Free Movement of People/Workers

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Introduction

Under Art 20(1) TFEU citizenship of the European Union requires the citizen to be a citizen of an MS, even dual nationals (Micheletti).

Under Art 21(1) TFEU every citizen of the Union has the right to move freely and reside in another MS subject to limitations and considerations. (Kaur) up to each MS to decide who is entitled to the nationality of the state.

Under the Citizens Directive 2004/38, the fundamental rights of the citizens are expanded.

Who can rely on Art 21(1):

  • Unemployed (Collins)
  • Students (D’Hoop)
  • Retired (Pusa)
  • Incapable of working for health reasons (Tas-Hagen)
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Challenges discrimination based on nationality

Art 18 TFEU challenges and prohibits discrimination on the grounds of nationality. Martinez Sala a Spanish national living in Germany could invoke Art 18 in conjunction with Art 21(1).

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National legislation that puts citizens at a disad

Tas-Hagen was forced to give up work for health reasons. Art 21(1) TFEU had been infringed as the Dutch rules for those who had exercised their freedom of movement rights to claim benefits from the Dutch once they had moved to Spain. 

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Invoking rights against the citizen's home state

D’Hoop Art 21(1) TFEU could be relied upon in the citizens home MS, provided that they had gone to another MS in order to exercise their free movement of rights before returning.    

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Children's Rights

Zhu and Chen established that an infant and their mother as ‘primary carer’ could rely upon the infants ‘citizen of the union’ to claim rights of residence in an MS.

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Justifying restrictions on citizens rights

A breach of Art 21(1) TFEU can be justified by referring to ‘objective considerations of public interest’ (Tas-Hagen).

For this to be justified:

  • Based on objective considerations of public interest
  • Independent of the nationality of the person concerned
  • Appropriate – capable of achieving the desired objective
  • Proportionate – absolutely necessary

D’Hoop and Tas-Hagen passed first two elements but failed last two.

Forster satisfied all four elements of the test, the ECJ held that the residency period although indirectly discrimination, was legitimate and satisfied the appropriateness and proportionality tests in the five years’ continuous residence could not be held to be excessive.

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Directive 2004/38

Confers rights for a citizen to leave their home state and enter a host state, to bring their family, set up home and retire after working life is over. 

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Article 4 of Directive 2004/38: Rights of exit

4(1) Citizens only need a valid identify card or passport to leave

4(1) Family members with valid passports may also leave

4(2) No exit visa is required for those who 4(1) applies

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Article 5 of Directive 2004/38: Rights of entry

5(1) May enter with a valid ID card or passport

5(1) Non-EU family members must be granted entry with a valid passport

5(2) No entry visa required unless a non-EU national

5(4) Non-EU family members should be given reasonable opportunity to source necessary travel documents

5(5) Must report their presence within the host MS.

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Article 6 of Directive 2004/38 : Rights of residen

6(1) right of residence within the host state for a period of up to 3 months without any formalities other than to hold a valid ID card or passport

6(2) confers the rights of 6(1) on non-EU family members with a valid passport

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Article 7 of Directive 2004/38: Rights of residenc

7(1) EU citizens have the right of residence if they:

  • (a) Are workers or self-employed
  • (b) Have sufficient resources for themselves and their families not to become a burden on the social assistance system
  • (c) Are students, have ‘comprehensive sickness insurance over’ and ‘assure the relevant national authority’ that they have ‘sufficient resources’

7(1)(d) rights are conferred on family members accompanying or joining union citizen

7(2) extends rights to include non-EU family members

7(3) rights conferred by Art 7(1)(a) is not lost by a worker if they are:

  • Temporarily out of work due to illness or an accident
  • Are in daily recorded involuntary unemployment
  • Embarks on vocational training

If permanently incapable from working on health grounds does not fall within Art 7(2) (De Brito).

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Articles 8 - 11 of Directive 2004/38: Registration

8(1) periods longer than 3m require citizens to register with relevant authorities and receive registration certificate 8(3).

9(1) non-EU family members can be issued with a registration card

11(1) Registration cards are valid for 5yrs from date of issue

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Rights of citizen's families - Scope (Article 2(2)

Art 2(2) “Family member means”

(a)  Spouse – martial relationships only (Netherlands v Reed); separated but not divorced still spouses (Diatta v Land Berlin); Cohabiting partners are not spouses (Hadj Ahmed).

