FREE MOVEMENT OF EU CITIZENS WITHIN THE EU
FREE MOVEMENT OF EU CITIZENS WITHIN THE EUIntroductionThe right of EU nationals to move freely between the Member States is absolutely central to the EU project. With the foundation of the European Union and the increasing reach of its influence over domestic legal systems, the concept of European citizenship, the modern manifestation of free movement of persons, is of prime importance. The implementation of this right within the UK necessitated huge changes not only to the law governing immigration (so as to permit the entry and residence of those endowed with EU law rights of free movement), but also to a diverse range of other rules and regulations – such as those governing social security benefits and student grant allocation – so as to guarantee that EU nationals are treated equally once they have entered the UK. The status of EU citizen looks certain to provide the impetus for the removal of many of the remaining vestiges of discrimination against nationals of other Member States. But this deregulation to facilitate the readier cross-border movement of EU nationals within the borders of the EU may be considered as only the 'first circle' of the EU law concerning the free movement of people.The regulation of non-EU nationals who migrate to the EU and take up economic roles may be consider to form the 'second circle' of EU Treaty free movement law or EU migration law. Classically the position of 'economic migrant' to the EU was occupied by the so-called Gastarbeiter, primarily of Turkish origin, who moved in significant numbers to Germany from the 1960s on. Other EU Member States have attracted foreign workers from other non-EU countries. In the case of France and the UK, particular links exist with those now independent countries which formerly were taken up in the colonial ventures or imperial projects of these nations: thus France has a large community of residents emanating from the Maghreb and sub-Saharan Francophone Africa; while the UK has significant connections with communities of people having their immediate origins in the countries of south-east Asia, east and west Africa, and Australasia. Following the collapse of the Soviet bloc and prior to their admission as full Member States of the EU, economic migration from the States of central Europe (Mitteleuropa) was of concern to the EU legislature and to some of the existing Member States, anxious about an influx of Polish plumbers, or Romanian builders or Hungarian musicians threatening to take, say, 'German jobs from German workers', or 'French contracts from French contractors'. The primary instrument of this branch of EU migration law was via the conclusion of Association Agreements between the EU and the States of origin of these 'guest workers'. But further legal issues arise when the originally foreign 'guest workers' and their families stay on in the EU and become, effectively, permanent settlers.Of increasing importance in recent years has been the large number of people crossing the external borders of EU to seek protection from persecution or endemic violence, whether State-sponsored or resulting from State failure. The 'third circle' of EU law concerned with the movement of peoples is, therefore, EU asylum law. But because EU asylum law is concerned with admission to a transnational area which aspires to the abolition of any official marking or policing of its internal national boundaries, it can properly be understood only against a background of understanding the development of the principles of free movement for EU citizens, and of rights of residence of those formerly known in EU-speak as 'extra-Communitarians' (though perhaps now more properly referred to as 'extra-Unionists').The Concept of the EU Citizen in the EU TreatiesArticle 9 of the Treaty on European Union (TEU) provides that:“Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship”.No discrimination on grounds of (other) EU nationalityArticle 18 of the TFEU sets out the general prohibition of discrimination on grounds of nationality 'within the scope of application of the Treaties' and provides a legal basis for the EU legislature to make 'rules designed to prohibit such discrimination'. EU citizenship rightsArticle 20(1) TFEU re-confirms the concept of EU citizenship which is automatically afforded to and supplements the national citizenship of 'every person holding the nationality of a Member State'. While the conferring on individuals of rights associated with national citizenship remains wholly within the exercise of the sovereign power of the Member States, the withdrawal of national citizenship rights or status once conferred may bring matters within the ambit of EU law (and the supervision of the CJEU). Thus in Rottmann v Bavaria the Grand Chamber of the CJEU found that as a result of the establishment of the concept of EU citizenship a Member State’s power – in relation to its own nationals - to lay down the conditions for the possible loss or deprivation of that of nationality now required to be exercised with due regard to the principles of EU law. The fact that such issues fell centrally within the legal competence of the Member States did not preclude the concurrent application of EU law in this area. Because the exercise of that Member State power against its own national also directly affected the rights conferred on that Member State’s national qua EU citizen, the matter was held to fall within the ambit of EU law. Among the rights conferred by EU citizenship are:a)the right to move and reside freely within the territory of the Member States (Article 20(2)(a) TFEU). In Zambrano v Office national de l’emploi (ONEm) the Grand Chamber of the CJEU held that Article 20 TFEU was to be interpreted as meaning that it precluded a Member State (Belgium) from refusing a third country national (upon whom