FREE MOVEMENT OF EU CITIZENS WITHIN THE EU

1. INTRODUCTION

1.1 The right of EU nationals to move freely between the Member States is absolutely central

to the EU project. With the foundation of the European Union and the increasing reach of

its influence over domestic legal systems, the concept of European citizenship, the modern

manifestation of free movement of persons, is of prime importance. The implementation of

this right within the UK necessitated huge changes not only to the law governing

immigration (so as to permit the entry and residence of those endowed with EU law rights

of free movement), but also to a diverse range of other rules and regulations – such as

those governing social security benefits and student grant allocation – so as to guarantee

that EU nationals are treated equally once they have entered the UK. The status of EU

citizen looks certain to provide the impetus for the removal of many of the remaining

vestiges of discrimination against nationals of other Member States. But this deregulation to

facilitate the readier cross-border movement of EU nationals within the borders of the EU

may be considered as only the 'first circle' of the EU law concerning the free movement

of people.

1.2 The regulation of non-EU nationals who migrate to the EU and take up economic roles

may be consider to form the 'second circle' of EU Treaty free movement law or EU

migration law. Classically the position of 'economic migrant' to the EU was occupied by

the so-called Gastarbeiter, primarily of Turkish origin, who moved in significant

numbers to Germany from the 1960s on. Other EU Member States have attracted foreign

workers from other non-EU countries. In the case of France and the UK, particular links

exist with those now independent countries which formerly were taken up in the colonial

ventures or imperial projects of these nations: thus France has a large community of

residents emanating from the Maghreb and sub-Saharan Francophone Africa; while the

UK has significant connections with communities of people having their immediate

origins in the countries of south-east Asia, east and west Africa, and Australasia.

Following the collapse of the Soviet bloc and prior to their admission as full Member

States of the EU, economic migration from the States of central Europe (Mitteleuropa)

was of concern to the EU legislature and to some of the existing Member States, anxious

about an influx of Polish plumbers,1 or Romanian builders or Hungarian musicians

threatening to take, say, 'German jobs from German workers', or 'French contracts from

French contractors'. The primary instrument of this branch of EU migration law was via

the conclusion of Association Agreements between the EU and the States of origin of

these 'guest workers'.2 But further legal issues arise when the originally foreign 'guest

workers' and their families stay on in the EU and become, effectively, permanent settlers.3

1.3 Of increasing importance in recent years has been the large number of people crossing the

external borders of EU to seek protection from persecution or endemic violence, whether

State-sponsored or resulting from State failure. The 'third circle' of EU law concerned

with the movement of peoples is, therefore, EU asylum law. But because EU asylum law

is concerned with admission to a transnational area which aspires to the abolition of any

official marking or policing of its internal national boundaries, it can properly be

understood only against a background of understanding the development of the principles

of free movement for EU citizens, and of rights of residence of those formerly known in

EU-speak as 'extra-Communitarians' (though perhaps now more properly referred to as

'extra-Unionists').

1 See, eg, Case C-458/08 Commission (supported by Poland) v Portugal, 18 November, [2010] ECR I-nyr, on the infringement by Portugal of the free movement of services provisions of Art 56 TFEU in the construction sector by requiring official national authorisation in order to carry on activity in that sector. Compare with Joined Cases C-307/09 to C-309/09 Vicoplus SC PUH and others v Minister van Sociale Zaken en Werkgelegenheid 12 February, [2011] ECR I-nyr at paras 33-4:

‘[L]egislation, by which, during the transitional period provided for in Chapter 2, paragraph 2, of Annex XII to the 2003 Act of Accession, the hiring-out, within the meaning of Article 1(3)(c) of [the Posted Workers] Directive 96/71, of Polish nationals in the territory of that State continues to be subject to the obtaining of a work permit, is compatible with Articles 56 TFEU and 57 TFEU.  Such a finding also necessarily follows from the purpose of that provision, which is intended to prevent, following the accession to the European Union of new Member States, disturbances on the labour market of the existing Member States due to the immediate arrival of a large number of workers who are nationals of those new States …’

2 See Joined Cases C-300/09 & C-301/09 Staatssecretaris van Justitie v Toprak and Oguz, 9 December, [2010] ECR I-nyr, where the CJEU confirmed that the 'stand-still' provisions of EEC–Turkey Association Agreement meant that a national provision making it more difficult for Turkish workers to obtain an independent residence permit than had been the practice since 1980 was unlawful.

3 See, eg, Case 12/86 Demirel v Stadt Schwäbisch Gmund [1987] ECR 3719, concerning the EU Association Agreement with Turkey. For more recent decisions interpreting this agreement, see, eg, Case C-462/08 Bekleyen v Land Berlin, 21 January, [2010] ECR I-nyr; and Case C-92/07 Commission v The Netherlands, 22 April, [2010] ECR I-nyr.

2. THE CONCEPT OF THE EU CITIZEN IN THE EU TREATIES

2.1 Article 9 of the Treaty on European Union (TEU) provides that:

“Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship”.

No discrimination on grounds of (other) EU nationality

2.2 Article 18 of the TFEU sets out the general prohibition of discrimination on grounds of

nationality 'within the scope of application of the Treaties' and provides a legal basis for

the EU legislature to make 'rules designed to prohibit such discrimination'.

EU citizenship rights

2.3 Article 20(1) TFEU re-confirms the concept of EU citizenship which is automatically

afforded to and supplements the national citizenship of 'every person holding the

nationality of a Member State'.

2.4 While the conferring on individuals of rights associated with national citizenship remains

wholly within the exercise of the sovereign power of the Member States,4 the withdrawal

of national citizenship rights or status once conferred may bring matters within the ambit

of EU law (and the supervision of the CJEU).

2.5 Thus in Rottmann v Bavaria5 the Grand Chamber of the CJEU found that as a result of the

establishment of the concept of EU citizenship a Member State’s power – in relation to its

own nationals - to lay down the conditions for the possible loss or deprivation of that of

nationality now required to be exercised with due regard to the principles of EU law.

The fact that such issues fell centrally within the legal competence of the Member States

did not preclude the concurrent application of EU law in this area. Because the exercise

of that Member State power against its own national also directly affected the rights

conferred on that Member State’s national qua EU citizen, the matter was held to fall

within the ambit of EU law. Among the rights conferred by EU citizenship are:

4 See for example Case C-145/04 Spain v UK [2006] ECR I-7917 in which the Grand Chamber confirmed the lawfulness of the UK conferring voting rights for the European Parliament on residents of Gibraltar who were not EU citizens.5 Case C-135/08 Rottmann v Bavaria 2 March [2010] ECR I-nyr, [2010] QB 766.

a) the right to move and reside freely within the territory of the Member States

(Article 20(2)(a) TFEU). In Zambrano v Office national de l’emploi (ONEm)6 the

Grand Chamber of the CJEU held that Article 20 TFEU was to be interpreted as

meaning that it precluded a Member State (Belgium) from refusing a third country

national (upon whom his minor children, who were Belgian and hence European

Union citizens, were dependent) a right of residence in Belgium as the Member State

of residence and nationality of those children, and from refusing to grant a Belgian

work permit to that third country national, in so far as such decisions deprived those

children of the genuine enjoyment of the substance of the rights attaching to their

status of European Union citizens. Thus the Grand Chamber interpreted the EU

citizenship right set out in Article 20(2)(a) TFEU ‘to move and reside freely within

the territory of the Member States’ as conferring — as a matter of EU law — on each

and every EU citizen a primary right of residence within the Member State of which

the EU citizen was also a national, and from which the EU citizen’s relatives could

also derive secondary rights of residence within that State without need for any prior

exercise of EU free movement rights to other Member States. 7 Article 21(2) TFEU

gives the legal basis for the EU legislator 'to adopt provisions with a view to

6 Case C-34/09 Zambrano v Office national de l’emploi (ONEm) 8 March [2011] ECR I-nyr (at paragraphs 41-2):

‘[C]itizenship of the Union is intended to be the fundamental status of nationals of the Member States. … In these circumstances, Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union.’

