Two recent judgments of the Grand Chamber of the EU Court of Justice have clarified the extent to which non-EU nationals who are family members of EU citizens can establish a right of residence in their EU family member’s home Member State.
Case C-456/12 concerned a refusal by the Netherlands to grant a right of residence to the non-EU national family members of Dutch citizens who had spent short periods with their family members in other Member States at weekends and during holidays. The Court held that Directive 2004/38/EC does not confer on third-country nationals a derived right of residence in the home Member State of their EU citizen family member. However, it also held that a refusal to allow such a derived right of residence may interfere with the EU citizen’s freedom of movement under Article 21 TFEU if the period of residence in another Member State has been “genuine”, i.e. for a period of more than three months in accordance with Article 7 of the Directive (and subject to family life having been created or strengthened during that period). Short periods of residence, such as at weekends or on holidays, do not satisfy that condition.
Case C-457/12 concerned a similar refusal by the Netherlands in relation to non-EU family members of Dutch citizens where the family had never resided in another Member State, but where the EU national travelled from the Netherlands to other Member States for work. Again the Court confirmed that family members of such citizens have no derived right of residence in the home Member State under the Directive, but that such a right of residence should be granted where it is necessary to guarantee the EU citizen’s effective exercise of free movement rights under Article 45 TFEU. The fact that the third-country national takes care of the EU citizens’ children may be a relevant factor in that analysis.
The judgments assist in clarifying the scope of the Surinder Singh case law (Case C‑370/90), concerning the rights of family members of EU citizens who return to their home Member State having spent time in another Member State.
Gerry Facenna acted for the United Kingdom Government in both cases.