The Right to Free Movement in European Union Law

The Right to Free Movement in European Union Law

UNDER EUROPEAN UNION (previously European Community) law, nationals of EU Member States have long since had the right to move and reside in a Member State other than that of their nationality. This right has traditionally served to enable the free movement of persons which, together with the free movement of goods, capital and services, underpins the realisation of an internal market as a primary objective of the Union.¹ However, with the introduction of Union citizenship in the Treaty of Maastricht, nationals of EU Member States obtained the right to free movement independent of economic purposes. Together, EU citizenship and the free movement of persons currently provide the basis on which EU citizens are entitled to move and reside in EU Member States, subject to only very limited restrictions.

This chapter describes the legal framework regarding the right to free movement of EU citizens, as well as certain closely related rights. These include, first of all, the right of EU citizens to be accompanied by their family members. On the basis of this right, these family members are also entitled to move and reside in EU Member States regardless of their own nationality. Another closely related right is the right to free movement of nationals of Member States of the European Economic Area (EEA), which is laid down in the Agreement on the European Economic Area (the ‘EEA Agreement’).² For Swiss nationals, a similar right is guaranteed by the EC-Switzerland Agreement on the free movement of persons (the ‘EC-Switzerland Agreement’).³

The aim of this chapter is to understand the contents and scope of the right of free movement provided for in EU law and of the restrictions imposed on the legislative competence of the Netherlands. In particular, it will be examined whether the relevant provisions of EU law leave Member States room to enact integration requirements, such as those laid down in the Dutch Act on Integration Abroad (AIA). At the end of the chapter, the AIA is assessed to see whether it respects the rights granted by EU law.

The right to free movement of EU citizens is, nevertheless, subject to restrictions. As mentioned, Articles 45, 49 and 56 TFEU grant the right to enter and reside in another Member State only to those (economically active) EU citizens coming within the personal scope of these provisions. In addition, this right may be limited on grounds of public policy, public security or public health.⁹ Under Article 21 TFEU, the right to free movement laid down therein is subject to the conditions and limitations laid down in the TEU and the TFEU and the measures adopted to give them effect.

With regard to the right of EU citizens to move and reside in the Member States, the Residence Directive distinguishes between the rights of exit and entry, the right to short-term residence (up to three months), the right to residence for more than three months and the right to permanent residence. Considering the object of this study, the discussion in this section focuses on the provisions concerning the acquisition of the right to residence for more than three months.

The Residence Directive applies to all Union citizens who move or reside in a Member State other than that of which they are a national.¹⁴ According to Article 20(1) TFEU, a Union citizen is every person with the nationality of an EU Member State. EU citizens are entitled to stay in another Member State for more than three months, subject to the conditions laid down in Article 7(1) of the Residence Directive. Basically, this provision grants the right of residence to EU citizens who are economically active (as workers or self-employed persons) or who have health insurance and sufficient resources to ensure that they will not become a burden on the social assistance system of the host Member State. Students are entitled to residence, provided they have health insurance and can assure the host Member State that they will not become a burden on the social assistance system.

Article 27(1) Residence Directive provides that the right of EU citizens to reside in the Member States may be restricted on grounds of public policy, public security or public health. Thus Member States may refuse the residence of EU citizens on the basis of one of these exceptions. Application of these exceptions must nevertheless be in compliance with the conditions and procedural safeguards laid down in Chapter VI of the Residence Directive, as well as with the general principles of EU law.¹⁷ Article 27(1) explicitly provides that the specified grounds may not be invoked to serve economic ends.

For EU citizens falling within the scope of the Residence Directive, the acquisition of the right of residence is subject to no conditions other than the above. There is consequently no scope for Member States to make these persons’ residence subject to an integration exam abroad, nor to any other conditions relating to their integration.

It follows from the previous sections that every EU citizen is, in principle, entitled to reside in another Member State on the basis of the treaty provisions relating to the right of free movement, in particular Article 21 TFEU. This right is subject only to limited conditions, which must moreover be applied in conformity with the general principles of EU law. It may therefore be concluded that, in most cases, the residence of EU citizens in another Member State will be a matter of EU law.

