Family Reunification Rights of (Migrant) Union Citizens: Towards a More Liberal Approach

• DOI: http://doi.org/10.1111/j.1468-0386.2009.00482.x
• Date: 01 September 2009
• Published date: 01 September 2009
• Author: Alina Tryfonidou

eulj_482634..653

Family Reunification Rights of (Migrant)

Union Citizens: Towards a

More Liberal Approach

Alina Tryfonidou*

Abstract: Over the years, in the case-law of the European Court of Justice (ECJ)

determining the availability of family reunification rights for migrant Member State

nationals, the pendulum has swung back and forth, from a ‘moderate approach’ in cases

such as Morson and Jhanjan (1982) and Akrich (2003), towards a more ‘liberal

approach’ in cases such as Carpenter (2002) and Jia (2007). Under the Court’s ‘mod-

erate approach’, family reunification rights in the context of the Community’s internal

market policy are only granted in situations where this is necessary for enabling a Member

State national to move between Member States in the process of exercising one of the

economic fundamental freedoms; in other words, where there is a sufficient link between

the exercise of one of those freedoms and the need to grant family reunification rights

under EC law. Conversely, under the Court’s ‘liberal approach’, in order for family

reunification rights to be bestowed by EC law, it suffices that the situation involves the

exercise of one of the market freedoms and that the claimants have a familial link which

is covered by Community law; in other words, there is no need to illustrate that there is a

link between the grant of such rights and the furtherance of the Community’s aim of

establishing an internal market.

The recent judgments of the ECJ in Eind and Metock (and its order in Sahin) appear

to have decidedly moved the pendulum towards the ‘liberal approach’ side. In this article,

it will be explained that the fact that the EU is aspiring to be not only a supranational

organisation with a successful and smoothly functioning market but also a polity, the

citizens of which enjoy a number of basic rights which form the core of a meaningful status

of Union citizenship, is the major driving force behind this move. In particular, the move

towards a wholehearted adoption of the ‘liberal approach’ seems to have been fuelled by a

desire, on the part of the Court, to respond to a number of problems arising from its

‘moderate approach’ and which appear to be an anomaly in a citizens’ Europe. These are:

a) the incongruity caused between the (new) aim of the Community of creating a

meaningful status of Union citizenship and the treatment of Union citizens (under the

Court’s ‘moderate approach’) as mere factors of production; and b) the emergence of

reverse discrimination. The article will conclude with an explanation of why the adoption

of the Court’s liberal approach does not appear to be a proper solution to these problems.

* Lecturer in Law, University of Leicester. This article was presented at the Eleventh Biennial EUSA

Conference which took place in Los Angeles, USA, 23–25 April 2009.

European Law Journal, Vol. 15, No. 5, September 2009, pp. 634–653.

© 2009 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

I Introduction

Over the years, in the European Court of Justice’s (ECJ) case-law determining the

availability of family reunification rights under European Community (EC) law, the

pendulum has swung back and forth from a ‘moderate approach’ in cases such as

Morson and Jhanjan1and Akrich,2towards a more ‘liberal approach’ in cases such as

Carpenter3and Jia.4Under the Court’s ‘moderate approach’, family reunification

rights in the context of the Community’s internal market policy are only granted in

situations where this is necessary for enabling a Member State national to move

between Member States in the process of exercising one of the economic fundamental

freedoms. Conversely, under the Court’s ‘liberal approach’, in order for family reuni-

fication rights to be bestowed by EC law, it suffices that a situation involves the

exercise of one of the market freedoms5and that the claimants have a familial link

with a migrant Union citizen which is covered by the Community’s secondary

legislation6—in other words, there is no need to show that there is a link between the

grant of such rights and the furtherance of the Community’s aim of establishing an

internal market. The recent Eind7and Metock8judgments (and the order in Sahin9)

have shifted the pendulum towards the ‘liberal approach’ side by making it clear that

it is not necessary that the family members of migrant economic actors have been

lawfully resident in another Member State, prior to their move to the host State where

they accompany or join the migrant; or (according to Metock and Sahin) that they

have been family members of the migrant economic actor at the time that that person

had moved to the host State.

It will be explained that the fact that the EU is aspiring to be, not only a suprana-

tional organisation with a successful and smoothly functioning market, but also a

polity, the citizens of which enjoy a number of basic rights which form the core of a

meaningful status of Union citizenship, is the major driving force behind this move. In

particular, the move towards a wholehearted adoption of the ‘liberal approach’ seems

to have been fuelled by a desire, on the part of the Court, to respond to a number of

problems arising from its ‘moderate approach’ and which appear to be an anomaly in

a citizens’ Europe. These are a) the incongruity caused between the (new) aim of the

Community of creating a meaningful status of Union citizenship and the treatment of

Union citizens (under the Court’s ‘moderate approach’) as mere factors of production;

and b) the emergence of reverse discrimination. The article will conclude with an

1Joined Cases 35–36/82, Morson and Jhanjan v Netherlands [1982] ECR 3723.

2Case C-109/01, Secretary of State for the Home Department v Akrich [2003] ECR I-9607.

3Case C-60/00, Carpenter v Secretary of State for the Home Department [2002] ECR I-6279.

4Case C-1/05, Yunying Jia v Migrationsverket [2007] ECR I-1.

5In this article, the phrase ‘economic fundamental freedoms’ will be used to refer to the free movement of

economically active persons provisions of the Treaty (ie Articles 39, 43 and 49 EC), and not to Article

18 EC, which governs the free movement of economically inactive Union citizens and which is another

fundamental freedom. The phrase ‘market freedoms’ will be used as a synonym of ‘economic fundamental

freedoms’ and, thus, as referring, also, to Articles 39, 43 and 49 EC.

6The categories of family members that have an automatic right to accompany or join the migrant in the

host Member State can be found in Article 2(2) of Directive 2004/38 on the right of citizens of the Union

and their family members to move and reside freely within the territory of the Member States, [2004]

OJ L158/77.

7Case C-291/05, Minister voor Vreemdelingenzaken en Integratie v R. N. G. Eind, [2007] ECR I-10719.

8Case C-127/08, Metock and Others v Minister for Justice, Equality and Law Reform, Judgment of

25 July 2008, not yet reported.

9Case C-551/07, Sahin v Bundesminister für Inneres, Order of 19 December 2008, not yet reported.

September 2009 Family Reunification Rights of Union Citizens

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© 2009 Blackwell Publishing Ltd.