CYIL vol. 12 (2021)

Jennie Edlund – Václav Stehlík CYIL 12 (2021) EU citizen. 56 The case concerned a Columbian national with sole custody of two minor EU citizen children born in Malaga. According to the Court, the mere fact that Mr Marin possessed a criminal record was not enough in order to be automatically refused the right to abode in Spain, as this could compel his children to leave the country and endanger their right as EU citizens to reside in the EU territory. 57 In Chavez-Vilchez and Others , the Court made a change from its earlier judgement and highlighted Article 7 and 24(2) and (3) of the Charter when determining the dependency between the EU citizen children and their TCNs’ mothers. 58 Consequently, any assessment of whether an EU citizen has a relationship of dependency with a TCN and whether the former is in fact under risk of being deprived of their EU citizenship rights has to be made in accordance with Articles 7 and 24(2) and (3) of the Charter, and in line with the corresponding provisions of the ECHR. To conclude, there are two ways to bring a case within the scope of EU law. The first and more legally straight forward one is to move to another Member State to trigger the application of the Citizenship Directive, or otherwise come within the protection of the free movement rules. The second way of bringing a case withing the scope of EU law is meeting the rather high threshold of Zambrano . In order to meet the current interpretation of the ‘genuine enjoyment test’, this requires that the applicant can demonstrate that one would have to leave the EU territory if the family members’ residence is not permitted. In order to assess whether the denial of a residence permit is depriving an EU citizen of the genuine enjoyment of the rights conferred by virtue of the EU citizenship status, the dependency between the TCN and the EU citizen has to be determined. This assessment has to be made in accordance with the Charter and corresponding provisions of the ECHR. According to the CJEU’s case-law, various TCNs’ family members of EU citizens have been recognized an EU right to reside. The residence rights are rationalized as necessary to avoid barriers to free movement for the EU citizens, which require that the EU citizen be able to live a ‘normal family life’. The EU case-law on family reunification shows that it is reflected by the principle of effectiveness and the increasing role of fundamental rights protection. 59 4. Drawing inspiration from EU Law As mentioned above, the ECtHR’s proportionality assessment is distorted by the statist assumption. 60 The multifactor balancing approach in family migration cases does not reflect a sharply outlined proportionality standard. Even though the ECtHR’s case-law allows the state an area of discretion the Court has not yet determined where to draw the line and when a state has overstepped its margin of appreciation. 61 The ECtHR’s use of unsound reasoning and multi-factor approach is in a contrast to the EU law’s clearer rights and more rigorous 56 Case C-165/14 Alfredo Rendon Marin v Administracion del Estado [2016] EU:C:2016:675. 57 Ibid, paras 88, 89. 58 Case C-133/15 H.C. Chavez-Vilchez and Others v Raad van bestuur van de Sociale verzekeringsbank and others [2017] EU: C:2017:354, para 70. 59 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 , 2018, vol. 3, p 1232. 60 See Costello, Cathryn, The Human Rights of Migrants and Refugees in European Law , Oxford Studies in European Law, 2016, Oxford University Press, p. 168. 61 See Spijkerboer, Thomas Structural Instability: Strasbourg Case Law on Children’s Family Reunion, European Journal of Migration and Law , 2009, 11.


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