The seminal decision in Zambrano relied upon Article 20 TFEU as a source of residence rights independent of secondary legislation. The CJEU has so far not been willing to extend its application, and Alopka was another failed attempt to rely upon Article 20 TFEU.
Alopka concerned a Togolese national with French children (born in Luxembourg) and a dispute regarding a refusal to grant Ms Alopka a right of residence and an order for her to leave Luxembourg. Ms Alopka and her children were reliant on the State although she had been offered a job, which her lack of residence and work permits prevented her from commencing.
The Advocate General’s Opinion
Advocate General Mengozzi differentiated the case from Zambrano as the Union citizen children here did not hold the nationality of the Member State of residence, and therefore fell within the scope of Article 3(1) of Directive 2004/38. Unlike in Chen, Ms Alopka did not possess sufficient resources for herself and her children so as not to rely on Luxembourg’s social security system. AG Mengozzi considered that ‘sufficient resources’ for the purpose of Article 7(1)(b) of the Directive were capable of being satisfied by the definite prospect of future resources which would stem from the offer of a job of unlimited duration. He suggested that the referring court should, in principle, examine the job offer with a view to determining whether the Union citizen children would have sufficient resources under the Directive should Ms Alopka commence work.
The Advocate General did not consider that the Charter of Fundamental Rights could result in the conditions of residence under the Directive being relaxed or disregarded either in order to protect a child’s best interests (Article 24) or due to respect for family life (Articles 7 and 33 of the Charter), as this would mean disregarding the limits to Article 21 TFEU.
Following Iida, where the CJEU interpreted the right derived by a national of a non-Member State who is a non-dependent direct relative in the ascending line of a Union citizen child as falling outside the scope of Directive 2004/38 and being based solely on Article 21 TFEU, the Advocate General suggested that if the referring court were to find that Ms Alopka’s children satisfied the conditions laid down in Article 7(1)(b), then their mother could derive a right of residence based on Article 21 TFEU, rather than from the Directive.
AG Mengozzi did not consider Article 20 TFEU to give rise to a right of residence: as French children, Ms Alopka’s twins enjoy the unconditional right to enter and remain in France, so Ms Alopka, as mother and primary carer would derive a right of residence. Therefore, there would be no reason for the family to be compelled to leave the territory of the EU, and the substance of the children’s rights as Union citizens would not be affected.
The Court’s Judgment
The CJEU emphasised that the residence rights of third-country nationals generally fall within the scope of a Member State’s competence, rather than under EU law. Ms Alopka was not a dependent relative in the ascending line, and was not a beneficiary under Article 3(1) of Directive 2004/38.
In interpreting Article 7(1)(b) of the Directive, the CJEU found that to ‘have’ sufficient resources means that these resources are available to the Union citizens, regardless of origin (Chen). Unlike AG Mengozzi, the Court did not consider whether the promise of future earnings meant sufficient resources for the Union citizen children to ‘have’, but instead left this as a question of fact for the referring court. If the conditions of Article 7(1) of the Directive were not satisfied, Article 21 TFEU would be interpreted as not precluding Luxembourg from refusing a right of residence to Ms Alopka.
If Article 21 TFEU did not preclude a refusal of a right of residence, in exceptional circumstances Article 20 TFEU could grant a right of residence if the effectiveness of the Union citizenship of the children were otherwise to be undermined. The Court echoed AG Mengozzi in stating that the children could reside in France, and Ms Alopka could reside with them, though the question was left to the referring court to determine whether on the facts the family would be forced to leave the territory of the European Union altogether should Luxembourg not grant a residence permit.
The Zambrano doctrine remains difficult to rely upon, and it is not surprising that the CJEU did not extend it on the facts of Alopka. McCarthy, Dereci, Ymeraga and Iida before it suggested this would be the case, and it is likely that the substance of the rights of the Union citizen children would not be adversely affected if they were no longer able to reside within Luxembourg, but instead moved to France.
AG Mengozzi’s approach to sufficient resources is of greater interest than the non-extension of Zambrano: unlike in Chen, where the mother of the Union citizen child had sufficient resources and comprehensive sickness insurance without having to work, Ms Alopka had the offer of a job. AG Mengozzi did not consider that this could be ignored, as it would be contrary to the objectives of the Directive to restrict a Union citizen’s enjoyment of their right to free movement. If an offer for a job of indefinite duration can potentially count as sufficient resources, a strange circularity in reasoning arises. Without the job, Ms Alopka could not demonstrate that her children had sufficient resources (let alone health insurance) to qualify for residence rights under Article 7(1)(b). Without her children qualifying for residence under Article 7(1)(b), Ms Alopka could not derive a right of residence under Article 21 TFEU, and hence would not have a right to reside in or work in Luxembourg, so job offers would be nullified as she could not legally take up employment. The Advocate General’s approach left the ultimate decision to the referring court, but this approach has not traditionally been taken in assessing sufficient resources in the UK courts.
The referring court invited the CJEU to consider the effect of the Charter of Fundamental Rights on residence rights, but the Court declined. Article 51(2) of the Charter states that it “does not extend the field of application of Union law” and there are political reasons for the Court to tread carefully. It is still to be hoped that there will be cases in which the Charter helps the CJEU make its decisions in relation to residence rights, as finding a link between residence derived from Union citizenship and fundamental rights could make the application of rights of residence derived from Article 20 TFEU more coherent. The Zambrano judgment also failed to engage with the Charter, where fundamental rights arguments would have been better placed to be relied upon than in Alopka. On the facts, the Court in Alopka was unlikely to start weakening the restrictions to Article 21 TFEU within secondary legislation due to the Charter, and the family were unlikely to have to leave the EU, so Article 20 TFEU was not likely to provide rights of residence.