Ref.

Ares(2013)3517940 - 19/11/2013

EUROPEAN COMMISSION
DIRECTORATE-GENERAL JUSTICE Directorate C: Fundamental rights and Union citizenship

Unit C.2: Union citizenship and Free movement Head of Unit

Brussels,

'

SDV. 1113

JUST/C2/MM/rg(2013)s3759328

Mr Nathan Gebert e-mail: natgeb@hoimai 1.com

Dear Mr Gebert, I acknowledge receipt of your e-mail of 16 September 2013 concerning the problems you have recently encountered in the UK. Please accept my apologies for the delay in responding to your letter, m sorry if our service did not meet your expectation. On the basis of your complaint, I assume you are a US national residing in the UK with your UK spouse and UK son. Article 21(1) of the Treaty on the Functioning of the European Union (TFEU) stipulates that every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect. The respective limitations and conditions are to be found in Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. You can download consolidated version of the Directive in English at http://eurlex.europa.cu/L ex J ri Serv/l,ex Uri Serv.do?uri==CONSLEG 2()()41.,0038:201 1061TNiPDF. As provided in Article 3(1) of the Directive, this Directive only applies to EU citizens who move to or reside in a Member State other ihan ihat of which they are a national, and to their family members who accompany or join them. Therefore the rules of this Directive are not applicable to EU citizens (and i heir family members) where they seek to move and reside in the Member State of their nationality. In recent case law, however, the Court of Justice of the European Union has examined questions related to the rights of residence which may be derived for non-EU family members of EU citizens residing in their country of nationality from the EU citizenship of the latter. In the Ruiz Zambrano judgment1, the Court stated that Article 20 of the Treaty on the Functioning of the European Union, which confers the status of EU citizen on every person holding the nationality of a Member State, precludes national measures which have the effect of depriving EU citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status as EU citizens.

Judgment of the Court of 8 March 2011 in case C-34/09 Rui: Zambrano, available at hnp://ctira,europa.eu/jurisp/cgi-bin/foTOi.pl?lang=en&Submjt=Rechercher&numaff-C-34.;()9

Commission europenne, B-1049 Bruxelles / Europese Commissie, B-1049 Brussel - Belgium. Telephone: (+32-2) 299 11 11. Office: M059 06/68. Telephone: direct line (32-2) 297 44 57. Fax: (32-2) 297 95 86. - E-mail: JUST-Citi2enship@ec.eur0pa.eu

It thus derived from this national parents of minor children would be forced genuine enjoyment of the citizens.

provision a right of residence in a Member State for non-EU dependent children who are EU citizens, where otherwise these to leave the territory of the Union and thus be deprived of the substance of the rights conferred by virtue of their status as EU

In the Dered judgment2 and other judgments that followed (for example, cases C-356/11 & 357/11 O & S), the Court provided further clarifications regarding the criterion that it had formulated in the Ruiz Zambrano judgment, declaring that it is a specific criterion, related to situations in which a right of residence may not, exceptionally, be refused to a non-EU family member of an EU citizen, because the effectiveness of EU citizenship enjoyed by that citizen would otherwise be undermined. The Court further indicated that the mere fact that it might appear desirable to an EU citizen, for economic reasons or in order to keep his family together in the territory of the Union, for his/her non-EU family members to be able to reside with him, is not sufficient to accept that the EU citizen will be forced to leave the Union territory if his/her family members are not granted a residence right. Moreover, it stated that the national authorities or courts should assess on a case by case basis whether a refusal to grant a residence right would undermine the right to protection of family life - in light of Article 7 of the EU Charter of Fundamental rights, in situations covered by EU law, and in light of Article 8 of the European Convention on Human Rights, where EU law is not applicable. Because of the very particular factual circumstances which the Ruiz Zambrano judgment concerned and the exceptional character of the criterion formulated in that judgment (as highlighted in the Dereci judgment), it is not possible to categorically affirm that the Ruiz Zambrano criterion can apply ipso facto to any other situations beyond the one at issue in Ruiz Zambrano. On the other hand however, such broader interpretations cannot be excluded in principle either, given how open-ended the Court of Justice's judgment was. For instance, when it comes to the scenario where only one parent is a third country national whilst the other is an EU citizen, one can say that in principle it could be possible to argue that a minor child who is an EU citizen might be deprived of the genuine enjoyment of the substance of his rights under art 20 TFEU if the refusal of the authorities of a Member State to grant a residence right to his third country national parent would force him to leave the EU as a whole in order to be able to continue living together with both his parents - taking into account the best interests of the child protected either under the Charter or under the European Convention on Human rights. As the Court of Justice pointed out, it is for the national authorities, including the courts to assess the particular circumstances of each individual case to determine whether it falls within the scope of application of the Ruiz Zambrano criterion.

Judgment

of

the

Court

of

15

November

2011

in

case

C-256/11

Dereci,

available

at

2^;1111?5/1;121!&^

Whether you and your family enjoy any rights under EU law on free movement of EU citizens, this must be assessed by the UK authorities and UK courts which apply EU law, as interpreted by the Court. Yours sincerely.

1\(\~ chiara Adamo

/

IMII.

Contact: Mr Michal Meduna, telephone: +32 229 59 508, michal.inedunauec.euroim.eii