CYIL vol. 12 (2021)

Jennie Edlund – Václav Stehlík CYIL 12 (2021) individual and the community as a whole in all cases, 20 the central criterion used by the Court to determine whether the state is under positive obligation to allow entry is whether family life is possible to be exercised in the country of origin of the foreign national, the so called ‘elsewhere test’. In admission cases the Court assumes no interference with the right to respect for family life, therefore the justification test of Article 8(2) is not triggered. 21 This is based on the assertion that by refusing entry, a state is not interfering in established family life. Only in a few cases has the Court found the state to have positive obligations. 22 The elsewhere test implies that an individual may have to leave their own country in order to enjoy family life with a law-abiding non-national spouse and/or dependent child. The elsewhere criterion can be legitimate in situations where the non-national poses a threat to the community, but it is difficult to defend it where the case is based on immigration policy alone. A fair balance has not been struck between the two options, namely voluntary exile or termination of family life. 23 3. The CJEU approach on family reunification in immigration cases Third-Country Nationals’ right to entry and reside in the territory of EU Member States has been developed through different EU regulations. In order to know under what regulation the TCN falls, the sponsor’s/insiders status has to be clarified. This paper will focus on insiders who are EU citizens. 24 The reason for only focusing on TCNs’ family members of insiders who are EU citizens is twofold. Firstly, to include all insiders and the different EU instruments regulating family unification would not be feasible in this paper. Secondly, TCNs’ family members of EU citizens are provided with greater protection under EU law compared to TCNs’ family members protected under the ECHR. Therefore, cases where TCNs’ family members of EU citizens can bring their case within the scope of EU law in comparison with cases where TCNs’ family members can’t bring their case within the scope of EU law are very interesting and relevant to compare. In order for EU Citizens to bring their situation within the scope of EU law requires a transnational element to activate the free movement provisions, or according to Zambrano case-law, 25 “establishing an interference with the genuine enjoyment of the substance of the rights of EU Citizenship”. 26 Family reunification for migrant EU citizens is a right and in Carpenter , 27 Baumbast , 28 and Chen 29 the CJEU recognized various TCNs’ family members 20 ECtHR Gul v. Switzerland , Judgement of 29 February 1996, Application No. 23218/94, para 38. 21 Connelly, A.M. Problems of Interpretation of Article 8 of the European Convention on Human Rights, 35 International and Comparative Law Quarterly , 1986, p. 572. 22 ECtHR Sen v. Netherlands , Judgement of 21 December 2001, Application No. 31465/96 and ECtHR Tuqabo- Tekle v. the Netherlands , Judgement of 1 December 2005, Application No. 60665/00. 23 Draghici, Carmen, The Legitimacy of Family Rights in Strasbourg Case Law ‘Living Instrument’ or Extinguishing Sovereignty? Hart Publishing, Oxford and Portland, 2017, Oregon, p. 388. 24 TFEU Articles 20, 21, and 45, Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. 25 Case C-34/09 Gerardo Ruiz Zambrano v Office national de l’emploi (ONEM) [2011] ECR I-1177. 26 Ibid, para 45.

27 Case C-60/00 Carpenter [2002] ECR I-6279. 28 Case C-413/99 Baumbast [2002] ECR I-7091. 29 Case C-200/02 Chen [2004] ECR I-9925.

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