Provided the granting of a national residence right does not come within the scope of any other provisions of EU law,¹⁹ it must be assumed that this right is granted subject to national conditions, possibly including conditions of integration. However, as said above, this possibility only exists with regard to EU citizens who do not meet the limited conditions imposed by the Residence Directive or whose right of residence has been terminated on grounds of public policy, public security or public health. Apart from the fact that this situation will not frequently occur, it is also rather unlikely that, under these circumstances, Member States would be willing to grant a right of residence under national law. It must be concluded that, although the possibility of imposing integration conditions for the admission of EU citizens is perhaps not entirely non-existent, it is of little practical relevance.

The derivative character of the above rights means that family members of an EU citizen are only entitled to residence in the Member State in which that EU citizen resides.²³ Another consequence is that family members can only claim a right of residence in situations where refusal to admit them would impede the EU citizen’s exercising his or her rights and freedoms granted by the TFEU.²⁴ This does not necessarily imply that the right to family reunification is limited to situations in which the EU citizen has physically moved to a Member State other than that of his nationality. In Carpenter, the CoJ accepted that EU citizens are entitled to be joined by their family members in their own Member State when they provide cross-border services in another Member State.²⁵ Additionally, the Court accepted that EU citizens are allowed to be accompanied by their family members when they move back to their own country after having exercised their right of free movement elsewhere in the EU. This right exists irrespective of whether the EU citizen is going to engage in economic activity in his or her own Member State upon his or her return.²⁶ More recently, it has become clear that national measures concerning family reunification can also impede the rights of EU citizens outside the free movement context. In Ruiz Zambrano, the CoJ formulated as a general criterion that Article 20 TFEU ‘precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status’. In that case, the Court found that the right of dependent children, who are EU citizens, to reside in the territory of the EU can be impeded if a right of residence is not granted to their parents or carers (see further section III.E).²⁷

Family members of EU citizens have a right of residence in the Member State where the EU citizen resides, regardless of their own nationality. This follows logically from the fact that their rights derive from those of EU citizens: it is their capacity as family members that matters rather than their coming within the personal scope of the treaty provisions on free movement. Thus, the definition of who is a ‘family member’ in Article 2(2) Residence Directive covers EU citizens as well as third-country nationals.

Under the Residence Directive, the family members entitled to be admitted to the Member State where the EU citizen resides are:

• the spouse or registered partner (if the legislation of the host Member State treats registered partnerships as equivalent to marriage);

• the children, as well as the children of the partner or spouse, provided that they are under 21 or dependent on the parents;

• the dependent direct relatives in the ascending line, as well as those of the spouse or partner.³⁰

Lastly, the Residence Directive applies irrespective of whether a family member who is a third-country national had legal residence in the EU before joining the EU citizen. The requirement of previous lawful residence appeared to follow from the CoJ’s judgment in Akrich, where the Court held that the Moroccan spouse of an EU citizen could not ‘repair’ his irregular residence status by moving with his wife to another Member State.³² However, the Court later dismissed this position in Metock, where it concluded that the condition of previous lawful residence was incompatible with the Residence Directive.³³ In the same judgment the CoJ determined that the directive applies irrespective of when or where the marriage between the EU citizen and the third-country national took place or how the third-country national entered the host Member State.³⁴

The conditions for exercising the right of free movement by family members of EU citizens are also laid down in the Residence Directive. These conditions may differ depending on whether the family member has the nationality of an EU Member State or of a third country.³⁵ The discussion in this section again focuses on the conditions for residence of more than three months.

For persons who are family members of EU citizens within the meaning of Article 2(2) Residence Directive, no residence conditions may be imposed other than those set out above. For these persons, therefore, Member States are not entitled to make admission to their territory dependent on integration conditions. The following subsections consider the position of family members not falling within the scope of Article 2(2) Residence Directive. Section III.D concerns family members coming within the scope of Article 3(2) Residence Directive, whereas section III.E deals with persons entitled to reside in a Member State because of being the primary carers of their children.

