Legal Briefing

Recent developments: EU law

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Human resources | 01 November 2011

When an EU citizen is issued with a registration certificate valid for five years, or a family member is issued with a residence card also valid for five years, they will not automatically have acquired a right of permanent residence under Article 16 Directive 2004/38/EC at the end of that period. In Secretary of State for Work and Pensions v Maria Dias [2009], which was referred by the Court of Appeal, the Court of Justice of the European Union (formerly the European Court of Justice) has confirmed that the person must have fulfilled the underlying conditions of their residence during those five years. Thus, an EU citizen must have been labour employed/self employed or self sufficient (ie a qualified person) for five years. The five years do not have to be one continuous period. The continuity can be broken by gaps in employment of up to two years, and the qualifying periods can be aggregated in order to reach the five-year threshold.

 FREE MOVEMENT AND FAMILY MEMBERS OF BRITISH CITIZENS

Until a few years ago, people born in Northern Ireland were automatically citizens of the Irish Republic, as well as being British citizens. When a ‘third country national’ marries someone with dual British-Irish nationality, it is usually easier for the foreign spouse to obtain a residence card under the EEA Regulations 2006, as the spouse of a citizen of another member state, than to obtain leave to remain under the immigration rules. In Shirley McCarthy v Secretary of State for the Home Department [2010] however, the Court of Justice of the European Union has ruled that if the British spouse has been living in the United Kingdom and has not moved from one member state to another in the exercise of free movement rights, then the foreign spouse cannot rely on European law as a basis for staying in the UK. The British spouse derives their own right to be in the UK from their British citizenship, not from the Irish citizenship which they also have.

On the other hand, in Gerardo Ruiz Zambrano v Office National de l’Emploi [2011], the European court has held that two Belgian children whose parents were Columbian had the right, as citizens of the EU, to be bought up in the territory of the EU. In order for that to happen, they needed their parents to be with them. Hence the parents had to be given the right to reside and work in Belgium. The parents could in fact have registered the children, who were born in Belgium, as Columbians, but they did not do so. Hence the children became Belgian citizens, but they would otherwise have been stateless. The astonishing feature about the Zambrano judgment is that there had been no ‘free movement’ at all. The children had been born in Belgium, and had never moved elsewhere. This is difficult to reconcile with McCarthy, where there had been no ‘free movement’ either.