CYIL vol. 12 (2021)

Jennie Edlund – Václav Stehlík CYIL 12 (2021) right of residence in the home Member State of their EU citizen family member. 34 However, it also held that a refusal to allow such a derived right of residence may interfere with the EU citizen’s freedom of movement under Article 21 of the TFEU if the period of residence in another Member State has been ‘genuine’, i.e., in accordance with Article 7 of the Directive and subject to family life having been created or strengthened during that period. 35 Three months of residence in the host Member State in accordance with the conditions in Article 7 of Directive 2004/38 could then be used as a presumption of having created or strengthened family life, rather than as a precondition. 36 This interpretation is in line with the Court’s wording in O. and B. , in which it considered that “[r]esidence in the host Member State pursuant to and in conformity with the conditions set out in Article 7(1) of that directive […] goes hand in hand with creating and strengthening family life in that Member State”. 37 The Court found that short periods of residence, such as on weekends or during holidays, do not satisfy the condition set out in Article 7(1) and (2) of the Directive, i.e., for a period of more than three months. 38 The Ms. S and Ms. G case 39 concerned a refusal by the Netherlands of TCN’s family members of Dutch citizens where the family had never resided in another Member State, but where the EU national travelled from the Netherlands to other Member States for work. Again, the Court confirms that family members of such citizens have no derived right of residence in the home Member State under the Directive. 40 The Court refers to Carpenter 41 and admits that such a right of residence should be granted where it is necessary to guarantee the EU citizen’s effective exercise of free movement rights under Article 45 of the TFEU. 42 A circumstance in the case that may be a relevant factor to be taken into account by the referring court is that the TCN takes care of the EU citizens’ children. 43 The cross-boarder requirement in order to bring a case within the scope of EU law made the legal position of static EU citizens troublesome and was criticized among scholars. 44 The Grand Chamber ruling in Zambrano was a response to this criticism. The Zambrano family fled Columbia and sought asylum in Belgium. Their asylum application was refused but they were granted a precarious resident permit based on a non-refoulement clause. They remained in Belgium and had two more children who gained Belgian nationality. In order to establish a right of residence for the father Ruiz, the children sought to assert their right as EU citizens. The ECtHR held that deprivation of the father’s right to reside and right to work was such as to deprive the EU citizen children ‘of the genuine enjoyment of the substance of the rights 34 Ibid, para 36. See also Case C40/11 Iida [2012] ECR, para 66, and Case C87/12 Ymeraga and Ymeraga- Tafarshiku [2013] ECR, para 34. 35 Case C-456/12, O. and B. v. Minister voor Immigratie, Integratie en Asiel, para 54. 36 Kroeze, Hester, Distinguishing between use and abuse of EU free movement law: Evaluating use of the “Europe- route” for family reunification to overcome reverse discrimination, European Papers , vol. 3, 2018, p. 1238. 37 Case C-456/12, O. and B. v. Minister voor Immigratie, Integratie en Asiel, para 53. 38 Ibid. para 59. 39 Case C-457/12, S. and G. v. Minister voor Immigratie, Integratie en Asiel . 40 Ibid. para 34. 41 Case C-60/00 Carpenter [2002] ECR I-6279. 42 Case C-457/12, S. and G. v. Minister voor Immigratie, Integratie en Asiel, para 40. 43 Ibid. para 43. 44 See NIC SHUIBHNE, N. Free Movement of Persons and the Wholly Internal Rule: Time to Move On? 39 (4) 2002, Common Market Law Review and Spaventa, E. Seeing the Wood despite the Trees? On the Scope of Union Citizenship and its Constitutional Effects 45 (1) 2008, Common Market Law Review .


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