In principle, EU citizens are not entitled to family reunification with family members other than those mentioned in Article 2(2) Residence Directive. Nevertheless, Article 3(2) Residence Directive contains an obligation for Member States to facilitate, in accordance with their national legislation, the entry and residence of persons who are dependants or members of the household of EU citizens in the Member State of origin. Article 3(2) also covers family members who, because of serious health reasons, strictly require to be cared for by the Union citizen, the unmarried partner with whom an EU citizen has a durable and duly attested relationship and the dependent parents of EU citizens who are students (and the parents of their spouses or partners).³⁷

Nonetheless, if a request for family reunification is made with regard to a person covered by Article 3(2), the Member State concerned has to assess this request on an individual basis to see whether a right of entry or residence may be granted. This clearly follows from the provision itself, which states that ‘the host Member State shall undertake an extensive examination of the personal circumstances of the persons concerned and shall justify any denial of entry or residence to these people’. Additionally, the preamble of the directive states that the situation of family members not covered by Article 2(2) must be ‘examined by the host Member State on the basis of its own national legislation in order to decide whether entry and residence could be granted to such persons’.⁴⁰

The term ‘facilitate’ suggests that the examination conducted by the Member State should, in principle, be aimed at granting a right of entry or residence on an individual basis. This implies that due weight must be given to the interests of the family and that refusal of entry or residence must be based on reasons of sufficient substance. All the circumstances of the case have to be taken into account in this respect, in particular the family member’s relationship with, and his or her financial or physical dependence on the Union citizen. The legislation of a Member State that gives effect to Article 3(2) Residence Directive also has to be in conformity with EU fundamental rights and with the general principles of EU law. Here, the right to respect for family life is of particular relevance.⁴¹ While this right does not offer any more specific criteria for the implementation of Article 3(2) than those set out above, it may serve as additional support for a decision in favour of family reunification.

As a final observation with regard to the family members of EU citizens, attention may be drawn to a series of CoJ judgments that identify new rights of residence in addition to those covered by the Residence Directive. These judgments concern the rights of children, as well as those of the persons responsible for them as their primary carers.

First, in Baumbast, the Court addressed the position of an EU migrant worker’s children who moved with that worker to another Member State and enrolled in the local school system. The CoJ decided that, in such circumstances, the children remained entitled to reside in that Member State under Article 12 of Regulation 1612/68 to pursue their education, even after their parent ceased to be a migrant worker. The Court also held that the children were entitled to be accompanied by the other parent, who was their primary carer, so that their right of residence would be facilitated. With regard to both the children and their carer, the right of residence was held to exist irrespective of their nationality.⁴² In the recent cases of Ibrahim and Teixeira the CoJ not only confirmed its judgment in Baumbast, but also specified that the right of residence of the child’s carer is based only on Article 12 Regulation 1612/68 and is not subject to the conditions laid down in the Residence Directive.⁴³ In particular, the Court held that the right continues to exist even if the parent has insufficient resources to avoid becoming a burden on the social assistance system of the host Member State. It did not matter in that respect that, in Ibrahim, the parent who was an EU migrant worker had only held that status for less than a year.

The above case law shows that, in addition to the rights governed by the Residence Directive, Member States may be obliged to allow the residence in their territory of EU citizens and third-country nationals on the grounds that these persons are the primary carers of children who are EU citizens and whose rights would otherwise be impeded. The precise extent of this obligation is not yet clear.⁴⁶ Given the stance taken by the CoJ in Ibrahim and Teixeira, however, it seems almost certain that conditions relating to this right of residence (including integration requirements) will be considered incompatible with the relevant provisions (Art 12 Regulation 1612/68 and Art 21 TFEU). It does not seem to be relevant in this respect whether the parent was already residing in the Member State concerned when the child gained his or her right of residence, providing the parent is the primary carer and the child is not able to exercise his or her right independently.

A third category of persons with free movement rights similar to those of EU citizens includes nationals of the States Parties to the Agreement on the European Economic Area (the EEA Agreement),⁴⁷ and the family members of those nationals, regardless of their nationality. The EEA Agreement, to which both the EU and its Member States are parties, contains provisions on the free movement of workers, the right to establishment and the free movement of services that are substantially the same as those laid down in the TFEU (section II).⁴⁸ On the basis of these provisions, nationals of EEA Member States are entitled to move and reside freely in the territories of the EU Member States. Family members of EEA nationals are not mentioned in the EEA Agreement. Like the family members of EU citizens however (section III), they derive their right of entry and residence from the right to free movement of the EEA nationals.

