Reyes never held a job but similarly never relied on the Philippines’ social benefits. Her mother periodically sent money to support her, her sisters and her grandmother. Ms. Reyes’ mother moved to Sweden to be with a Norwegian man in 2009, whom she married mid-2011. He received a retirement pension which was also sent to the Philippines for Ms. Reyes’ benefit. After moving, Ms. Reyes’ mother did not work, living on her husband’s retirement.

When Ms. Reyes entered the Schengen area early 2011, she was refused a residence permit as dependent family member by the Swedish Migrationsverket for being unable to prove the funds sent by her mother and her partner were to sustain her life in the Philippines (in the form of basic needs, lodging, healthcare) or that any home state public funds were supporting her. This was due to the fact that she was fully dependent on her grandmother and the Migrationsverket decided this indicated she was not dependent on her mother in Sweden.

The appeal by Ms. Reyes to the Migrationsverket was dismissed because whilst they agreed her basic needs were supported by her mother’s funds, there was not enough proof that she would be able to survive without dependence on her mother and partner if she were to remain in her home state. They argued that she was still young, had qualifications from there, lived there, and still had relatives there. Her mother’s choice to support her was not determinative in the decision that Ms. Reyes’ was not dependent.

The first question referred thus aims to clarify if Art 2(2)(c) Directive 2004/38 – the definition of a dependent family member – requires that those over 21 years old must prove that they had searched for employment and failed OR sought support from public funds and it was also not possible before being considered a family member. The second asks if this family member can still be considered a ‘dependant’ if they are considered to be fairly well qualified to get employment AND intends to find a job in that Member State. This would nullify the conditions under which they would be a dependent relative. Continue reading

Case Comment: C-523/11 and C-585/11 Prinz and Seeberger – AG Sharpston strikes again

Adrienne Yong

Yet another chapter of the European citizenship saga sought clarification by AG Sharpston in the Prinz and Seeberger Opinion delivered last week on February 21, 2013. Concerning one of the most prevalent categories of citizens claiming rights under Arts 20 and 21 TFEU – students – Prinz and Seeberger discusses a classic situation that has pervaded the over 20 years of Union citizenship development. Effectively, AG Sharpston aims to explicate the notion of proportionality in citizenship, which has for years escaped valid clarification. She discusses the different strands of objectives of integration, with more substantial meaning than it would appear at first. Continue reading

Case Comment: Regina (Preston) v Wandsworth London Borough Council, CA [2012] EWCA Civ 1378

Does loss of the right to vote for residing more than 15 years outside the UK violate EU freedom of movement?

Bianca Venkata

On 25 October 2012 the Court of Appeal handed down a judgment ([2012] EWCA Civ 1378) on whether UK laws restricting the vote to right after 15 years of non-UK residence violated EU freedom of movement.

The case is interesting as not only is it the first time the compatibility of the 15 year rule with freedom of movement has been tested, it also discusses the extent national voting rules fall into member states’ competence. Continue reading

ABuse of (Home Office) Power

Dr. Iyiola Solanke

The case of AB v Home Office raises the question of whether the doctrine of state liability is robust enough to remedy situations where national officials misapply EU law. The case concerned Ms C, a Bolivian national, who entered the UK as a student in 2006. Soon after arriving she met Mr B, a Swedish citizen who had lived in the UK since about 1996. Their daughter was born in London in May 2007: as the baby girl was given Swedish citizenship, she was like her father a migrant Union citizen. Ms C’s student visa expired in January 2008: in March 2008 she applied to the Home Office for an EEA residence card. The ground cited was the existence of a durable relationship with Mr B, a Union citizen and at that time a migrant EU worker. The events that befell them are noteworthy for many reasons but this note will focus on just two: the rights of third country nationals who are not ‘family members’ under EU citizenship law and the limits of the remedy of state liability

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Matrix seminar – EU law and immigration

Ten days ago Aidan and Raza Husain QC spoke at the last of Matrix’s series of evening seminars on EU law as it applies to domestic practice areas.  The session was devoted to immigration law.  For those who are interested, here is Aidan’s paper on Free movement of EU citizens within the EU.  As we all know, the concept of citizenship has been explored in numerous judgments of the CJEU since the concept was introduced into EU law by the Treaty of Maastricht.  Aidan discusses the rights held by EU citizens with particular reference to the Charter of Fundamental Rights, touching on various topical issues including prisoner voting rights (which, as he makes clear, is not just an ECHR issue) and access to legal aid.

Watch out for the second paper, on EU asylum and refugee status law, next week.