7 See now Case C-256/11 Murat Dereci and others v. Bundesministerium für Inneres 15 November [2011] ECR I-nyr which concerned the situation of five applicants all third country nationals wishing to reside in Austria with his/her Austrian family member. None of the applicants’ family members had exercised their right to free movement within the EU. The CJEU Grand Chamber observed:

“68. ..[T]he mere fact that it might appear desirable to a national of a Member State, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have nationality of a Member State to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted.’

and held that

‘European Union law and, in particular, its provisions on citizenship of the Union, must be interpreted as meaning that it does not preclude a Member State from refusing to allow a third country national to reside on its territory, where that third country national wishes to reside with a member of his family who is a citizen of the Union residing in the Member State of which he has nationality, who has never exercised his right to free movement, provided that such refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union, which is a matter for the referring court to verify.’

facilitating the exercise' of the right ‘to move and reside freely within the territory of

the Member States’.8

b) the right to vote and to stand as candidates in elections to the European

Parliament and in municipal elections 9 in their Member State of residence, under the

same conditions as nationals of that State (Article 20(2)(b) TFEU). In Eman and

Sevinger v Netherlands 10 the Grand Chamber of the CJEU held that as a matter of EU

law: (i) EU citizens had a right to vote in elections to the European Parliament

regardless of whether they were residing in another Member State of which they are

not nationals (ii) and that this right could be prayed in aid and directly relied upon by

EU citizens against the Member State of which they were nationals to prevent unequal

treatment by that Member States among its own nationals on the issue of this right to

vote.11 Separately, Article 22 TFEU provides the legal basis for a unanimous Council,

8 Compare however Case C-434/09 Shirley McCarthy v Secretary of State for the Home Department 5 May, [2011] ECR I-nyr, where a five judge chamber of the CJEU held that Article 21 TFEU is not applicable to a Union citizen who has never exercised his/her right of free movement, who has always resided in a Member State of which s/he is a national and who is also a national of another Member State, provided that the situation of that citizen does not include the application of measures by a Member State that would have the effect of depriving him/her of the genuine enjoyment of the substance of the rights conferred by virtue of his/her status as a Union citizen or of impeding the exercise of his/her right of free movement and residence within the territory of the Member States.9 See McGeoch v Lord President of the Council [2011] CSIH 67; [2011] CSOH 65, a judicial review in Scotland of the compatibility with the claimant's EU law citizenship right to vote in UK ‘municipal elections’ of the decision of the Electoral Registration Officer to refuse the claimant's application to be included on the Register of Local Government Electors on grounds of his statutory disenfranchisement as a convicted prisoner under and in terms of s 3 of the Representation of the People Act 1983. 10 Case C-300/04 Eman and Sevinger v Netherlands [2006] ECR I-8055. As has been noted by Professor Jo Shaw in ‘The Political Representation of Europe’s Citizens’(2008) 4 European Constitutional Law Review 162 at 184–85, 186:

‘[T]he creation of a Europe-wide personal status of ‘citizen of the Union’ can result in quite substantial intrusions into the national electoral sovereignty of the member states. What is notable is the willingness of both the Court of Justice and the Advocate General [in Case C-300/04 Eman and Sevinger v Netherlands [2006] ECR I-8055 (‘Aruba’)] to extend the protection of the general principles of Community law to a group of citizens of the Union on a personal basis, notwithstanding that they are not ‘connected’ in any way to the EU as single market or to the European Parliament as a legislature. Nor indeed are they even residing in another member state, which has been the usual trigger in earlier citizenship cases. This is the true innovation of the case, and is in many respects far more significant for citizenship as a whole than it is for the narrower question of the right to vote for the European Parliament. …. Returning to the Article 19 EC electoral rights (local and European Parliamentary), it is conceivable that Aruba could give a green light to challenges to the effects of some national rules which apparently restrict the exercise of the rights, but which in practice imperil their very existence.’

11 The EU principle of equal treatment has been said to be ‘at the heart of the concept of European citizenship’ by Advocate General Poiares Maduro at paragraph 18 of the Opinion in Case C-524/06 Huber [2008] ECR I-9705. And as has been noted by Leonard FM Besselink in ‘Case-note on Eman and Sevinger v. Netherlands’ (2008) 45 Common Market Law Review 787 at 805:

after consulting with the European Parliament, to make detailed arrangements

regarding the exercise of the right of every EU citizen resident in a Member State of

which he is not a national – under the same conditions as that State’s own nationals –

to vote and to stand as a candidate at that Member State’s municipal elections;12 and in

elections to the European Parliament in that Member State.13

c) the right to enjoy diplomatic and consular protection from the authorities of

any other Member State on the same conditions as the nationals of that State, in third

countries where their own Member State is not represented (Article 20(2)(c) TFEU).

Article 23 TFEU requires Member States to adopt the provisions – if necessary, in

accordance with any relevant EU directives establishing coordination and cooperation

measures – and to start the international negotiations required to secure the entitlement

of every EU citizen when in the territory of a third country in which the Member State

of which he is a national is not represented, to protection by the diplomatic or consular

authorities of any other Member State on the same conditions as the nationals of that

State.;

d) the right to petition the European Parliament, to apply to the European

Ombudsman, and to address the institutions and advisory bodies of the EU in any of

the (currently 23) Treaty languages,14 and to obtain a reply in the same language

‘[T]he exclusion of a Member States own nationals must not be discriminatory as the Court [of Justice in Case C-300/04 Eman and Sevinger v. Netherlands [2006] ECR I-8055] found was the case with the Netherlands electoral law in question. This is a considerable EC law restriction on the freedom of Member States to withhold political rights from their own nationals.’

12 The United Kingdom has understood and interpreted ‘municipal elections’ for the purposes of EU law as meaning elections to all elected local government authorities in the UK, below the level of the UK Parliament (see the Annex to Directive 94/80/EC ([1994] OJ L368/80)). It should be noted that the Annex to the Directive, contrary to the requirements of Article 2(2) of the Directive, has not been updated to reflect the reorganisation of local government in the UK since 1994 and the introduction of devolution. This leaves it unclear whether or not, as a matter of EU law, EU citizens have an EU law right to vote in elections to the Scottish Parliament and/or the Welsh and Northern Irish Assemblies.13 See Case C-145/04 Spain v UK [2006] ECR I-7917.14 Art 55 of the post-Lisbon TEU provides as follows: '… This Treaty, drawn up in a single original in the Bulgarian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish languages, the texts in each of these languages being equally authentic, shall be deposited in the archives of the Government of the Italian Republic, which will transmit a certified copy to each of the governments of the other

(Article 20(2)(d) TFEU). These rights are repeated in the same terms in Article 24

TFEU, which also provides a Treaty basis for the making of EU regulations setting out

the procedures and conditions required for a citizens’ initiative within the meaning of

Article 11 TEU.

The EU Charter of Fundamental Rights on Free Movement and the EU Citizen

2.6 Article 15(2) of the EU Charter of Fundamental Rights (CFR) provides that

every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State.

This Charter provision simply summarises the three fundamental freedoms – freedom of

movement for workers, freedom of establishment and freedom to provide services –

which are set out and guaranteed by Articles 26, 45, 49 and 56 TFEU.

2.7 Article 21(2) CFR states that

within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited.

This Charter provision simply corresponds with and reflects the terms of Article 18(1)

TFEU noted above. The Treaty prohibition against nationality discrimination has direct

horizontal effect, and can therefore be prayed in aid by any individual before a national

court of a Member State.15 Further, the prohibition on nationality discrimination has been

held to cover not only direct but also covert or indirect discrimination,16 so that imposing

signatory States. … This Treaty may also be translated into any other languages as determined by Member States among those which, in accordance with their constitutional order, enjoy official status in all or part of their territory. A certified copy of such translations shall be provided by the Member States concerned to be deposited in the archives of the Council.'

