Family Reunification Rights of (Migrant) Union Citizens: Towards a More Liberal Approach

Abstract

Over the years, in the case‐law of the European Court of Justice (ECJ) determining the availability of family reunification rights for migrant Member State nationals, the pendulum has swung back and forth, from a ‘moderate approach’ in cases such as Morson and Jhanjan (1982) and Akrich (2003), towards a more ‘liberal approach’ in cases such as Carpenter (2002) and Jia (2007). Under the Court's ‘moderate approach’, family reunification rights in the context of the Community's internal market policy are only granted in situations where this is necessary for enabling a Member State national to move between Member States in the process of exercising one of the economic fundamental freedoms; in other words, where there is a sufficient link between the exercise of one of those freedoms and the need to grant family reunification rights under EC law. Conversely, under the Court's ‘liberal approach’, in order for family reunification rights to be bestowed by EC law, it suffices that the situation involves the exercise of one of the market freedoms and that the claimants have a familial link which is covered by Community law; in other words, there is no need to illustrate that there is a link between the grant of such rights and the furtherance of the Community's aim of establishing an internal market. The recent judgments of the ECJ in Eind and Metock (and its order in Sahin) appear to have decidedly moved the pendulum towards the ‘liberal approach’ side. In this article, it will be explained that the fact that the EU is aspiring to be not only a supranational organisation with a successful and smoothly functioning market but also a polity, the citizens of which enjoy a number of basic rights which form the core of a meaningful status of Union citizenship, is the major driving force behind this move. In particular, the move towards a wholehearted adoption of the ‘liberal approach’ seems to have been fuelled by a desire, on the part of the Court, to respond to a number of problems arising from its ‘moderate approach’ and which appear to be an anomaly in a citizens' Europe. These are: a) the incongruity caused between the (new) aim of the Community of creating a meaningful status of Union citizenship and the treatment of Union citizens (under the Court's ‘moderate approach’) as mere factors of production; and b) the emergence of reverse discrimination. The article will conclude with an explanation of why the adoption of the Court's liberal approach does not appear to be a proper solution to these problems.

Tale of Two Citizenships? Citizenship, Migration and Care in the European Union

“…21(1)), making it worth more to those who are economically active. For instance, mobile EU workers are granted a right of residence beyond three months, a right to be joined or accompanied by family members (regardless of nationality) and a right to social and tax benefits for themselves and their families (Tryfonidou, 2009). It is, of course, true that the Citizenship Directive (2004/38/EC) grants a general (up to) three-month residence to all EU citizens, regardless of involvement in economic activities.…”

Court of Justice of the European Union European Union Citizenship and the Purely Internal Rule Revisited Decision of 5 May 2011, Case C-434/09 Shirley McCarthy v. Secretary of State for the Home Department

“…Particularly in the area of family reunifi cation, the link between a contested national measure and its deterrent eff ect on the exercise of one of the fundamental freedoms has not always been very straightforward. 30 In Carpenter, for instance, the occasional provision of services to persons established in other member states by a British national living in the United Kingdom constituted a suffi cient link with EU law to guarantee a right of residence for his Philippine spouse. Despite the Court's reasoning that 'the separation of Mrs. and Mrs. Carpenter would be detrimental to their family life, and, therefore to the conditions under which Mr. Carpenter exercises a fundamental freedom', 31 there appeared to be no real connection between the applicant's ability to provide services abroad and the residence right granted to his wife.…”

Love, money and papers in the affective circuits of cross-border marriages: beyond the ‘sham’/‘genuine’ dichotomy

“…He emphasised that he was particularly interested in a European, but not Dutch, woman and asked me to search among my Eastern European hotel colleagues and my Greek network. In that way, he could benefit from the generous family migration rights conferred to spouses of EU citizens (Tryfonidou 2009; see also Wray, Kofman, and Simiç 2021). Kevin was in rush because if he did not find a woman within a month, he would have to face further bureaucratic complications.…”