The 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 codifies the existing legislation and case-law in the area of free movement. Member States had to bring into force the laws and administrative provisions necessary to comply with the Directive by April 2006. The Immigration (Europe Economic Area) Regulations 2006 implemented in the UK law the Directive. The Directive only applies to EU citizens who move to a Member State other than the Member States of their nationality and to their family members. Generally, EU citizens residing in the Member State of their nationality do not benefit from the rights granted by Community law on free movement of persons and their third country family members are therefore covered by national immigration rules. Nevertheless, those EU citizens who go back to their home Member State after having resided or having exercised their rights to free movement in another Member State may benefit from the rules on free movement of persons.
The MigrationWatch UK has recently published a paper drawing attention to an EU loophole which has allowed “100,000 dependants of EU nationals resident in Britain entered the UK in the last five years with no conditions attached but with full and immediate access to benefits.”
The paper points out “British nationals living in the UK are now required to earn a minimum salary of £18,600 to sponsor a spouse from outside the European Union (technically the EEA)” but “EU nationals living in the UK can bypass the UK immigration rules and bring in a non-EU partner and even their partner’s extended family members under the Immigration (European Economic Area) Regulations 2006.” Consequently, as MigrationWatch noted, “Recent reforms to family migration for British citizens are undermined by EU law that allows EU citizens living in the UK to bypass British Immigration Rules and bring in their non-EU partners and family members with no salary or other conditions.”
Sir Andrew Green, Chairman of Migration Watch UK, stressed “This is a loophole that must be closed and soon. It is absurd that EU citizens should be in a more favourable position than our own citizens.”
It is important to recall that in 2008 the ECJ gave its judgment in the Metock case concerning the interpretation of Directive 2004/38/EC. The Irish law implementing the Directive required lawfully residence in another Member State to a national of a third-country who is a family member of an EU citizen to reside with or join that citizen in Ireland. The ECJ ruled that Ireland immigration laws were incompatible with the free movement Directive. According to the ECJ there is no provision of Directive 2004/38, which makes the application of the directive conditional on family members of an EU citizen previous residence in a Member State.
Ireland as well as other Member States who submitted observations to the Court argued that Member States have exclusive competence “to regulate the first access to Community territory of family members of a Union citizen who are nationals of non-member countries.” However, the ECJ rejected this argument. The ECJ held that family members, third countries nationals, of a Union citizen who has exercised his right of freedom of movement by establishing himself in a Member State other than his own have rights of entry into and residence in a Member State under Directive 2004/38.
It is clear from the ECJ case law that Member State’s powers in this area are very limited. In fact, Member State ability to control immigration at their external frontiers has been seriously undermined.
Denmark and Ireland following the ECJ´s ruling called for a modification of the directive in order to deal with marriages of convenience. However, the European Commission has not revised the Directive but it adopted a Communication “on guidance for better transposition and application of 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.” The Communication main aim was to provide guidance to Member States on how to interpret and apply the Directive, but it was described by Danish politicians as "absurd" and “unacceptable.”
The Commission has stressed that although the Member States have some discretion defining criteria to decide whether to grant the rights provided in the Directive to "other dependent family members" their liberty is conditional as the national legislation must take into account the personal circumstances of the applicants concerned, their relationship with the EU citizen as well as their financial or physical dependence.
According to the Commission’s guidelines Member States may take measures to combat marriages of convenience but they may not deter EU citizens and their family member’s right to free movement in the EU. The Commission has stressed that “In accordance with the principle of supremacy of Community law, the assessment of whether Community law was abused must be carried out in the framework of Community law, and not with regard to national migration laws.” The Commission stated that Member States are not prevented from “investigating individual cases where there is a well-founded suspicion of abuse.” However, systematic checks are prohibited under Community law.
Article 7 of Directive 2004/38 provides that all EU citizens have the right to move and reside in another Member State as workers, self-employed or students or if they “have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State” as well as “comprehensive sickness insurance cover in the host Member State.” There is therefore a right of residence for members of the family of EU citizens who satisfy the abovementioned conditions. As MigrationWatch pointed out, “The holder of an EEA family permit has the same right to work and to access benefits as the EU national who has sponsored them.” Hence, “they can claim all the benefits available to a British citizen resident in the UK.”
It is important to mention the ECJ’s judgement in Case C 310/08, London Borough of Harrow v Nimco Hassan Ibrahim, Secretary of State for the Home Department. The case concerned a Somali national, Ms Ibrahim, married to a Danish citizen, Mr Yusuf, and with four children. Under the Immigration (European Economic Area) Regulations 2006 a ‘qualified person’ is a national of a State of the EEA who is in the UK as a job seeker, worker, self-employed person, self-sufficient person or student, and they are entitled to reside in the UK for so long as they remain a “qualified person.” Hence, Mr Yusuf has ceased to be a ‘qualified person’ when he stopped working and left the UK. Ms Ibrahim separated from her husband after he left the UK in 2004. As the Court noted, Ms Ibrahim has never worked in the UK and completely depends on social assistance. In 2007, the housing assessment officer of the London Borough of Harrow rejected her application for housing assistance on the grounds that under the Housing Act 1996 and the Allocation of Housing and Homelessness (Eligibility) Regulations 2006 neither Ms Ibrahim nor her husband are entitled for housing assistance as they have no right of residence in the UK conferred by EU law. However, the ECJ ruled that “the children of a national of a Member State who works or has worked in the host Member State and the parent who is their primary carer can claim a right of residence in the latter State on the sole basis of Article 12 of Regulation No 1612/68, without being required to satisfy the conditions laid down in Directive 2004/38” and “without such a right being conditional on their having sufficient resources and comprehensive sickness insurance cover in that State.” Hence, Ms Ibrahim who has never worked in the UK has been able to claim house as well as other benefits.