15 See, eg, Case 36/74 Walrave and Koch v Association Union Cycliste Internationale [1975] ECR 1405; and Case 186/87 Cowan v Trésor Public [1989] ECR 195.16 See, for examples of direct reliance upon the prohibition against nationality discrimination, the challenges to the lawfulness of orders for security for costs imposed on EU nationals resident outside the territorial jurisdiction of the courts of a Member State in Case 22/80 Boussac Saint-Frères SA v Brigitte Gerstenmeier [1980] ECR I-3427; Case C-20/92 Hubbard v Hamburger [1993] ECR I-3777; Case C-398/92 Mund and Fester v Hatrex International Transport [1994] ECR I-467; Case C-43/95 Data Delecta AB v MSL Dynamics Ltd [1996] ECR I-4661; Case C-323/95 Hayes v Kronenberger [1997] ECR I-1171; and Case C-122/96 Saldanha v Hiross Holding AG [1997] ECR I-5325.

criteria such as the place of origin or residence of a worker could be tantamount, in their

practical effect, to discrimination on grounds of nationality.17

2.8 Article 39 CFR restates the already noted EU citizen’s right to vote and to stand as a

candidate at elections to the European Parliament – conducted under conditions of a free

and secret ballot under direct universal suffrage; which body, under Article 44 CFR, any

EU citizen (as well as 'any natural or legal person residing or having its registered office

in a Member State') may then petition. Article 40 CFR repeats the EU citizen’s right to

vote in and stand for Member State municipal elections; Article 43 CFR reiterates the EU

citizen’s right to apply to the European Ombudsman; and Article 46 CFR again mentions

the EU citizen’s right to diplomatic and consular protection from other EU Member

States.

2.9 Article 45 CFR reflects the right already guaranteed by Article 20(2)(a) TFEU, stating

that 'every citizen of the Union has the right to move and reside freely within the territory

of the Member States'. In Baumbast,18 the Court of Justice expressly disengaged the free

movement rights – which had originally been granted under the Treaty of Rome

essentially to migrant workers – from any need to be economically active, finding instead

that the status of being an EU citizen was sufficient to confer a right to residence in

another Member State by virtue of the direct application of Article 21(1) TFEU (formerly

Article 18(1) EC).

2.10 In Konstantinidis v Stadt Altensteig, Advocate General Jacobs suggested in his

Opinion that wherever an EU national goes to earn his living anywhere in the EU, he

should be

entitled to assume that, wherever he goes ... in the European Union he will be treated in accordance with a common code of fundamental values, in particular those laid down in the European Convention on Human Rights. In other words, he is entitled to say ‘civis europeus sum’ and to invoke that status in order to oppose any violation of his fundamental rights.19

17 See Case 152/73 Solgiu v Deutsche Bundespost [1974] ECR 153; and Case 3/87 R v Minister of Agriculture, Fisheries and Food, ex p Agegate Ltd [1990] ECR 4459.18 Case C-413/99 Baumbast [2002] ECR I-7091.

19 Case C-132/91 Konstantinidis v Stadt Altensteig [1993] ECR I–1191, at para 46 of the Opinion of the AG Jacobs.

2.11 The grandiloquence of this statement and the sentiments underlying it are rather

belied by the subject matter of the case, which involved a dispute about the correct

spelling or transliteration into the Latin alphabet by the German authorities of the

claimant’s Greek name.20

Free movement and the EU citizen

2.12 A now standard cut-and-pasted passage from the case law of the CJEU is that:

The status of citizen of the Union is destined to be the fundamental status of nationals of the member states, enabling those among such nationals who find themselves in the same situation to enjoy the same treatment in law within the area of application ratione materiae of the EC Treaty irrespective of their nationality, subject to such exceptions as are expressly provided for in that regard…21

2.13 Each Member State remains entitled to determine the scope of its own nationality

laws: under UK law, British citizens, British subjects with a right of abode in the UK and

Gibraltarians qualify as British nationals for EU law purposes, and in this last case

accordingly have a right to vote as part of the UK constituency in elections for the

European Parliament.22 As might be assumed from this, the territorial scope of the rules

on free movement of EU citizens extends to Gibraltar. The rules do not, however, apply

to the Channel Islands or to the Isle of Man.

20 See too Case C-208/09 Sayn-Wittgenstein, 22 December, [2010] ECR I-nyr, for another personal-naming dispute in which, notwithstanding the consequent impact on the individual’s Treaty free movement and citizenship rights, the Austrian authorities’ refusal to recognise the adoption of a name under German law was held to be justified by Austrian public policy relative to the abolition of aristocratic titles. Cf Losonci Rose and Rose v Switzerland [2010] ECHR 664/06 (First Section, 9 November 2010), where the ECtHR held that the inability of a husband and wife to keep their own surnames after their marriage to one another constituted a violation of Art 8 ECHR and Art 14 ECHR.21 Joined Cases C-76/05 & C-318/05 Schwarz and another v Finanzamt Bergisch Gladbach; European Commission v Germany [2007] ECR I-6849.22 See Case C-145/04 Spain v UK [2006] ECR I-7917, where the Court of Justice rejected a challenge by Spain to UK law expanding the right to vote in the European Parliament. It was acknowledge that this legislation was necessary to comply with the decision of the ECtHR in Matthews v UK (1999) 38 EHRR 361, in which the Strasbourg Court held that the European Parliament was a 'legislature' for the purposes of Article 3 of Protocol 1 ECHR and that the exclusion (by Treaty provision among the EU members) of residents of Gibraltar from the right to vote in that Parliament’s elections constituted an unlawful denial of their ECHR protected democratic rights to participate in the composition of a legislative body which (as a constituent part of the EU legislature) had some degree of control over the internal affairs of Gibraltar.

2.14 But nationals of the Member States, whatever their economic status, are also EU

citizens; and the TFEU recognises that the EU citizen has the right to leave his own

country and move to another Member State. This need not necessarily be for the purely

economic reasons or motives covered by the original free movement provisions of the

Treaty of Rome. That said, however, the underlying economic rationale of the original

provisions of the Treaty of Rome means that distinctions continue to be made in the case

law and EU secondary legislation between:

a) those who move abroad to work, whether in an employed or a self-employed

capacity;

b) those who seek to study or take up vocational training abroad;

c) those who choose to retire abroad; and

d) those who move abroad simply because they can afford to and do not need or

want to work.

2.15 All of these categories are now dealt with in the consolidating provisions of the

Citizenship (Free Movement) Directive 2004/38/EC, which sets out the various free

movement rights and entitlement of EU citizens – whether they are workers, self-

employed, students or trainees, retired or independently wealthy – and their family

dependents.23 And with a view to facilitating the freedom of movement of EU nationals,

EU law grants dependent rights to the family members (regardless of their nationality) of

EU nationals. Thus large numbers of non-EU nationals may claim the protection of EU

Treaty free movement law on this dependent basis.24

23 The Citizenship (Free Movement) Directive 2004/38/EC is primarily implemented in the UK by the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003). In Lekpo-Bozua v Hackney LBC [2010] EWCA Civ 909, [2010] Housing Law Reports 46, the Court of Appeal of England and Wales noted that these 2006 Regulations implemented, and were accordingly to be given no greater effect than, Directive 2004/38, holding, therefore, that tolerated lawful residence under UK law would not by itself amount to residing legally for the purposes of EU law including Directive 2004/38 and hence for the purposes of the 2006 Regulations.

24 Non-EU citizens may also benefit where they are attached to a EU-based company which crosses a border in order to provide services in another Member State: Case C113/89 Rush Portugesa v Office National d'Immigration [1990] ECR I-1417.

Initial right of three-month residency

2.16 Article 6 of the Citizenship (Free Movement) Directive provides that EU citizens have

the right of residence in the host Member State for a period of up to three months without

being subject to any conditions or any formalities, other than the requirement to hold a

valid identity card or passport. This provision is without prejudice to any more favourable

treatment which can be claimed by those EU citizens seeking to find work in that

Member State: under the case law of the Court of Justice, such EU jobseekers may enter

and stay for a sufficient period to apprise themselves of appropriate job opportunities.25

As the Court has observed:

36. Nationals of a Member State seeking employment in another Member State fall within the scope of Article 39 EC [now Article 45 TFEU] and therefore enjoy the right to equal treatment laid down in paragraph 2 of that provision (Case C-258/04 Ioannidis [2005] ECR I-8275, paragraph 21).

37. Furthermore, in view of the establishment of citizenship of the Union and the interpretation of the right to equal treatment enjoyed by citizens of the Union, it is no longer possible to exclude from the scope of Article 39(2) EC a benefit of a financial nature intended to facilitate access to employment in the labour market of a Member State (Case C-138/02 Collins [2004] ECR I-2703, paragraph 63, and Ioannidis, paragraph 22).

