CYIL vol. 12 (2021)

CYIL 12 (2021) The Influence of EU Law in ECtHR’s Case-law on Family Migration of EU citizens an EU right to reside. The residence rights were rationalized as necessary to avoid barriers to free movement for EU citizens, which required that the EU citizen be able to live a “normal family life”. In most cases the CJEU refers to both Article 7 of the Charter of Fundamental Rights of the EU (CFR) and Article 8 of the ECHR and its interpretation by the ECtHR. Carpenter was one of the first cases where CJEU concluded that the right to family life was violated. In this case, where the deportation of the applicant, who had a family life in the UK and cared for her husband’s children from a previous marriage, could not be regarded as proportionate to the objective pursued by this measure. Article 8 of the ECHR was used as an argument to support the right of residence. The Court held that the decision to deport Mrs Carpenter did not strike a fair balance between the competing interests. Even though Mrs Carpenter had broken the immigration laws of the UK by not leaving the country prior to the expiry of her leave to remain as a visitor, her conduct was not the subject of any other complaint that could give cause to fear that she might in the future constitute a danger to public order or public safety. Moreover, the CJEU found it clear that Mr and Mrs Carpenters marriage was genuine, and that Mrs Carpenter continued to lead a true family life in the UK, in particular by looking after her husband’s children. Due to those circumstances, the decision to deport Mrs Carpenter constituted an infringement which is not proportionate to the objective pursued. The Court held that Article 49 (of the EC- Directive 73/148/EEC) was to be read in light of the fundamental right to respect to family life. 30 In the Metock case 31 the CJEU held that there is a right for citizens of the Union who are exercising their free movement rights in a host state to be joined or accompanied by TCNs’ family members irrespective of where they are coming from (i.e., inside or outside the EU) and of the legality of their residence in another Member State. The spouses’ statuses as failed asylum seekers were irrelevant to their EU rights as TCNs’ spouses of EU citizens. In the Akrich case 32 a British-Moroccan couple tried to legalize the residence status of the Moroccan spouse. To achieve this, the couple moved to Ireland where the British spouse took up a temporary job, entitling the Moroccan partner to a residence right. When they wanted to return to the UK, they admitted that the only reason they moved to Ireland was to acquire a residence right for the Moroccan spouse on the basis of EU law. This case states that the use of free movement law to acquire the rights that are attached to it cannot be qualified as abuse, as long as the use of these rights is effective and genuine. This criterion is derived from the case-law on free movement of workers, which is laid down in Article 45 of the TFEU. In subsequent judgments of the Grand Chamber of the CJEU, the Court has further clarified the extent to which TCNs who are family members of EU citizens can establish a right of residence in their EU family member’s home Member State. The Mr. O and Mr. B case 33 is a joint case which concerned a refusal by the Netherlands to grant a right of residence to Mr O, a Nigerian national and Mr M, a Moroccan national. They were both family members of Dutch citizens who had spent short periods with their family members in other Member States on weekends and during holidays. The Court held that Article 21 of the TFEU and Directive 2004/38/EC does not confer on TCNs a derived 30 Case C-60/00 Carpenter [2002] ECR I-6279, §§ 41–45. 31 Case C-127/08 Metock [2008] ECR I-6241. 32 Case C-109/01 Secretary of State for the Home Department v. Hacene Akrich [2003] ECR I-03375. 33 Case C 456/12 O. and B. v. Minister voor Immigratie, Integratie en Asiel .


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