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Abstract
The ECJ in Metock prohibited Member States from applying a condition of prior lawful residence in another Member State to family members of EU citizens wishing to access rights of residence derived from Community law. This article considers the background to this case and looks at the substantive implications for the operation of national immigration law. It identifies the reluctance of some Member States to implement the decision, characterized by an overly broad interpretation of the scope of discretion afforded under the Directive. These measures form pArt. of a broader failure of Member States to give full effect to the Citizens' Rights Directive. The uneasy distinctions drawn by the granting of enhanced rights of family reunification to migrant EU citizens but not to static Member State nationals, combined with the circumvention of the judgment by many Member States, illustrate a need to strengthen the concept of European citizenship at the national level.
Acknowledgements
With thanks to Jo Shaw and Brendan Donnelly for their helpful comments on earlier drafts.
Notes
1. This principle was enunciated in Case C-370/90 The Queen v. Immigration Appeal Tribunal et Surinder Singh, ex parte Secretary of State for Home Department [1992] ECR I-4265 (the ‘Singh’ case) and states that where an EU citizen has exercised her freedom of movement, upon return to the Member State of which she is a national she and her family members are entitled to at least the same rights as if they had moved to another Member State.
2. The UK adapted the Immigration (EEA) Regulations 2000 (the precursor to the current 2006 Regulations) following Akrich to require that a non-EU national family member have prior lawful residence in another Member State in order to derive rights under the Singh principle. This provision was substituted from February 2005 by SI 2005/47.
3. On the bifurcation of sources of residence rights for family members, see Costello Citation2009, cf. Currie Citation2009.
4. Currie Citation2009 notes that the procedure has only been used on two other occasions.
5. Such justification may be necessary if the Directive itself was challenged on the basis of lack of Community competence. Although the Court addressed this issue in the judgment, this was not a necessary point for determining the issue in hand, which was able to be determined purely by judicial interpretation of the Community instrument.
6. Including same-sex partnership if such partnerships are recognised as equivalent to marriage in national law.
7. It is acknowledged that these provisions do not guarantee that EU citizens and their family members will not require social assistance, and that on the contrary EU citizens who are economically active are entitled to the same social benefits as comparable nationals of the host Member State. This notwithstanding, the condition does ensure that all EU citizens and their family members have some source of income available to them and therefore reduces the potential of a drain on national welfare resources.
8. Peers contends that the representations made by the UK indicate an intention to ignore the judgment of the ECJ and constitute a re-interpretation of Community law through the dictat of internal ministries (Peers 2009).
9. See House of Commons Select Committee on European Scrutiny, 34th Report, in which the Minister of State Home Office reports on his representations made during the discussion of the Metock judgment at the JHA council meeting of 25 September 2008. See also Council document 15903/08 prepared by the UK delegation to the JHA Council meeting.
10. The requirement attaches only to those who are subject to immigration clearance, which following Metock does not include non-EU national family members of EU citizens.
11. Currie points to the development of an ‘insurgent attitude by some Member States and potential non-compliance with Community Law’ (Currie Citation2009, p. 9).
12. Ireland passed the European Communities (Free Movement of Persons) (Amendment) Regulations in July 2008, which removed the condition of prior lawful residence in the national legislation implementing the Directive.
13. The explicit condition to this effect was included within the Immigration (EEA Regulations 2006) in the provisions concerning the ‘Surinder Singh’ scenario, but was substituted from February 2005 by SI 2005/47.