A difference between the EEA Agreement and the TFEU is that the former does not contain any provisions on citizenship comparable to Articles 20 and 21 TFEU. As a result, EEA nationals are not entitled to free movement merely on the grounds of their nationality. The right to entry and residence is therefore available only to EEA nationals who move for the purpose of exercising economic activities, as foreseen by the Agreement.⁵³ Despite the CoJ’s expansive interpretation of the economic free movement provisions, it follows that the rights of EEA nationals (and consequently those of their family members) are more limited than those of EU citizens. This difference may become more significant in the future if free movement rights are increasingly linked to EU citizenship instead of to market participation.⁵⁴

Where EEA nationals and their family members have a right to enter and reside in EU Member States, it follows from the above that the conditions governing these rights are the same as for EU citizens and their family members. Consequently, it may be concluded that the admission of EEA nationals and their family members who are entitled to free movement may not be conditioned upon the fulfilment of integration conditions. For family members falling within the scope of Article 3(2) Residence Directive, the Member States are obliged to facilitate entry and residence subject to the conditions discussed in section III.D.⁵⁵

For Swiss nationals and their family members, the right to free movement is regulated by the Agreement between the EC and its Member States on the one hand, and the Swiss Confederation on the other, on the free movement of persons (the ‘EC-Switzerland Agreement’).⁵⁶ This Agreement aims, inter alia, to accord to nationals of Switzerland a right of entry and residence in the territory of the EU Member States.⁵⁷ Provisions relating to the entry and residence of Swiss nationals and their family members are laid down in Articles 3–7 and in Annex I pertaining to the Agreement.

The right to free movement of Swiss nationals is clearly modelled on that of EU citizens and reflects the acquis communautaire as it stood when the EC-Switzerland Agreement was signed.⁵⁸ Article 16(1) provides that

the Contracting Parties shall, in order to attain the objectives pursued by the Agreement, take all measures necessary to ensure that rights and obligations equivalent to those contained in the legal acts of the EC to which reference is made are applied in relations between them.

It is unclear whether this obligation also concerns the rights and obligations laid down in the EU Residence Directive. Although this directive was adopted after the entry into force of the EC-Switzerland Agreement and is not mentioned by it, it replaces a number of directives to which the Agreement refers.⁵⁹ Elements of the Residence Directive that are more favourable than those of the EC-Switzerland Agreement include, for example, the lack of a housing requirement for the family reunification of Swiss workers and a right of family reunification with registered partners.

Swiss nationals are entitled to enter EU Member States if they are in the possession of a valid identity card or passport. Family members who are not nationals of an EU Member State or Switzerland may require an entry visa. However, the Contracting Parties must grant these persons every facility for obtaining any necessary visas.⁶¹ It is submitted that the issue of an entry visa to family members of Swiss nationals may not be subjected to any conditions other than those that must be fulfilled in order to qualify for entry or residence under the Agreement as this would clearly undermine the Agreement’s effectiveness in relation to the stated objective of according a right of entry to Swiss nationals.

Swiss nationals with the right to reside in an EU Member State are entitled to be joined by their family members, regardless of their nationality.⁶⁵ Consequently, as for family members of EU and EEA nationals, the right of residence of family members of Swiss nationals depends on the exercising of the right of free movement by those Swiss nationals. According to the definition in the EC-Switzerland Agreement, family members are:

• the spouse and relatives in the descending line, the latter if they are under the age of 21 and dependent;

• dependent relatives in the ascending line of the Swiss national and his or her spouse;

• in the case of a student, the spouse and dependent children.⁶⁶

With regard to the family members of workers, the EC-Switzerland Agreement requires the worker to have adequate housing.⁶⁷ Other than that, the only conditions for the residence of family members of Swiss nationals are that they must possess the document with which they entered the territory and proof of their family relationship and, if applicable, their dependency.⁶⁸

As a final observation, it must be mentioned that Article 3(2) Annex I to the EC-Switzerland Agreement contains a clause similar to Article 3(2) Residence Directive (section III.D). According to this provision, the Contracting Parties have agreed to facilitate the admission of family members who do not have a right to free movement, but who are dependent on the Swiss national or who lived with that national in the country of origin. It is submitted that this ‘obligation to facilitate’ corresponds to that laid down in the Residence Directive. This means that EU Member States may set conditions (including integration conditions) for the entry and residence of the family members covered by this provision, but that requests for family reunification must always be subject to an individual assessment with a view to granting admission.

One more category of beneficiaries of the right to free movement in the EU is that of third-country nationals who have obtained the status of ‘long-term resident’. Unlike EU citizens, long-term resident third-country nationals (‘long-term residents’) do not derive their right of free movement from the provisions of the TFEU on citizenship or the free movement of persons. Instead, a legal basis can be found in the treaty provisions concerning policies on border checks, asylum and immigration.⁷⁰