2011 11 Migrants

Thursday 1 December 2011

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The case of Dereci & Ors (European citizenship) [2011] EUECJ C-256/11 (15 November 2011) concerned 5 families where third country nationals wished to join family members in Austria, all of whom were Austrian citizens but had never exercised free movement rights under EU law. For instance, Mr Dereci, who is a Turkish national, entered Austria illegally and married an Austrian national by whom he had three children who are also Austrian nationals and who are still minors. Mr Dereci currently resided with his family in Austria. The main issue in the case was the extent to which the case of Ruiz Zambrano (C-34/09) applied to their situations. In its judgment the CJEU followed Zambrano and McCarthy (C-434/09) in holding that the Citizen’s Directive 2004/38 did not apply, nor did Directive 2003/86, which deals with the conditions for the exercise of the right to family reunification by third country nationals residing lawfully in the territory of the Member States. The Court then identifies the criterion or by which to judge whether there has been or would be a breach of the right to the genuine enjoyment of the substance of the rights conferred by virtue of EU citizenship and holds that it is limited to situations in which the Union citizen has, in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole (para 66). This criterion is outside the ambit of subordinate legislation (eg the Citizens' Directive) and only applies exceptionally (para 67). Accordingly, while it may seem desirable to a Union citizen to keep his or her family together that is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted (para 68). The Court goes on to say that this is without prejudice to the question whether, on the basis of other criteria, inter alia, by virtue of the right to the protection of family life, a right of residence cannot be refused (para 69) (click here for transcript).

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