38. It is, however, legitimate for a Member State to grant such an allowance only after it has been possible to establish a real link between the job-seeker and the labour market of that State (Case C-224/98 D’Hoop [2002] ECR I-6191, paragraph 38, and Ioannidis, paragraph 30).26

2.17 Under Article 14(1) of the Directive this initial three-month right of residence is

dependent on the EU citizen and family members not becoming an unreasonable burden

on the social assistance system of the host Member State. Member States are permitted

under Article 24(1) of the Citizenship (Free Movement) Directive 2004/38/EC to decide

whether to give access to any social assistance during these first three months of

residence (or for such longer period of entitled initial residence in the case of EU

jobseekers) to EU citizens.

2.18 Otherwise the principle of equal treatment (given particular expression in Article 24

of the Citizenship (Free Movement) Directive) requires that EU residents and their

families should be entitled to be treated in the same way as nationals of the host State;

25 Case C-292/88 R v Home Secretary, ex p Antonissen [1991] ECR I-745.26 Joined Cases C-22/08 & C-23/08 Vatsouras and Koupatantze v Arbeitsgemeinschaft (ARGE) Nürnberg 900 [2009] ECR I-4584 at paras 36–38.

although as we have seen in para 15.45 above, Article 24(2) allows that Member States

need not, prior to an EU citizen’s acquisition of the right of permanent residence in the

host country, grant maintenance aid for studies, including vocational training, consisting

in student grants or student loans to 'non-workers', that is to say persons other than

workers, self-employed persons, persons who retain such status and members of their

families.27

Expulsion for social welfare dependency of non-workers

2.19 Where such 'non-workers' (for example, the independently wealthy or students – and

their families) have exercised their EU citizenship free movement rights but have then

become dependent on the social assistance system of the host Member State, Article 14(3)

of the Citizenship (Free Movement) Directive allows that expulsion is a possible – though

never automatic – option. Expulsion might be justified on this ground only if, and in so

far as, the non-workers' social security dependence may be said to constitute, or have

become, an unreasonable burden on the system. But whether or not there is such

unreasonable social security dependence requires examination on a case-by-case basis,

taking into account such factors as whether the need for such social assistance arises as a

result of temporary difficulties, the duration of residence, the personal circumstances of

the non-worker and the amount of aid granted.

2.20 In Patmalniece v Secretary of State for Work and Pensions 28 the UK Supreme Court

upheld the lawfulness of making entitlement to “state pension credit” (a means tested non-

contributory benefit) dependent on a right to reside in the UK. Somewhat surprisingly,

the UKSC accepted (Lord Walker dissenting) that this justification was independent of

the nationality of the persons concerned and thus not a form of direct discrimination

necessarily incompatible with Union law. Although a form of indirect nationality

discrimination, the right to reside in the UK test was said by the court to have the

legitimate purpose of ensuring that only those who were economically or socially

integrated within the UK (and/or Ireland) should have access to the UK’s social

27 See Case C-158/07 Förster v Hoofddirectie van de Informatie Beheer Groep [2008] ECR I-8507.

28 Patmalniece v Secretary of State for Work and Pensions [2011] 1 WLR 783

assistance system. The imposition of this test was said to be achieve the legitimate end

of safeguarding the UK's social security system from exploitation by those who had not

contributed to its funds. The European Commission disagrees, and on 29 September

2011 issued a “reasoned opinion” giving the UK two months to abolish the “right to

reside in the UK” test, keeping only the EU law “habitual residence in the UK” test. The

Commission noted:

2.21 “The concept of habitual residence has been defined at EU level as the place where

the habitual centre of interests of the person is located. The Commission considers that

the criteria for assessing habitual residence are strict and thus ensure that only those

persons who have actually moved their centre of interest to a Member State are

considered habitually resident there. This is a powerful tool for the Member States to

make sure that these social security benefits are only granted to those genuinely residing

habitually within their territory.”

Dependent family rights

2.22 As noted above, the family members of those directly entitled to EU free movement

rights are accorded subsidiary or dependent rights. Family members for the purposes of

EU free movement rights are defined in Article 2(2) of the Citizenship (Free Movement)

Directive 2004/38/EC as including the spouse29 and the partner with whom the EU citizen

has duly contracted a registered partnership on the basis of the legislation of a Member

State,30 if the relevant legislation of the host Member State treats registered partnerships

as equivalent to marriage.31 Under Article 35 of Directive 2004/38/EC Member States

29 On the definition of 'spouse', see Case 267/83 Diatta v Land Berlin [1985] ECR 567; Case 59/85 Netherlands v Reed [1986] ECR 1283. In Case C-127/08 Metock v Minister for Justice, Equality and Law Reform [2008] ECR I-6241, the Grand Chamber held that Ireland could not impose legislation requiring an non-EU national spouse of an EU citizen resident in Ireland, before being permitted to join her spouse in Ireland, to have previously been lawfully resident in another Member State. Member States could not make the dependent rights under the Directive conditional on matters such as when and where their marriage took place, and how the national of a non-member country entered the host Member State.

30 Contrast with D v Council [2001] ECR I-4319, where, within the context of employment in the EU institutions, the refusal to equate the status of same-sex civil partnership duly registered under Swedish law with opposite-sex marriage was held by the Court of Justice to be justified in the then current state of EU law.31 Case C-267/06 Tadao Maruko v Versorgungsanstalt der deutschen Bühnen [2008] ECR I-1757 at para 59:

'[C]ivil status and the benefits flowing there from are matters which fall within the competence of the Member States and EU law does not detract from that competence. However, it must be recalled that in the exercise of that competence the Member States must comply with EU law and, in particular, with

may take measures to protect against abuse of rights by the contracting of sham marriage

or civil partnerships.32Article 2(2)(c) of Directive 2004/38/EC also includes among the

relevant family members 'the direct descendants who are under the age of 21 or are

dependents and those of the spouse or partner as defined in point'. And Article 2(2)(d) of

the same Directive allows for 'the dependent direct relatives in the ascending line, and

those of the spouse or partner as defined in point (b)' also to come within the definition of

'family'. The status of dependency is to be determined objectively, by reason of the fact

that the worker actually provides support; there is no need to investigate whether the

recipient really needs it.33

2.23 Those persons who do not fall fully within the Directive’s definition of family

member (for example, an unmarried or unregistered partner) do not enjoy an automatic

EU law right of entry and residence in the host Member State. Strictly, the decision on

whether or not to grant entry and residence to quasi-family members is one for the host

Member State deciding on the basis of its own national legislation and policy. Article 3(2)

of the Directive nevertheless enjoins the Member States to 'facilitate entry and residence'

to a partner with whom the EU citizen has a duly attested durable relationship, as well as

to other family members of the EU citizen who are either his dependents or members of

his household, or who on serious health grounds require personal care from the family.

Any denial of entry or residence has to be expressly justified in all the circumstances of

the case.34

2.24 Article 12(3) of Directive 2004/38 provides that the departure or death of the citizen

of the Union does not entail the loss of the right of residence of the children or the parent

the provisions relating to the principle of non-discrimination.'

See too C-147/08 Jürgen Römer v Freie und Hansestadt Hamburg 10 May [2011] nyr (GC) at [53]-[64]

32 Cf Case C-127/08 Metock [2008] ECR I-6241, confirming the right of EU citizens residing in another Member State to marry non-EU nationals granted asylum there. 33 See Case 316/85 Centre Public de l'Aide Sociale de Courcelles v Lebon [1987] ECR 2811.34 For a discussion of the provisions and principles governing family reunification by non-EU citizens resident in the EU, see Case C-540/03 Parliament v Council: re family reunification [2006] ECR I-5769.

who has actual custody of them, irrespective of their nationality, if the children reside in

the host Member State and are enrolled at an educational establishment for the purpose of

studying there, until the completion of their studies.35 And Article 13 of the Directive

gives protection to family members in the event of the death of the EU citizen – or

divorce,36 annulment of marriage or termination of a registered partnership – to ensure

that they can retain their rights of residence within the territory of the host Member State.

Right to reside for longer than three months

2.25 Article 7(1) of Directive 2004/38 provides that EU citizens and their family members

who either have sufficient resources (including comprehensive health insurance cover37)

for themselves and their family members not to become a burden on the social assistance

system of the host Member State during their period of residence or study, or who are

workers or self-employed persons in the host Member State, shall have the right of

residence for a period of longer than three months.

