CYIL vol. 12 (2021)

CYIL 12 (2021) The Influence of EU Law in ECtHR’s Case-law on Family Migration conferred by virtue of their status as citizens of the Union’. 45 The reason for this motivation was the Court’s assumption that denying the father a right to reside and work would lead to a situation where the children would have to leave the territory of the Union in order to accompanying their parents. 46 In other words, the assumption seems to be that without the support of the TCN’s family member, the EU citizen would be forced to leave for practical reasons, but not necessarily legal ones. 47 This was also the assumption in Dereci . 48 which is a joined case concerning five different TCNs with family relationship with Austrian nationals who were residents in Austria who didn’t exercise their right to freedom of movement within the EU. In this case the Court notes that ‘the situation of a Union citizen…who has not made use of right to freedom of movement cannot, for that reason alone, be assimilated to a purely internal situation’. 49 The Court leaves the issue of whether the current situation falls within the scope of EU law to be determined by the referring court, in line with their evaluation of whether or not the family members of the applicants were deprived of the genuine enjoyment of the substance of the rights by the decision of the Bundesministerium. 50 Dereci emphasizes the ‘exceptional’ nature of the Zambrano residence right 51 and that the ‘genuine enjoyment’ test will be met only when the EU citizen has, in fact, to leave not only the territory of the Member State of which they are a national but also the territory of the Union as a whole. 52 However, Dereci confirms that breadth of Zambrano as a residual protection for residence rights and doesn’t support the view in McCarthy 53 , suggesting that the Zambrano ruling would only come to the assistance of minors. 54 In order to assess whether an EU citizen would be obliged to leave the EU territory, the CJEU introduced the concept of dependency regarding the relationships between the EU citizen and the TCN’s family member. In the joined O.S and L case 55 the Court concluded that Article 20 of the TFEU (citizenship) did not preclude a Member State from refusing the TCN’s stepparent of a Union citizen a residence permit, provided that the refusal did not entail the denial of the genuine enjoyment of the Union citizen’s enjoyment of rights. States must determine the level of dependency between the family members and this assessment needs to take into account any legal, financial, or emotional ties. According to the Court, it is for the applicants to claim that such ties practically exist; however, it is the Member States’ responsibility to make such inquiries in order to make a proper assessment. In the case of Rendon Marin , the CJEU held that the existence of a criminal record alone is not enough to refuse a residence permit to a TCN who is the sole carer of a minor 45 Case C-34/09 Gerardo Ruiz Zambrano v Office national de l’emploi (ONEM) [2011] ECR I-1177, para 42, citing Case C-135/08 Rottmann [2010] ECR-I-1449, para 42. 46 Ibid, para 44. 47 Costello, Cathryn, The Human Rights of Migrants and Refugees in European Law , Oxford Studies in European Law, 2016, Oxford University Press, p. 136. 48 Case C-256/11 Murat Dereci and Others v. Bundesministerium für Inneres [2011] ECR I-11315. 49 Ibid, para 61. 50 Ibid, paras 70–72. 51 Ibid, para 40. 52 Ibid, para 66. 53 Case C-434/09 Mc Carty v. Secretary of State for the Home Department [2011] ECR I-03375. 54 Costello, Cathryn, The Human Rights of Migrants and Refugees in European Law , Oxford Studies in European Law, 2016, Oxford University Press, p. 137. 55 Cases C-356/11, C-357/11 O, S v Maahanmuuttovirasto, Maahanmuuttovirasto v L [2012] EU:C:2012:776.

169