(b)  Partner with whom the Union citizen has contracted a registered partnership;

(c)  The direct descendants under the age of 21 who are dependent of either (a) or (b); applies to children, stepchildren and grandchildren (Baumbast).

(d)  A dependent direct relative in the ascending line and those of the spouse or partner as defined in point (b).

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Divorce/ Annulment/ Termination/ Marriage of conve

A divorce terminates the ex-spouse’s entitlement to the residence. 13(1) ex-spouse is an EU citizen they can remain in host state from own entitlements, 13(2) refers to non-EU ex-spouses.

The marriage of convenience will be regarded as an abuse of the situation (Akrich).

 

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Primary Carer

Continued right of residence on a mother who would face deportation from the UK, but for having children still being educated in British schools:

  • Baumbast: Colombian, German husband left the UK to work, no longer a spouse of an EU citizen in the UK
  • R: American divorced French husband and no longer a spouse of EU.
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Limitations of the free movement of people

Art 27(1) of Directive 2004/38 free movement may be restricted on grounds of public policy, security or health grounds (Commission v Spain). Art 27(2) of Directive 2004/38 measures taken on these grounds must comply with the principle of proportionality and will be based on the conduct of the parties.

  • Public policy: Prostitution could amount to a threat to public policy (Jany and others) or drug use (Calfa).
  • Public security: reserved for serious crimes, terrorism and espionage (Oteiza Olazabal). Drug trafficking (Tsakouridis) and child sex offences (P.I.).
  • Public health: 29(1) of Directive 2004/38 diseases that have epidemic potential as defined by WHO. 29(2) of Directive 2004/38 diseases that occur after 3m residences will not constitute grounds for expulsion.
  • Proportionality: Art 27(2) of Directive 2004/38 provides that ‘measures taken on grounds of public policy or security shall comply with the principle of proportionality’ – the action of taken must be limited to what is necessary to achieve the objective. 
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Limitations of the free movement of people cont...

  • Personal conduct: In Calfa deportation on the basis of possession of prohibited drugs was not permissible without taking into account the individuals personal conduct.
  • Oliveri developed personal conduct criteria:
    • Nature and seriousness of the offences committed;
    • Length and residence in the host MS;
    • The period which has elapsed since the first offence;
    • Family circumstances of person involved;
    • Seriousness of the difficulties, which the spouse and any of their children risk facing in the country of origin of the person concerned.

Membership of an organisation may constitute ‘personal conduct’ (Van Duyn). MS can expel EU nationals who are members of terrorist organisations (R v Secretary of State for the Home Dept, ex p Gallagher – known member of IRA). 

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Article 27 and 28

Economic ends Art 27(1) of Directive 2004/38: Cannot stop entry on grounds of high unemployment in host member state (Aladzhov),

Excluded situations – previous criminal convictions (art 27(2) of Directive 2004/38: Previous criminal convictions shall not in themselves be grounds for deportation. A single conviction could be enough to justify deportation(R v Bouchereau).

Extra protection for those with ten years’ residence and minors (Art 28(3) of Directive 2004/38): An expulsive decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by MS, if they:

  • Have resided in host MS for the previous 10yrs; or
  • A minor, except if the expulsion is necessary for the best interests of the child (Tsakouridis).
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Free movement of workers - Article 45 TFEU

Objectives of Art 45 TFEU: allow workers to move for employment 

  • Benefit to workers (more areas of higher employment or wages) and to employers (greater potential workforce, better skills/experience)
  • Can help resolve issues of skill shortages

Scope of Art 45

  • 45(1) TFEU means workers are (subject to narrow derogations) free to move from one MS to another. Graf ‘provisions… even if applicable… deter a national leaving his MS… could constitute an obstacle’.
  • 45(2) TFEU having moved entitled not to be discriminated against in terms of nationality (Angonese). 
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Definition of a worker

Lawrie-Blum ‘a person who is obligated to provide services… in return for monetary rewards and who is subject to the direction or control of another person in regards to how the work should be done’.

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Types of workers

Part-time and low paid employees: Levin found that part-time and low paid are workers if the work is effective and genuine. However social employment (drug rehabilitation) did not work (Bettray).

Trainees: Students undertaking vocational training are workers (Lawrie-Blum).

Work-seekers: Cannot be deported so long as they can provide evidence that they are (a) continuing to seek employment and (b) had genuine chances of becoming employed.

Work-seekers and social benefit: Collins a work seeker could claim certain social benefits (JSA). Not guaranteed to get them.

Previously employed: Lost their job but capable of another are workers (Leclere and Deaconescu).