2.26 Article 7(3) of Directive 2004/38 provides that the EU free movement status of a

'worker' or 'self-employed person' is retained even when the individual:

a) is temporarily unable to work as the result of an illness or accident; or

35 In Case C-310/08 R (Ibrahim) v London Borough of Harrow, 23 February, [2010] ECR I-nyr, the Grand Chamber held that the right of residence in the host Member State of children who are in education there and of the parent who is their primary carer, cannot be made subject to the condition that they have sufficient resources and comprehensive sickness insurance cover.

36 Similar rights to stay following a divorce are conferred on Turkish nationals resident in the EU under and in terms of the EEC–Turkey Association Agreement. In Case C-303/08 Land Baden-Württemberg v Metin Bozkurt, 22 December, [2010] ECR I-nyr, the CJEU held that it was not an abuse of rights for the applicant rely on his residency right even though the person concerned, after acquiring that right through his former wife, committed a serious offence against her which gave rise to a criminal conviction. However the Court allowed for the possibility of the expulsion of a Turkish national who has been convicted of criminal offences, provided that his personal conduct could properly be said by the national court on the facts to constitute a present, genuine and sufficiently serious threat to a fundamental interest of society.

37 See W (China) v Secretary of State for the Home Department [2007] 1 WLR 1514 (EWCA) for a discussion as to whether this is a requirement for private health care insurance.

b) is duly recorded as involuntarily unemployed after having been employed for

more than one year and has registered as a jobseeker with the relevant employment

office, even where unable to work by reason of imprisonment.38

Where the former worker is duly recorded to be in involuntary unemployment after

having completed a fixed-term employment contract of less than a year (or after having

become involuntarily unemployed during the first 12 months) and has registered as a

jobseeker with the relevant employment office, he may keep the EU law status of 'worker'

for at least six months. And the EU law status of 'worker' will be retained if he is

embarking on vocational training which, except in the case of involuntary unemployment,

should be related to the previous employment.

2.27 While the children of workers and self-employed people who are not dependent but

are under 21 years old derive residence rights from this provision (as do the non-

dependent grandchildren of workers), only the spouse/registered civil partner and

dependent children of those studying or undertaking a course of vocational training have

EU law rights of residence under the Directive (Article 7(4)).

Registration of EU nationals

2.28 In respect of those wishing to exercise their right of residence in a host State for more

than three months, Member States are permitted by Article 8 to require EU citizens to

register with the competent authorities in the place of residence, which registration may

be attested by a registration certificate issued to that effect. But such registration is merely

of evidential value, and the EU citizen’s right to reside in another Member State exists

38 See Case C-482/01 Orfanopoulos v Land Baden-Württemberg [2004] ECR I-5257 at paras 49–50:

'So far as concerns migrant workers who are nationals of a Member State, their right of residence is subject to the condition that the person remains a worker or, where relevant, a person seeking employment (see, to that effect, Case C-292/89 Antonissen [1991] ECR I-745, paragraph 22), unless they derive that right from other provisions of Community law (see Case C-466/00 Kaba II [2003] ECR I-2219 paragraph 47). … Moreover, in respect more particularly of prisoners who were employed before their imprisonment, the fact that the person concerned was not available on the employment market during such imprisonment does not mean, as a general rule, that he did not continue to be duly registered as belonging to the labour force of the host Member State during that period, provided that he actually finds another job within a reasonable time after his release (see, to that effect, Case C-340/97 Nazli [2000] ECR I-957, paragraph 40).'

directly as a matter of fundamental EU law quite independently of any national

administrative formalities.39

2.29 Those countries which issue and require the carrying of residence cards or permits

may still require them of family members of EU citizens who are not nationals of a

Member State, but only in respect of periods of residence of longer than three months

(Article 9). Once any residence card has been obtained then its holder is exempted from

any requirement to obtain an entry visa when crossing back into the EU from abroad. The

supporting documents required by the competent authorities for the issuing of an EU

citizen’s registration certificate or of an EU family residence card are comprehensively

specified in Articles 8(5) and 10 of the Citizenship (Free Movement) Directive so as to

avoid the possibility of divergent administrative practices or interpretations which might

otherwise constitute an undue obstacle to the exercise of the right of residence by EU

citizens and their family members.

Right to claim permanent residence

2.30 The Citizenship (Free Movement) Directive 2004/38/EC makes provision in Article

16(1) for EU citizens to claim a right of unconditional permanent residence in the host

Member States for themselves and their families after a continuous period of five years

39In Dogan [2005] ECR 1-6237, a Turkish national who had been in Austria for 27 years, during which time he had been legally employed for many years, did not forfeit his acquired rights of residence as a result of a sentence of three years' imprisonment. See also Case C-230/03 Sedef [2006] ECR I-157. Cf C v Secretary of State for the Home Department [2010] EWCA 1406 (14 December 2010) per Lord Justice Longmore:

'[O]nce one recognises that the purpose of according to a worker a right permanently to reside in a EU state is that of encouraging the integration of such workers into the population of the host state and that such purpose is not achieved or achievable in prison, it must follow that the worker is not legally resident in the host state as an EEA worker during the period of imprisonment and that any period, which includes that period of imprisonment, cannot be part of the necessary “continuous” period for the purpose of calculating the five years continuous legal residence necessary to acquire the right permanently to reside here.'

Case 48/75 Procureur du Roi v Royer [1976] ECR 497. See also Art 15(2) of the Citizenship (Free Movement) Directive 2004/38/EC, providing that expiry of the passport or identity card used to enter the host country and to obtain a residence permit is not enough to justify expulsion. In Case C-215/03 Oulane v Minister voor Vreemdelingenzaken en Integratie [2005] ECR I-1215, the Court further held that a detention order with a view to deportation in respect of a national of another Member State, imposed on the basis of failure to present a valid identity card or passport even when there is no threat to public policy, constitutes an unjustified restriction on the freedom to provide services and is therefore contrary to what is now Art 56 TFEU.

without becoming subject to any expulsion measure.40 The change, made by Council

Directive 2004/38/EC from 30 April 2006, removed the requirement of being

economically active or self-sufficient, but only after five years’ lawful presence,

abandoning the distinction previously central to EU free movement law between

economic and non-economic migrants.41 Article 19 of that Directive does not require

Union citizens who have acquired a right of permanent residence in another Member

State by virtue of Article 16 thereof to hold a residence permit of indefinite duration. 42

These measures are without prejudice to the right already afforded under other provisions

of EU law to EU citizen 'workers'43 or 'self-employed persons'44 to claim permanent

residence for themselves and their family members after having worked in that State.

2.31 These provisions applying specifically to EU citizen 'workers' or 'self-employed

persons' are now contained in Article 17 of Directive 2004/38/EC. They allow, subject

to varying continuous residency requirements in the host State for periods of less than

five years, for permanent residence to be claimed on behalf of themselves and their

families by workers and the self-employed:

a) who have reached retirement age (provided that they have been working in

that Member State for at least the preceding twelve months and have resided there

continuously for more than three years);

b) who have resided continuously in the host Member State for more than two

years and have stopped working there as a result of permanent incapacity or

40 In Case C-162/09 Secretary of State for Work and Pensions v Taous Lassal, 7 October, [2010] ECR I-nyr, the Court of Justice held that continuous periods of five years’ residence completed before the date of transposition of Directive 2004/38, namely 30 April 2006, must be taken into account for the purposes of the acquisition of the right of permanent residence pursuant to Art 16(1) thereof, and that absences from the host Member State of less than two consecutive years, which occurred before 30 April 2006 (but following a continuous period of five years’ legal residence completed before that date) do not affect the acquisition of the right of permanent residence pursuant to Art 16(1) thereof.

41 See Case C-456/02 Trojani v Centre Public d’aide sociale de Bruxelles [2004] ECR 1-7573.

42 See Case C-123/08 Wolzenburg [2009] ECR I-9621, para 50.43 Under Commission Regulation (EEC) No 1251/70 [1970] OJ L142/24.44 Under Council Directive 75/34/EEC [1975] OJ L14/10.

c) who have had to stop working as a result of an occupational related disease or

workplace accident causing injury such as entitles the person concerned to a benefit

payable in full or in part by an institution in the host Member State

d) who commute to work in a neighbouring Member States but return home to

the host State at least every week.

