Workbook FM Of Persons

Question 0

What was said in the case of Kaur?

Answer 0

That if a person does not hold the nationality of a member state then he is not a national.

Question 1

Who is a citizen of the EU?

Answer 1

Anyone holding the nationality of a member state (Article 20 TFEU, Zhu-Chen - Z born in Belfast to Chinese parents, this gave her Irish nationality).

Question 2

Can you still be an EU citizen if you have dual nationality?

Answer 2

Yes (Micheletti).

Question 3

Do you need to be economically active to invoke EU citizenship status?

Answer 3

No (D’Hoop, Collins - examples of unemployed)
(Bidar, Forster - examples of students)
(Tas-Hagan example of retired person)

Question 4

Can children be citizens?

Answer 4

Yes (Zhu-Chen, Ruiz Zambrano).

Question 5

What does Article 21 of the TFEU confer?

Answer 5

The right to move and reside in another member state. It also prohibits any national legislation which puts a citizens a disadvantage (Pusa).

Question 6

What was said in the case of Pusa?

Answer 6

That national legislation that places nationals at a disadvantage because they have exercised their right to move and reside are in breach of Article 21 of TFEU. In this case a Finnish national went to live in Spain on retirement but Finnish legislation meant he would receive a reduction in his state pension.

Question 7

What conditions are citizens subject to under Article 21 of the TFEU?

Answer 7

Those measures laid out in Directive 2004/38. For example the right to reside for up to 3 months (article 6(1)) claiming residency beyond 3 months (article 7(1) says they need to be working, in education or have sufficient resources not to be a burden).

Question 8

What does Article 18 of the TFEU say?

Answer 8

Discrimination on grounds of nationality shall be prohibited.

Question 9

Give case examples of when a citizen has used Article 18 to claim equal access to financial benefits?

Answer 9

Bidar - student loans
Collins - job seekers allowance
Forster - student maintenance grants

Question 10

What types of discrimination are there under Article 18?

Answer 10

Direct and indirect discrimination.

Question 11

What is direct discrimination?

Answer 11

When it is based on differences in nationality (Martinez Sala - child raising allowance payable only to German nationals).

Question 12

Can direct discrimination be justified?

Answer 12

Usually not.

Question 13

What is indirect discrimination?

Answer 13

This is when it is based on neutral criteria such as residency i.e. you need to be living in the country for a certain period of time (D’Hoop, Bidar, Forster).

Question 14

In order to justify a restriction on citizens rights what must a restriction be?

Answer 14

Tas-Hagan said it must be:

• based on objective considerations of public interest
• independent of the nationality of the persons concerned (must be non-discriminatory or indirectly)
• appropriate (must be capable of achieving the desired objective)
• proportionate (must be necessary meaning it must impose a minimum restriction)

Question 15

What are objective considerations?

Answer 15

• link to the state (Tas-Hagan - had to be resident in the state when applying for disability benefit)
• integration (Bidar - integration into society here being residency requirements)
• need to monitor the status of claimants (De Cuyper - residency requirement so that monitoring can continue)
• prevent benefit tourism (Patmalniece - claimants for state pension had to be resident in UK was jutifiable)

Question 16

Who is a family member of a citizen?

Answer 16

Article 2(2) of Directive 2004/38 says a family member is a:

• spouse
• registered partner
• direct descendants
• direct relatives in the ascending line

Question 17

What is a spouse?

Answer 17

Married couples only, cohabiting partners are not spouses (Reed).

Question 18

Is a married couple who are separated still a spouse?

Answer 18

Yes (Diatta) they no longer qualify as a spouse when they are divorced (Baumbast).

Question 19

When a married couple divorce, do they lose their right of residence?

Answer 19

Article 13(2) says they do not lose their right where:

• the marriage lasted at least 3 years including one in the host member state
• the spouse has custody of the children
• having been the victim of domestic abuse
• spouse has a right to access of a minor

Question 20

Where can we find information on descendants?

Answer 20

Article 2(2)(c) of Directive 2004/38.

Question 21

What is a descendent?

Answer 21

Any member of their descendent family provided they are under 21 i.e. Children and grandchildren.

Question 22

What about descendants who are over the age of 21?

Answer 22

They must prove they are dependent but not the reason for the dependence (Reyes).

Question 23

What is the leading case on ascendants and where can we find a definition?

Answer 23

Article 2(2)(d) defines what an ascendant is and the leading case is Jia involving involving the Chinese mother in law of a German woman working in Sweden. She was entitled to join them provided she could demonstrate dependency.

Question 24

Do other family members have any right to join a citizen in a member state?

Answer 24

They are covered by article 3(2)(a) of Directive 2004/38 which says they must be dependants or members of the household or have serious health problems which require personal care.

Question 25

What does dependant mean in the sense of other family members?

Answer 25

Rahman & Others confirmed that it was economic dependency which didn’t have to exist when the citizen moved to the member state but had to when they made the application to join them.

Question 26

What rights do other family members have?

Answer 26

They have a right to reside in the same member state as the citizen for up to 3 months (Article 6 of Directive 2004/38 and longer if they satisfy the conditions in Article 7(1) (they need to be working, in education or have sufficient resources not to be a burden).

Question 27

How can a family member acquire permanent residence?

Answer 27

Article 16(2) says they will acquire it if they have been living with the citizen for 5 years in accordance with Article 7(1).

Question 28

Can a family member acquire residency in less than 5 years?

Answer 28

Yes (Article 17(4) of Directive 2004/38) if the citizen dies but has resided continuously for 2 years (Givane) or the death resulted from an accident at work which there is no minimum residency period.

Question 29

Do family members have a right to employment?

Answer 29

Yes under Article 23 of Directive 2004/38 but non-EU family members can only take up work in the same member state as the citizen (Mattern).

Question 30

What Article gives family members the right to equal treatment?

Answer 30

Article 24(1) of Directive 2004/38, it applies to all family members irrespective of their nationality.