In 2012, the idea of European Union citizenship will have been in existence for two decades. Since its inception by the Treaty of Maastricht in 1992, it has not become any easier to explain: there is not only the content of the Treaties and Directives to consider but also the various rulings of the Court of Justice (CJ) from Martinez Sala to – more recently – Dereci. Through these cases the CJ has added content to this idea, often forcing the member states to accept the consequences of EU citizenship for access by non-nationals to welfare benefits.
Dereci crystallised a new flank in EU citizenship law. It brought older issues on ‘reverse discrimination’ that had arisen in cases such as Morson and Jhanjan together with more recent questions on residency for non-EU family members thrown up in cases such as Metock. The central question arising from this combination was whether EU law provided a right of residence for third country nationals (TCNs) seeking to settle in the EU with non-migrant Union citizens, that is EU citizens who continue to live in their home member state (stationary EU citizens).
Third country nationals are recognised in EU law – there are Directives passed specifically to regulate their situation. According to the EU fund for the ‘Integration of Third Country Nationals’ (INTI) a ‘third-country national’ is ‘any person who is not a citizen of the EU within the meaning of Article 17(1) of the Treaty’ – under current Article 20 TFEU only nationals of the member states are Union citizens. The purpose of this Fund is to promote the European agenda for legally residing third-country nationals, as laid out in the Europe 2020 Strategy and the Stockholm Programme. The premise underlying the substance of this agenda is slightly misleading, as it suggests that third country nationals are migrants new to the EU – the largest group of TCNs resident in the EU are perhaps the Turkish nationals and their descendents settled in Germany. As Germany prohibits dual citizenship and under Turkish law only citizens may own land, thousands of persons who speak German as a first language, have been educated and socialized in Germany and plan to retire there, carry Turkish citizenship; they are thus not EU citizens but third country nationals. Recent case law also highlights that TCNs are not per se foreign, new to the EU or asylum seekers: in Dereci, Mr Kokollari had spent 27 of his 29 years living in Austria.
The cases of Zambrano and Dereci appeared before the CJ in the form of questions sent by a national court under the Article 267 TFEU referral procedure. In both cases, the CJ was asked, inter alia, whether refusal of a residence permit for a TCN family member, where the EU citizen had not left her home state, was precluded by the rules on EU citizenship. In Zambrano, the Commission and the member states proposed an answer in the negative but the CJ decided otherwise. It repeated the decision in Gryzelczyk that citizenship is destined to be the fundamental status of nationals of the Member States and went further to state that as a result Article 20 TFEU itself contains power to shield stationary EU citizens from any national decisions which ‘have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union.’  Its answer to the Belgian court was therefore yes: as deportation of the parents would necessitate departure of the child EU citizens, in Zambrano refusal of the residence permit was precluded.
Zambrano gave rise to reactionary alarm in political circles and perhaps unsurprisingly led in some member states to a tightening of rules governing the acquisition of nationality. Such fears of a ‘run’ on citizenship were however not realized – there was no rush by third country nationals to marry or have children with EU citizens. In addition the CJ almost immediately demonstrated that it was not its intention to encourage abuse of EU law: McCarthy made it clear that beyond protection of this ‘fundamental status’ as EU citizens, EU law will not protect the interests of non-migrant EU citizens – even an interest as fundamental as family reunion – to the same extent as those citizens who further European integration by moving to another member state.
National authorities no doubt breathed a huge sigh of relief at the ruling in McCarthy, and may even have begun to smile again by the time of the decision in Dereci. Drawing from Zambrano, the CJ made it clear in Dereci that the desire of a stationary EU citizen to live with family for financial or emotional reasons is by itself too weak an argument to ‘support the view that the Union citizen will be forced to leave Union territory if such a right is not granted.’ The central question, as laid out in Zambrano, is whether the decision of the member state leads for the Union citizen concerned, to the denial of genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union. The key criterion determining the answer to this question is whether the EU citizen must leave not only the member state of which she is a national but also the ‘territory of the Union as a whole’ .
