In the joined case of Dereci, the Court of Justice of the EU (CJEU) was asked to consider various refusals of rights of residence for third-country national relations of EU citizens by the Austrian government, in view of the recent judgment in the matter of Zambrano.
Readers of the Bulletin may remember that in Zambrano, the Court found that as EU citizens, Mr Zambrano's children were entitled to "genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union". A refusal to grant Mr Zambrano a right of residence and a work permit in Belgium would deprive the children of any meaningful capacity to exercise this fundamental right.
The Court applied its finding in Zambrano that where there is no freedom of movement by EU citizens, their third-country national relations cannot be said to be "beneficiaries" of the Citizens' Directive 2004/38.
Turning to the question as to whether the EU citizens could nevertheless rely on their EU Treaty citizenship rights, the CJEU reiterated its finding in Zambrano that the Treaty prevented measures which would deprive EU citizens of the "genuine enjoyment of the substance of the rights conferred by virtue of that status". They held that this referred to situations which required the EU citizen to leave the EU.
In this regard, they warned that "the mere fact that it might appear desirable to a national of a Member State, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a Member State to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted".
They did accept that the question of whether the protection of family life and applicable fundamental rights required a right of residence was a matter to be considered on a case-by-case basis.
Click here to view the judgment.
Click here to view Brophy's Solicitors' immigration blog.