2011 03 International Law

Friday 1 April 2011

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Secretary of State for Work and Pensions v Taous Lassal, Child Poverty Action Group (intervening) C-162/09, CJEU (Third Chamber) (K. Lenaerts, President of the Chamber, R. Silva de Lapuerta (Rapporteur), G. Arestis, J. Malenovský and T. von Danwitz): The European Court of Justice held that articles 16(1) and 16(4) of Directive 2004/38/EC must be interpreted as meaning that (i) continuous periods of five years’ residence completed before the date of transposition of the Directive (30 April 2006) must be taken into account for the purposes of the acquisition of the right of permanent residence pursuant to article 16(1); and (ii) absences from the host member state of less than two 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 article 16(1). This welcome but not unexpected result, ensures that many more EU citizens and their family members of any nationality have acquired the EU right of permanent residence and thus a right to reside for the purposes of eligibility tests in social welfare law. Click here for transcript.

Shirley McCarthy v Secretary of State for the Home DepartmentC-434/09 CJEU Advocate General Opinion A G Kokott: Where a Union citizen is a national of two Member States of the European Union but has always lived in only one of those two States, she cannot claim a right of residence under Directive 2004/38/EC in that State.

In this case a dual British citizen/Irish citizen who had always resided in the UK and who did not seek to argue that she was a worker, self-employed or self-sufficient, sought to argue that she could access the right of permanent residence under article 16 of Directive 2004/38/EC in order to procure a right of residence for her husband, a national of Jamaica without leave to enter or remain in the UK. Was she a beneficiary of that Directive and had she resided legally in the UK for the purposes of article 16? The Advocate General considered that she was not a beneficiary as she was static (remaining within a member state of nationality) and had not moved (to exercise free movement rights in another member state). The Advocate General also held that she would not fulfil the requirements of article 16 in any event as she had not been economically active or self-sufficient for five years. Regarding the question of whether she had been legally resident for article 16 purposes, the Advocate General considered that while foreign nationals granted residence under domestic law might be said to reside legally in this context, the same could not be said of nationals of a member state residing within that state, as the latter did not fall within the scope of the Directive not having exercised a right of free movement.

Click here for opinion.

Other matters:

The Committee on the Rights of the Child issued General Comment No 13 on 17th February 2011 addressing the issue of Article 19 (Right of the Child to freedom from all forms of violence). Click here to see the comment. The Committee provides a very wide definition of violence - see Section IV of the General Comment. In particular, it stresses that violence is not just physical violence against the child, but includes psychological / mental violence against the child; between children (bullying, harassment); self-harming (emotional and physical), that is the child's own infliction of harm on him / herself; child abuse, etc. The General Comment reminds states to ensure that judicial systems and legislative mechanisms are in place to protect the child against all kinds of violence.

Following the Supreme Court's judgment in ZH (Tanzania) v SSHD [2011] UKSC 4 (see Migrants Update February 2011), it is clear that the UNCRC and the rights it affords children is directly applicable in domestic law. The General Comment is worth a read and can be useful in framing the way practitioners ought to think about what constitutes violence against the child in ways that are beyond the conventional and well-established categories, such child abuse and corporal punishment. That violence includes violence inflicted by the child on himself / herself and bullying by one child against another is particularly important to note.

The UNCRC Complaints Mechanism met the approval of the member-states on 17th February 2011. This marks an important step toward ensuring that children have the same rights to complain about state violation directly to the Committee of the Rights of the Child as adults do currently via CEDAW and CERT. However, the process and the outcome has been subject to criticisms as well. Read more on the Child RIghts Information Network for a summary f the final drafting meeting.

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