This test calls for a risk analysis: will refusal by the member state force the EU citizen to quit the EU? The EU citizen may choose to leave the EU but that is not the crux of this test. It is questionable what will constitute ‘force.’ In Dereci the CJ was of the opinion that none of the Union citizens were ‘forced’ to leave the Union  but this was ultimately left for the national court to determine. The further question of whether this undermined the right to family life was also to be answered by the national court by reference to human rights law: if family reunion is seen as a competence of the EU, then the review must be via Article 7 EU Charter on Fundamental Rights; otherwise examination in the light of Article 8 ECHR is called for .
Contrary to MS expectations and media speculations therefore, Zambrano established a high test for the derivation of residence rights by third country nationals from non-migrant EU citizens. Dereci arguably closed the door to the majority of such claims. In order to be successful, the non-migrant EU citizen would need to produce before her national court compelling evidence – beyond consideration of economic and emotional well-being – that her situation could only be addressed with the presence of the TCN family member and failing this she would be forced to leave the EU. Henceforth it seems that stationary Union citizens have to show that for them family reunion is essential not just desirable.
This functional view of family life seems to contradict the emerging concern in the EU with children’s rights and the international agenda on the importance of parenting. It is hard to imagine how national courts will approach this test: how can family reunion be evaluated as merely ‘desirable’ rather than ‘essential’? What are the key elements of each? Beyond the situations in Chen and Zambrano where a child EU-citizen has two third country national parents, there seem to be few scenarios that pass this test. Perhaps it may be satisfied in families where one partner is the primary breadwinner whilst the other cares for the children, as seen in Carpenter. In such situations a stationary EU citizen may well have to leave the EU if the TCN partner is refused residency.
As a result of this case law, we can identify different regimes of rights for third country nationals, going from less to more, according to whether they are derived from 1) an economically active non-migrant EU citizen; 2) an economically inactive non-migrant EU citizen 3) an economically inactive migrant EU citizen; or 4) an economically active migrant EU citizen. Only those related to persons in the fourth category will enjoy the full spectrum of EU citizenship rights as laid out in the Treaties and secondary legislation. Those falling into the first two groups will be subject to the new doctrine laid out by the CJ, as their situation is not covered by the Citizenship Directive, which under Art 3 (1) this covers only EU citizens who have left their own member state.
It might be interesting to consider what type of EU citizens could fall into these groups: economically active non-migrant EU citizens are likely to be those who are living and working in their own country, perhaps with caring responsibilities which mean that they cannot pursue opportunities abroad. If financially self-sufficient, they are likely to struggle to satisfy the test that TCN residence is ‘essential.’ Economically inactive non-migrant EU citizens may have the desire but lack the means (qualifications, skills, finances, independence, general access to the opportunities) required to support migration. Ironically, they may be in a better position to show that residence of a TCN relative is ‘essential’. Indeed, in this age of austerity if there is a possibility that a TCN relative will provide financial support that removes persons from the welfare bill, national authorities may be more welcoming.
Economically inactive migrant EU citizens may suffer from the same deficits as those above but they possess two important traits – courage and high tolerance of risk. They are rewarded under EU law as they will benefit from the more generous rules contained in the Citizenship Directive. This also applies to economically active migrant EU citizens: these are model Union citizens – they have the education and skills that will carry them not only around the EU but around the world. The global market is theirs, as are all the rights and benefits associated with EU citizenship law.
Viewed like this, two final observations can be made. First, one may wonder to what extent EU citizenship law has departed from its market origins: it seems that those with the most resources still enjoy the highest number of rights. Second, it seems that it is the employed, self-sufficient, stable yet stationary Union citizen who may gain the least under EU law. If so, is it a good idea for the CJ to alienate the majority of Union citizens in this way? There is also a race and gender issue here: I would contend that the majority of black female EU citizens will fall into this category – for myriad reasons, including weak protection from racial discrimination, these women are less likely to exercise their right to move freely. Unable to benefit from EU rights abroad, the CJ ruling now unfortunately potentially locks black women out of enjoying rights as EU citizens at home. For at least these reasons therefore, it might be necessary for the CJ to think about this difficult question again.