 Frontier workers: Art 45 when a person moves from home state to another for work (Geven). 

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Eligibility for employment Under Regulation 492/20

  • Regulation 492/2011, 3(1) MS shall not limit applications for and offers of employment, or the right of foreign nationals to take up and peruse employment or subject these to conditions not applicable in respect of their own nationals;
  • Regulation 492/2011, 3(1) through the application, irrespective of nationality, their exclusive or principal aim or effect is to keep nationals of other MS away from the employment offered.
  • Provisions shall not apply to the linguistic knowledge required to the position Groener: Dutch national applied for Irish teaching job. Couldn’t speak Irish even though taught in English, failed to get a job. Held, justified not to give her job as it was an important part of countries identity.
  • Regulation 492/2011, 4(1) provisions laid down by law, regulation or administrative action, which restricts no. or % of foreign nationals employed in any activity shall not apply (Commission v France ratio of 3:1 of French men on ships).
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Prohibition of discrimination of employment

Regulation 492/2011, 7(1) a worker of an MS may not be treated differently from a national of host state in respect of conditions of employment, remuneration, dismissal, reinstatement or re-employment.

Both direct and indirect discrimination are prohibited. But could be exempt if:

  • Art 45(3) TFEU derogations justified on grounds of public policy, health or security)
  • Art 45(4) TFEU employment in public service
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Indirect discrimination

Direct discrimination cannot be justified. Indirect could if it was necessary to satisfy some overriding interest. 

National rules, which are not directly discriminatory, may breach Art 45(2) if its effect discriminates in favour of MS’s nationals or against nationals from another MS. O’Flynn money from UK for funeral cover.

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Article 7(2)

Social and Tax advantages: Workers shall enjoy the same social and tax advantages as nationals (Fiorini).

Funding & maintenance for education: Any migrant worker could claim for funding and maintenance to pursue full time education (Liar).

Involuntary unemployment: Ninni-Orasche applied for a maintenance grant but there was a lack of continuity between her job as a waitress and her language degree. But she was involuntarily unemployed and could claim.

Family members’ entitlement to Art 7(2) Regulation 492/2011 protection: Social and tax advantages afforded to workers are also afforded to families. Castelli migrant workers could make claims for the family; nationality of the family is irrelevant (Deak).

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Article 10

Age limits: No age limit; Gaal 22 yr old still a child.

Death, retirement, etc of the worker: Regulation 492/2011, Art 10 only applies if ONE of the child’s parents HAS/HAVE worked in MS providing the education (Brown). Doesn’t matter if they then die, retire or move (Gaal). Similarly, if parents are divorced and child lives with non-working parent (R).

Right to education abroad: Regulation 492/2011, Art 10 is available for funding, when a course is abroad, provided it is available to nationals (Di Leo).

Vocational Training: Gravier v Liege ‘any form of education which prepares for a qualification of a particular profession, trade or employment or which provides necessary skills for such’.

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Purely internal rule

If all the facts occur within a single MS then EU has no role.

Workers and the ‘purely internal’ rule: R v Saunders was NI, told not to return to E or W for 3 yrs, within 6m was arrested in W. Charged with breaching her binding, Held no cross-border movement, Art 45 did not apply.

Worker’ family and the purely internal rule: Family member has not sought to exercise their free movement rights, EU law has no role to play.

Exceptions to the purely internal rule

  • Doesn’t apply to returnees to home state (Knoors)
  •  Deportation of parents would infringe the right of children by virtue of their status as EU citizens.
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Public service exemption and Article 45(4) TFEU

Only exclude foreign nationals from accessing employment, not conditions of employed after it has been granted (Sotgiu).

Art 45(4) does not apply in public service. Commission v Belgium ‘classification depends on whether or not the posts in question are typical of the specific activities of the public service in exercising powers conferred by public laws and for safeguarding the general interests of the state. Not public service:

  • Lawrie-Blum – teachers
  • Commission v France – nurses

MS may use these to justify restrictions on free movement of workers provided:

  • It is non-discriminatory;
  • It is justified by imperative requirement in the general interest;
  • It is suitable for the attainment of the objective pursues;
  • Does not go beyond what is necessary to attain its objectives. 
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Professional sport

Art 45 TFEU applies to team sports and only to profession and semi-professionals. In Bosman transfer fee imposed an obstacle to the free movement of workers prohibited by Art 45(1) TFEU. Lehtonen transfer deadlines imposed a justifiable restriction.

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