Restrictions on the expulsion of EU workers and their families

2.32 As part of its continuing campaign against the Human Rights Act the Daily Telegraph

continually relies upon the case of Lorenzo Chindamo, an Italian national, as a prime

example of how convicted foreign criminals are relying on the Convention rights

protected under the Act to prevent their expulsion from the UK after serving their

sentence. But as the UK Human Rights blog has pointed out (repeatedly) the decision

that it would not be lawful to deport Philip Lawrence’s killer was not made on the basis

of his Convention rights, but instead relied upon his EU citizenship rights.

2.33 The only lawful basis on which a EU citizen worker, self-employed person or

jobseeker (or his family members) may be denied leave to enter or reside in a Member

State, or indeed be expelled from the host State in which he has exercised his EU free

movement rights in taking up residence, is on the narrowly interpreted45 public policy or

public security grounds set out in Articles 27 and 29 of the Citizenship (Free Movement)

Directive.46 The remedy of expulsion may be taken only if it is shown to be

proportionate,47 taking into account factors including:

a) the degree of integration of the persons concerned in the host State;

b) the length of their residence in the host Member State;

45 Case 41/74 Van Duyn v Home Office [1974] ECR 1337.46 These provisions do not apply to partial residence bans, restricting movement within the territory of a Member State: Case 36/75 Rutili v Ministre de l'Intérieur [1975] ECR 1219.47 See Case 30/77 R v Bouchereau [1977] ECR 1999.

c) their ages;

d) their state of health, family and economic situation; and

e) the links with their country of origin.48

2.34 The greater the degree of integration of EU citizens and their family members in the host Member State, the greater will be their protection against expulsion.49 Thus it would only be in exceptional circumstances – where, for example, there are imperative grounds of public security – that an expulsion measure might lawfully be taken against an EU citizen who has resided for many years in the territory of the host Member State: in view of the emphasis on personal conduct, a desire on the part of the authorities to deter other people from committing similar crimes is not an acceptable basis justifying expulsion.50 And considerations of such instruments as the UN Convention on the Rights of the Child 1989 would similarly suggest that it would only be in the most exceptional case that a EU citizen who is a minor and whose family resides in the host State might lawfully be expelled to his country of origin. Having said all that, in a fairly recent – thought little reported -

decision Land Baden-Württemberg v Panagiotis Tsakouridis 51 of 23 November last year,

the Grand Chamber of the CJEU actually upheld the lawfulness/compatibility with the

Directive of the expulsion from Germany of an individual of Greek parentage who had

been born in Germany and who had lived there for over 30 years - most, if not all, of his

life. But for purposes of German nationality law - which ascribes nationality on the basis

of descent rather than on the basis of place of birth - his nationality was Greek and not

German. He had been convicted in Germany for drugs related offences and the Grand

Chamber of the CJEU held that “imperative grounds of public security” namely the “war

48 Cases 115-116/81 Adoui and Cornuaille v Belgium [1982] ECR 1665.49 See Case C-50/06 Commission v The Netherlands [2007] ECR I-4383.

50 Case 67/74 Bonsignore v Oberstadtdirektor der Stadt Köln [1975] ECR 297.51 In Case C-145/09 Land Baden-Württemberg v Panagiotis Tsakouridis, 23 November, [2010] ECR I-nyr

against drugs” was sufficient to allow the German authorities to justify his expulsion from

Germany as a matter of EU law.

2.35 Article 31 of the Directive sets out strict procedural safeguards which have to be

followed in taking any decision regarding the denial or restriction of residence, or

expulsion.52 Any such action taken by the authorities must be properly justified before the

national courts, before which the EU citizen has a right to seek vindication of his and his

family’s free movement rights under EU law.53

2.36 In any event, there can be no expulsion for life. In the case of Donatella Calfa, the

Court of Justice declared a provision of Greek law which required the imposition of an

order of expulsion from Greek territory for life of nationals of other Member States

convicted in Greece of drugs offences, to be incompatible with EU law as being a

disproportionate interference with the fundamental EU principles in favour of the free

movement of persons.54 Thus the Citizenship (Free Movement) Directive gives any EU

citizens (and their family members) who have been excluded from the territory of a

Member State the right to submit a fresh application after a reasonable period, and in any

event after a three-year period from enforcement of the final exclusion order.

Right of exit

2.37 It should also be noted that under the terms of the Citizenship (Free Movement)

Directive 2004/38/EC an EU citizen has the right to leave the territory of a Member State

to travel to another member State. Article 4 of the Directive provides as follows

52 See Case 131/79 R. v Home Secretary ex p Santillo [1980] ECR 1585.53 In Joined Cases C-65/95 & C-111/95 R v Secretary of State for the Home Department, ex p Shingara and Radiom [1997] ECR I-3343, the Court of Justice found that a French Sikh activist and an Iranian consular official also holding Irish nationality, who were refused entry to the UK on grounds of public security considerations, had the right to appeal against this decision on the basis of Art 8 of the then applicable Directive 64/221/EEC. Such individuals also had the right under Art 9 to obtain an opinion from an independent competent authority where an administrative authority took a fresh decision on a new application after a reasonable time had elapsed since entry was last refused.54 Case C-348/96 Criminal Proceedings against Donatella Calfa [1999] ECR I-11.

“Right of exit

1. Without prejudice to the provisions on travel documents applicable to national border controls, all Union citizens with a valid identity card or passport and their family members who are not nationals of a Member State and who hold a valid passport shall have the right to leave the territory of a Member State to travel to another Member State.”

2.38 The CJEU has held that this is a directly effective EU law right which may be claimed

by an EU citizen against the Member State of his or her own nationality. 55 The proposed

restrictions on the mode and manner in which EU citizens and their families to exercise

their right of exit from the UK falls within the ambit of EU law the Secretary of State can

55 See Case C-434/10 Petar Aladzhov v Zamestnik direktor na Stolichna direktsia na vatreshnite raboti kam Ministerstvo na vatreshnite raboti 17 November [2011] ECR I-nyr at paras 24-27:

“24. [A]s a Bulgarian national, Mr Aladzhov enjoys the status of a citizen of the Union under Article 20 TFEU and may therefore rely on the rights pertaining to that status, including against his Member State of origin, and in particular the right conferred by Article 21 TFEU to move and reside freely within the territory of the Member States (see, inter alia, Case C-33/07 Jipa [2008] ECR I-5157, paragraph 17, and Case C-434/09 McCarthy [2011] ECR I-0000, paragraph 48).

25. The right of freedom of movement includes both the right for citizens of the European Union to enter a Member State other than the one of origin and the corresponding right to leave the State of origin. As the Court has already had occasion to state, the fundamental freedoms guaranteed by the Treaty would be rendered meaningless if the Member State of origin could, without valid justification, prohibit its own nationals from leaving its territory in order to enter the territory of another Member State (see Jipa, paragraph 18).

26. Moreover, Article 4(1) of Directive 2004/38 expressly provides that all Union citizens with a valid identity card or passport have the right to leave the territory of a Member State to travel to another Member State.

27. It follows that a situation such as that of Mr Aladzhov, who seeks to travel from the Member State of which he is a national to another Member State, is covered by the right of citizens of the Union to move and reside freely in the Member States.

….

31. ..[T]he referring court states that the national legislation transposing Directive 2004/38 is not applicable to citizens of the Republic of Bulgaria.

32. However, that fact cannot, in any event, have the effect of preventing a national court from giving full effect to the rules of European Union law which, as stated in paragraph 27 of this judgment, are applicable in the main proceedings, and more particularly to Article 27 of Directive 2004/38. Accordingly, it is the duty of the court seised to refuse, if necessary, to apply any provision of national legislation which is in conflict with European Union law, in particular by annulling an individual administrative decision adopted on the basis of such a provision (see, to that effect, inter alia, Case C-173/09 Elchinov [2010] ECR I-0000, paragraph 31 and case-law cited). Further, the provisions of that article, which are unconditional and sufficiently precise, may be relied on by an individual vis-à-vis the Member State of which he is a national (see, by analogy, Case 41/74 van Duyn [1974] ECR 1337, paragraphs 9 to 15).”

only exercise its powers to impede this right to exit in a manner which confirms to the

requirements and general principles of EU law, as the CJEU has noted in Gaydarov:

“32. …[I]t is clear from settled case-law that, while Member States essentially retain the freedom to determine the requirements of public policy and public security in accordance with their national needs, which can vary from one Member State to another and from one era to another, the fact still remains that, in the European Union context and particularly as justification for a derogation from the fundamental principle of free movement of persons, those requirements must be interpreted strictly, so that their scope cannot be determined unilaterally by each Member State without any control by the institutions of the European Union (see, inter alia, Case C-33/07 Jipa [2008] ECR I-5157 paragraph 23).

