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Durham E-Theses Durham E-Theses The Impact of Union Citizenship upon Rights to Family Reunication: An Analysis of the Residence Rights of Family Members within the UK TARONI, CATHERINE,SARAH How to cite: TARONI, CATHERINE,SARAH (2014) The Impact of Union Citizenship upon Rights to Family Reunication: An Analysis of the Residence Rights of Family Members within the UK, Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/10870/ Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in Durham E-Theses • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full Durham E-Theses policy for further details. Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk 2 The Impact of Union Citizenship upon Rights to Family Reunification: An Analysis of the Residence Rights of Family Members within the UK Catherine Sarah Taroni Submitted for the degree of: Doctor of Philosophy University of Durham Department of Law 2014 Abstract This thesis explores the link between the residence rights of Union citizens and their family members and the Court of Justice of the European Union’s development of the concept of Union citizenship. The Court has not approached this development in a predictable or linear fashion, and the cementing of Union citizenship as a status capable of leading to residence rights in the form of Directive 2004/38 made the continuation of a flexible and expansive approach more difficult. This thesis examines the UK’s implementation of both the Citizens’ Directive and other EU sources of rights of residence and compares the rights of UK citizens with links to EU law to those without any possibility of relying on EU provisions within the UK. It is contended that Union citizenship has had a greater impact upon rights of residence for Union citizens and their family members than would have been anticipated from either the Treaty provisions or Directive 2004/38. The importance of EU rights of residence is particularly high in the UK, given the stringent requirements of the Immigration Rules concerning non-EU immigration. Treaty rights can circumvent restrictive UK provisions, and the approach of the UK judiciary in applying EU concepts in cases concerning the UK Immigration Rules is important in this respect. The fundamental rights implications of the Lisbon Treaty are assessed, and it is argued that the Court's continuing activism in relation to family rights is only in respect of Treaty rights, and that this has not been applied to the new Charter of Fundamental Rights. As such, the Court has failed to link Union citizenship and the Charter, which could have made for a more coherent sense of citizenship within the EU, but instead separates the application of fundamental rights from the unique concept of Union citizenship. Contents Chapter One Union Citizenship and Residence Rights: Directive 2004/38 1 Chapter Two The UK approach to the residence of Family Relatives of Union citizens 29 under Directive 2004/38 Chapter Three Residence Rights of TCN Family Members: Rights under Directive 59 2003/86 compared to UK Citizens’ and TCN settled residents’ partners’ rights of residence within the UK under the Immigration Rules Chapter Four EU Residence Rights from beyond Directive 2004/38: Complex cross- 88 border links and developing theories Chapter Five Residence Rights from Article 20 TFEU: The Court’s bravest leap? 110 Chapter Six The Lisbon Treaty and Fundamental Rights: The Charter of 138 Fundamental Rights and pledge of ECHR Accession Conclusions Union Citizenship and Residence Rights as interpreted by the CJEU and 171 applied within the UK Abbreviations AIT Asylum and Immigration Tribunal BverfG Bundesverfassungsgericht – German Federal Constitutional Court CFREU Charter of Fundamental Rights of the European Union CJEU Court of Justice of the European Union CPAS Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve EAT Employment Appeals Tribunal ECHR European Convention on Human Rights ECO Entry Clearance Officer ECtHR European Court of Human Rights EEA European Economic Area HRA Human Rights Act IAC Immigration and Asylum Chamber OFM ‘other family member’ as defined in Article 3(2)(a) of Directive 2004/38 SIAC Special Immigration Appeal Commission TCN Third Country National TEU Treaty on European Union TFEU Treaty on the Functioning of the European Union The copyright of this thesis rests with the author. No quotation from it should be published without the author's prior written consent and information derived from it should be acknowledged. I am extremely grateful for the comments and support of my supervisors, Professor Rita de la Feria, who guided me to submission, and Professor Eleanor Spaventa, who supervised my initial study at Durham University Law School. Their enthusiasm for and knowledge of EU law has greatly influenced this Union citizen. I am also grateful to Professor Joe Painter of the Geography Department, who interviewed me with Professor Spaventa for my PhD scholarship, and saw potential worthy of an award – the financial support of the Durham University Interdisciplinary Scholarship has been invaluable to me. I am also grateful for the understanding and patience of my long-suffering family and friends, who have been informed many times of their rights under EU law should they ever face immigration issues. Chapter One Union Citizenship and Residence Rights: Directive 2004/38 This chapter introduces the concept of Union citizenship as well as the ‘Citizens’ Directive,’ Directive 2004/38.1 At national level, citizenship and residence rights are inherently linked: if you possess the citizenship of a country, it can generally be assumed you have the right to live there.2 At EU level, the situation is not so simple. To explore the links which have been established between Union citizenship and rights to reside under EU law, this chapter is split into two main sections. The first section introduces the concept of Union citizenship and considers its impact upon the rights of Union citizens and their family members: it assesses the judicial approach to the concept and highlights some of the controversy it has provoked. This section shows that, far from being simply an ‘added extra’, Union citizenship can be of fundamental importance and determinative of rights. The second section assesses rights of residence for Union citizens and their family members found within Directive 2004/38,3 and the restrictions Member States can place upon these. Its focus is also upon the influence of the Court of Justice of the European Union (CJEU) in shaping these rights, and on the institutional balance in determining the rights of Union citizens in relation to residence. It considers the impact of the Directive upon pre-existing rights of residence and demonstrates that the Directive made important changes both in substantive law and in the approach which has to be taken by Member States: the Directive granted residence rights to ‘citizens’ rather than workers or students in particular, and thus indelibly linked Union citizenship with residence rights under EU law. The reason for which the Directive, a piece of secondary legislation, is considered prior to rights of residence derived from primary Treaty rights which the Directive restricts is for purely 1 Council Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004, on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, OJ L 158, 30.4.2004, 77–123 2 See Article 3 Protocol 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto as amended by Protocol No. 11, (Strasbourg, 16.IX.1963) ETS 46 3 There is no automatic right to live in any given Member State – it is necessary to qualify for residence, as discussed in this chapter 1 practical reasons.4 In order to apply for residence rights in a Member State, Union citizens and their family members will not turn to the Treaty or seek information on its provisions: instead, they need to know their exact entitlements under secondary legislation, and the hurdles they must pass in order to have their rights recognised. To understand the residence rights Union citizens and their families are likely to rely upon, the Directive is thus essential to understand. 1. Union Citizenship: A Meaningful Status Long before its introduction by the Maastricht Treaty,5 there was discussion of various forms of European citizenship,6 though the creation of a citizenship was not inevitable for a supranational community originally concerned with ensuring peace and prosperity.7 Union citizenship is somewhat separate from the internal market developments which took place within the development of the early EU: it has its own section in the Treaty,8 and its very purpose is different from that of the four fundamental freedoms.9 Union citizenship is not intended to link Member States economically, but instead to strengthen the bonds between the EU and its people.10 This section will highlight the rights of Union citizens under EU law, explore how Union citizenship is established and what control the EU has over its removal, and will also discuss the impact of Union citizenship upon the recognition of an individual’s rights contained in secondary legislation so as to enable analysis of rights to family reunification in later chapters.
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