33      The Court has thus stated that the concept of public policy presupposes, in any event, the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society (see, inter alia, Jipa, paragraph 23 and case-law cited).

34      In that context, the derogations from the free movement of persons that are capable of being invoked by a Member State imply in particular, as stated in Article 27(2) of Directive 2004/38, that if measures taken on grounds of public policy or public security are to be justified they must be based exclusively on the personal conduct of the individual concerned and that justifications that are isolated from the particulars of the case in question or that rely on considerations of general prevention cannot be accepted (Jipa, paragraph 24)….” 56

2.39 The CJEU has also been quite clear that restrictions preventing EU national from

leaving a Member State cannot be based on purely financial reasons – for example, for

non-payment of tax. 57 Against that background the apparent readiness in the Family

Courts 58 to authorize the seizure of individuals passports, 59 reviving in effect the ancient

writ of ne exeat regno, 60 often in disputes concerning child support and maintenance

payments 61 is perhaps of questionable legality, at least as regards EU citizens. 62

56 Case C-430/10 Hristo Gaydarov v Direktor na Glavna direktsia ‘Ohranitelna politsia’ pri Ministerstvo na vatreshnite raboti 17 November [2011] ECR-nyr at paras 32-4

57 See Case C-434/10 Petar Aladzhov v Zamestnik direktor na Stolichna direktsia na vatreshnite raboti kam Ministerstvo na vatreshnite raboti 17 November [2011] ECR I-nyr58 See G (mother) v A (father) [2011] EWHC 968 (Fam) (High Court of Justice Family Division, 23 March 2011)59 See however R. (on the application of Atapattu) v Secretary of State for the Home Department [2011] EWHC Admin 1388 (27 May 2011) where it was held that the wrongful retention of the passport of a Sri Lankan national who had applied for a United Kingdom student visa made the Secretary of State for the Home Department liable for damages for conversion under the Torts (Interference with Goods) Act 197760 See Al Nahkel for Contracting and Trading v Lowe [1986] QB 235 (QBD)61 See for example B v B (Injunction: Restraint on Leaving Jurisdiction) [1998] 1 WLR 329 (Fam Div)

3. CASE STUDY – USING EU CITIZENSHIP RIGHTS RE PRISONERS VOTING

3.1 The applicant is a convicted prisoner. He holds the nationality of an EU member State.

He is therefore an EU citizen and is over the age of eighteen. He is currently imprisoned

in the United Kingdom. He would have a right to vote in elections in the UK but, by

reason of the terms of section 3(1) of the Representation of the People Act 1983 (“RPA”)

he is, on the face of it, excluded from the franchise for local government elections in the

UK and from the franchise for elections in the UK to the European Parliament. The

terms of Section 3(1) RPA are as follows:

“A convicted person during the time that he is detained in a penal institution in pursuance of his sentence or unlawfully at large when he would otherwise be so detained is legally incapable of voting at any parliamentary or local government elections.”

Convention incompatibility of prisoner disenfranchisement

3.2 In Smith v. Scott Section 3(1) RPA was found by the Registration Appeal Court to be

incompatible with the requirements of Article 3 of the First Protocol to the European

Convention on Human Rights (ECHR) as interpreted by the European Court of Human

Rights, notably in the decision of the Grand Chamber in Hirst v UK (No 2) (2006) 42

EHRR 41. The Registration Appeal Court summarised the substance of the decision of

the Grand Chamber in Hirst v. UK (No. 2) as follows:

“15. … The right to vote was not a privilege. In the 21st century the presumption in a democratic state must be in favour of inclusion. Universal suffrage had become the basic principle. Nonetheless, the rights bestowed by Art 3 of the First Protocol were not absolute. There was room for implied limitations and Contracting states must be given a wide margin of appreciation in this sphere. It was, however, for the Court to determine in the last resort whether the requirements of Art 3 of the First Protocol had been complied with; it had to satisfy itself that any conditions did not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they were imposed in pursuit of a legitimate aim; and that the means employed were not disproportionate…. In particular, the exclusion of any groups or categories of the general population must be reconcilable with the underlying purposes of Art 3 of the First Protocol. …17. … Section 3 of the 1983 Act remained a blunt instrument. The provision imposed an automatic and indiscriminate blanket restriction on all convicted prisoners in prison, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Art 3 of the First Protocol.” 63

62 Compare Kuwait Airways Corporation v Iraq Airways Co and Another [2010] EWCA Civ 741 (27 April 2010)63 Smith v. Scott, 2007 SC 345

EU law incompatibility of Section 3(1) RPA

3.3 As we have seen Article 20(1) of the Treaty on the Functioning of the European Union

(“TFEU”) confirms the establishment of the concept of EU citizenship which

supplements their national citizenship rights. 64 And we have noted the decision of the

Grand Chamber of the CJEU observed in Zambrano v. Office national de l’emploi

(ONEm):

“[C]itizenship of the Union is intended to be the fundamental status of nationals of the Member States. … In these circumstances, Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union”. 65

3.4 And we have also noted that Article 20(2)(b) TFEU expressly confers on all EU citizens

the right to vote (and to stand as candidates) in “municipal elections” in their Member

State of residence, under the same conditions as other nationals of that State. “Municipal

elections” for these Treaty purposes arguably covers all local government elections in

England. 66 Article 20(2)(b) TFEU also governs EU citizens the right to vote and to

stand as candidates in elections to the European Parliament. Provisions of national law

which fall within the ambit of the voting rights protected under the European Treaty are

challengeable, as a matter of EU law, even by individuals who hold the nationality of that

Member State.

3.5 National laws such as Section 3(1) RPA which would restrict or deny the rights to vote protected under EU law are also challengeable on the basis of their incompatibility with the fundamental rights protected as general principles of EU law - see Advocate General Tizzano in his Opinion Spain v. UK:

64 Case C-135/08 Rottmann v. Bavaria 2 March [2010] ECR I-nyr65 Case C-34/09 Zambrano v. Office national de l’emploi (ONEm) 8 March [2011] ECR I-nyr (at paragraphs 41-2)66 Compare however McGeoch v Lord President of the Council [2011] CSIH 67 opining that elections fo the Scottish Parliament might not be covered by the concept of “municipal election”.

“In the Community legal order ‘both the Community and its Member States are required to respect fundamental rights’, on a primary basis, and that therefore, in that legal order, ‘measures which are incompatible with observance of [those] . . . rights” are not acceptable’.67

3.6 Article 52(3) of the EU Charter of Fundamental Rights (“CFR”) specifies that “in so far

as this Charter contains rights which correspond to rights guaranteed by the Convention

for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope

of those rights shall be the same as those laid down by the said Convention. 68 This

provision shall not prevent Union law providing more extensive protection.” 69 Thus

Charter rights may exceed the base level of protection afforded by the Strasbourg Court

under and in terms of the ECHR. 70 Article 20 CFR also provides that “everyone is equal

before the law”. 71

67 Case C-145/04 Spain v. UK [2006] ECR I-791768 Case C-400/10 PPU J. McB. v L.E. 5 October [2010] ECR I-nyr at paragraph 5369 See Case C-256/11 Murat Dereci and others v. Bundesministerium für Inneres 15 November [2011] ECR I-nyr at paras 70-2:

“70. [I]t must be observed that in so far as Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’), concerning respect for private and family life, contains rights which correspond to rights guaranteed by Article 8(1) of the ECHR, the meaning and scope of Article 7 of the Charter are to be the same as those laid down by Article 8(1) of the ECHR, as interpreted by the case-law of the European Court of Human Rights (Case C-400/10 PPU McB. [2010] ECR I-0000, paragraph 53).

71. However, it must be borne in mind that the provisions of the Charter are, according to Article 51(1) thereof, addressed to the Member States only when they are implementing European Union law. Under Article 51(2), the Charter does not extend the field of application of European Union law beyond the powers of the Union, and it does not establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties. Accordingly, the Court is called upon to interpret, in the light of the Charter, the law of the European Union within the limits of the powers conferred on it (McB., paragraph 51, see also Joined Cases C-483/09 and C-1/10 Gueye and Salmerón Sánchez [2011] ECR I-0000, paragraph 69).

72. Thus, in the present case, if the referring court considers, in the light of the circumstances of the disputes in the main proceedings, that the situation of the applicants in the main proceedings is covered by European Union law, it must examine whether the refusal of their right of residence undermines the right to respect for private and family life provided for in Article 7 of the Charter. On the other hand, if it takes the view that that situation is not covered by European Union law, it must undertake that examination in the light of Article 8(1) of the ECHR.”

70 Case C-279/09 DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v. Germany 22 December [2010] ECR I-nyr71 See Case C-21/10 Károly Nagy v Mezőgazdasági és Vidékfejlesztési Hivatal 21 July [2011] ECR I-nyr at para 47:

“The Court has consistently held that the principle of equal treatment, enshrined in Article 20 of the Charter of Fundamental Rights of the European Union, requires that comparable situations must not be treated differently, and different situations must not be treated in the same way, unless such treatment is

3.7 The deprivation of the claimant’s right to vote in local government elections and

separately the European Parliamentary election on the basis only of the automatic

operation of the Convention incompatible provisions of Section 3(1) RPA deprives the

claimant, as a citizen of the European Union, of the genuine enjoyment of the substance

of the rights conferred on him by virtue of his status as an EU citizen and/or the EU

principle of equal treatment and/or is incompatible with respect for the claimant’s EU

fundamental rights which are guaranteed both as general principles of EU law and as set

out in the Charter of Fundamental Rights.

3.8 The refusal of the claimant’s application to be included on the Electoral Register in accordance with the provisions of Section 3(1) RPA is accordingly incompatible with the claimant’s EU law right to vote in the municipal elections of, and European Parliamentary elections in. the Member States.

Possible legal action by the applicant

3.9 The applicant may seek to challenge the compatibility with his EU law rights of the

decision of the Electoral Registrar, in reliance upon the terms of Section 3(1) RPA, to

refuse to accept his application to be included on the electoral Register for local

government elections and separately for elections to the European Parliament. He can

challenge the compatibility of the application to him of the terms of Section 3(1) RPA

with his EU law rights and seek the disapplication of this provision of national law as

incompatible with respect for his fundamental rights as protected by and under EU law.

3.10 To do so the applicant would require to raise a judicial review in order to ensure the

proper recognition and vindication of his EU law rights. In any such judicial review he

might seek:

objectively justified (see, inter alia, Case C-354/95 National Farmers’ Union and Others [1997] ECR I-4559, paragraph 61; Case C-152/09 Grootes [2010] ECR I-0000, paragraph 66; and Case C-236/09 Association belge des Consommateurs Test-Achats and Others [2011] ECR I-0000, paragraph 28)

(a) a declaration that the application to him of the provisions of section 3(1) of the

Representation of the People Act 1983 insofar as he seek to be able to be included

in the Electoral Register in respect of local Government Elections and European

Parliamentary election is incompatible with his rights under Article 20(2)(b) of the

Treaty on the Functioning of the European Union (“TFEU”) and separately with

his rights under Article 40 of the Charter of Fundamental Rights of the European

Union (“CFR”);

(b) an order requiring the Electoral Registrar to include the applicant on the Electoral

at the address within the constituency where he currently resides under detention;

and for such an order to be made ad interim

(c) an award of Francovich damages for the contravention of the claimant’s EU law

rights

Damages for breach of EU law rights

3.11 Further, it is inherent within the European Treaty that an individual may seek and

obtain Francovich damages in respect of a contravention of his EU law rights by the

authorities of a Member State. The refusal on the part of the Electoral Registrar to

disapply Section 3(1) RPA and so accede to the applicant’s application for his name to be

entered on the Electoral Register is contrary to EU law. In principle the Electoral

Registrar’s refusal to comply with his duties under EU law sounds, as a matter of EU law

in an individual Francovich damages claim against him. 72

3.12 The right to such Francovich damages may arise even where the breach of EU law

(including Treaty articles) has been committed by national legislatures. 73 As the Grand

Chamber observed in Eman and Sevinger v. Netherlands:

“As regards possible legal redress (rechtsherstel) for a person who, because of a national provision which is contrary to Community law, is refused registration on the register of electors for the election of Members of the European Parliament …. it must also be recalled that the principle of liability on the part of a Member State for damage caused to individuals as a result of breaches of Community law for which it can be held responsible is inherent in

72 Case C-470/03 A.G.M.-COS.MET Srl v Suomen valtio, Tarmo Lehtinen [2007] ECR I-2749; Case C-424/97 Salomone Haim v. Kassenzahnärztliche Vereinigung Nordrhein [2000] ECR I-5123)73 See: Conjoined Cases C-46/93 Brasserie du Pêcheur v. Germany, C-48/93 R. v. Secretary of State for Transport, ex parte Factortame Ltd. (No. 3) [1996] ECR I-1029; R v Secretary of State for Transport ex parte Factortame Ltd & Others (No 5) [2000] 1 AC 524

the system of the Treaty, and that a Member State is thus required to make reparation for the damage caused where the rule of law infringed is intended to confer rights on individuals, the breach is sufficiently serious and there is a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties

…

[I]t is for the national law of each Member State to determine the rules allowing legal redress for a person who, because of a national provision that is contrary to Community law, has not been entered on the electoral register for the election of the members of the European Parliament of 10 June 2004 and has therefore been excluded from participation in those elections. Those remedies, which may include compensation for the loss caused by the infringement of Community law for which the State may be held responsible, must comply with the principles of equivalence and effectiveness” 74

3.13 In Alajos Kiss v. Hungary 75the European Court of Human Rights awarded €3,000 by

way of just satisfaction damages in respect of an applicant who – in accordance with the

requirements of the Hungarian Constitution itself – had been excluded from the electoral

register solely on the strength of his placement under partial guardianship amounted to a

violation of Article 3 of Protocol No. 1. In all the circumstances the sum sought by way

of Francovich damages is a reasonable approach to take by way of obtaining an effective

remedy for breach of his EU law protected rights.

Right to legal aid for vindication of EU Law rights

3.14 As a public authority the Legal Services Commission are bound to have regard to and

to apply directly effective provisions of EU law even over and against provisions of

national law. In DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v.

Germany 76 the CJEU found that a blanket prohibition in German law on the possibility of

legal persons applying for and obtaining receiving legal aid to pursue a civil claim for

(Francovich) damages against the German State before the German court was contrary to

the requirements of Article 47(3) CFR (which provides that “legal aid shall be made

available to those who lack sufficient resources in so far as such aid is necessary to ensure

effective access to justice”). The CJEU found that any decision on legal aid should take,

74 Case C-300/04 Eman and Sevinger v. Netherlands [2006] ECR I-8055 at paragraphs 68-9, 7175 Alajos Kiss v. Hungary [2010] ECHR 38832/06 (Second Section, 20 May 201076 In Case C-279/09 DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v. Germany 22 December [2010] ECR I-nyr

instead into account all the circumstances of the individual case and any refusal,

restriction or imposition of conditions on the granting of legal aid should comply with the

requirements of the test of proportionality.

3.15 The judgment in DEB is of more general interest for the following two reasons. First

the CJEU confirmed that (at paragraph 35) provisions of the Charter which parallel rights

already set out in the ECHR may be relied upon to give at least as good as, and in

principle greater, protection than that currently afforded to the ECHR rights under

Strasbourg jurisprudence. Secondly, the Charter right to legal aid was treated by the

CJEU as a general and independent substantive right in its own terms and context , rather

than as nothing more than that codified reflection of the limited pre-existing provisions of

EU secondary law – notably Council Directive 2003/8/EC – which provided for the

harmonisation of legal aid availability for natural persons only, and that within the

context of cross-border disputes not concerned with (self-) employment issues

6 December 2011

Matrix Chambers

Griffin Building

Gray’s Inn

London WC1R 5LN AIDAN O’ NEILL QC