his minor children, who were Belgian and hence European Union citizens, were dependent) a right of residence in Belgium as the Member State of residence and nationality of those children, and from refusing to grant a Belgian work permit to that third country national, in so far as such decisions deprived those children of the genuine enjoyment of the substance of the rights attaching to their status of European Union citizens. Thus the Grand Chamber interpreted the EU citizenship right set out in Article 20(2)(a) TFEU ‘to move and reside freely within the territory of the Member States’ as conferring — as a matter of EU law — on each and every EU citizen a primary right of residence within the Member State of which the EU citizen was also a national, and from which the EU citizen’s relatives could also derive secondary rights of residence within that State without need for any prior exercise of EU free movement rights to other Member States. Article 21(2) TFEU gives the legal basis for the EU legislator 'to adopt provisions with a view to facilitating the exercise' of the right ‘to move and reside freely within the territory of the Member States’. b)the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State (Article 20(2)(b) TFEU). In Eman and Sevinger v Netherlands the Grand Chamber of the CJEU held that as a matter of EU law: (i) EU citizens had a right to vote in elections to the European Parliament regardless of whether they were residing in another Member State of which they are not nationals (ii) and that this right could be prayed in aid and directly relied upon by EU citizens against the Member State of which they were nationals to prevent unequal treatment by that Member States among its own nationals on the issue of this right to vote. Separately, Article 22 TFEU provides the legal basis for a unanimous Council, after consulting with the European Parliament, to make detailed arrangements regarding the exercise of the right of every EU citizen resident in a Member State of which he is not a national – under the same conditions as that State’s own nationals – to vote and to stand as a candidate at that Member State’s municipal elections; and in elections to the European Parliament in that Member State. c)the right to enjoy diplomatic and consular protection from the authorities of any other Member State on the same conditions as the nationals of that State, in third countries where their own Member State is not represented (Article 20(2)(c) TFEU). Article 23 TFEU requires Member States to adopt the provisions – if necessary, in accordance with any relevant EU directives establishing coordination and cooperation measures – and to start the international negotiations required to secure the entitlement of every EU citizen when in the territory of a third country in which the Member State of which he is a national is not represented, to protection by the diplomatic or consular authorities of any other Member State on the same conditions as the nationals of that State.; d)the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the EU in any of the (currently 23) Treaty languages, and to obtain a reply in the same language (Article 20(2)(d) TFEU). These rights are repeated in the same terms in Article 24 TFEU, which also provides a Treaty basis for the making of EU regulations setting out the procedures and conditions required for a citizens’ initiative within the meaning of Article 11 TEU.The EU Charter of Fundamental Rights on Free Movement and the EU CitizenArticle 15(2) of the EU Charter of Fundamental Rights (CFR) provides that every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State. This Charter provision simply summarises the three fundamental freedoms – freedom of movement for workers, freedom of establishment and freedom to provide services – which are set out and guaranteed by Articles 26, 45, 49 and 56 TFEU. Article 21(2) CFR states that within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited. This Charter provision simply corresponds with and reflects the terms of Article 18(1) TFEU noted above. The Treaty prohibition against nationality discrimination has direct horizontal effect, and can therefore be prayed in aid by any individual before a national court of a Member State. Further, the prohibition on nationality discrimination has been held to cover not only direct but also covert or indirect discrimination, so that imposing criteria such as the place of origin or residence of a worker could be tantamount, in their practical effect, to discrimination on grounds of nationality.Article 39 CFR restates the already noted EU citizen’s right to vote and to stand as a candidate at elections to the European Parliament – conducted under conditions of a free and secret ballot under direct universal suffrage; which body, under Article 44 CFR, any EU citizen (as well as 'any natural or legal person residing or having its registered office in a Member State') may then petition. Article 40 CFR repeats the EU citizen’s right to vote in and stand for Member State municipal elections; Article 43 CFR reiterates the EU citizen’s right to apply to the European Ombudsman; and Article 46 CFR again mentions the EU citizen’s right to diplomatic and consular protection from other EU Member States.Article 45 CFR reflects the right already guaranteed by Article 20(2)(a) TFEU, stating that 'every citizen of the Union has the right to move and reside freely within the territory of the Member States'. In Baumbast, the Court of Justice expressly disengaged the free movement rights – which had originally been granted under the Treaty of Rome essentially to migrant workers – from any need to be economically active, finding instead that the status of being an EU citizen was sufficient to confer a right to residence in another Member State by virtue of the direct application of Article 21(1) TFEU (formerly Article 18(1) EC).In Konstantinidis v Stadt Altensteig, Advocate General Jacobs suggested in his Opinion that wherever an EU national goes to earn his living anywhere in the EU, he should beentitled to assume that, wherever he goes ... in the European Union he will be treated in accordance with a common code of fundamental values, in particular those laid down in the European Convention on Human Rights. In other words, he is entitled to say ‘civis europeus sum’ and to invoke that status in order to oppose any violation of his fundamental rights.The grandiloquence of this statement and the sentiments underlying it are rather belied by the subject matter of the case, which involved a dispute about the correct spelling or transliteration into the Latin alphabet by the German authorities of the claimant’s Greek name.Free movement and the EU citizenA now standard cut-and-pasted passage from the case law of the CJEU is that:The status of citizen of the Union is destined to be the fundamental status of nationals of the member states, enabling those among such nationals who find themselves in the same situation to enjoy the same treatment in law within the area of application ratione materiae of the EC Treaty irrespective of their nationality, subject to such exceptions as are expressly provided for in that regard…Each Member State remains entitled to determine the scope of its own nationality laws: under UK law, British citizens, British subjects with a right of abode in the UK and Gibraltarians qualify as British nationals for EU law purposes, and in this last case accordingly have a right to vote as part of the UK constituency in elections for the European Parliament. As might be assumed from this, the territorial scope of the rules on free movement of EU citizens extends to Gibraltar. The rules do not, however, apply to the Channel Islands or to the Isle of Man.But nationals of the Member States, whatever their economic status, are also EU citizens; and the TFEU recognises that the EU citizen has the right to leave his own country and move to another Member State. This need not necessarily be for the purely economic reasons or motives covered by the original free movement provisions of the Treaty of Rome. That said, however, the underlying economic rationale of the original provisions of the Treaty of Rome means that distinctions continue to be made in the case law and EU secondary legislation between: a)those who move abroad to work, whether in an employed or a self-employed capacity;b)those who seek to study or take up vocational training abroad; c)those who choose to retire abroad; and d)those who move abroad simply because they can afford to and do not need or want to work. All of these categories are now dealt with in the consolidating provisions of the Citizenship (Free Movement) Directive 2004/38/EC, which sets out the various free movement rights and entitlement of EU citizens – whether they are workers, self-employed, students or trainees, retired or independently wealthy – and their family dependents. And with a view to facilitating the freedom of movement of EU nationals, EU law grants dependent rights to the family members (regardless of their nationality) of EU nationals. Thus large numbers of non-EU nationals may claim the protection of EU Treaty free movement law on this dependent basis.Initial right of three-month residencyArticle 6 of the Citizenship (Free Movement) Directive provides that EU citizens have the right of residence in the host Member State for a period of up to three months without being subject to any conditions or any formalities, other than the requirement to hold a valid identity card or passport. This provision is without prejudice to any more favourable treatment which can be claimed by those EU citizens seeking to find work in that Member State: under the case law of the Court of Justice, such EU jobseekers may enter and stay for a sufficient period to apprise themselves of appropriate job opportunities. As the Court has observed:36.Nationals of a Member State seeking employment in another Member State fall within the scope of Article 39 EC [now Article 45 TFEU] and therefore enjoy the right to equal treatment laid down in paragraph 2 of that provision (Case C258/04 Ioannidis [2005] ECR I8275, paragraph 21).37.Furthermore, in view of the establishment of citizenship of the Union and the interpretation of the right to equal treatment enjoyed by citizens of the Union, it is no longer possible to exclude from the scope of Article 39(2) EC a benefit of a financial nature intended to facilitate access to employment in the labour market of a Member State (Case C138/02 Collins [2004] ECR I2703, paragraph 63, and Ioannidis, paragraph 22).38.It is, however, legitimate for a Member State to grant such an allowance only after it has been possible to establish a real link between the job-seeker and the labour market of that State (Case C224/98 D’Hoop [2002] ECR I6191, paragraph 38, and Ioannidis, paragraph 30).Under Article 14(1) of the Directive this initial three-month right of residence is dependent on the EU citizen and family members not becoming an unreasonable burden on the social assistance system of the host Member State. Member States are permitted under Article 24(1) of the Citizenship (Free Movement) Directive 2004/38/EC to decide whether to give access to any social assistance during these first three months of residence (or for such longer period of entitled initial residence in the case of EU jobseekers) to EU citizens.Otherwise the principle of equal treatment (given particular expression in Article 24 of the Citizenship (Free Movement) Directive) requires that EU residents and their families should be entitled to be treated in the same way as nationals of the host State; although as we have seen in para 15.45 above, Article 24(2) allows that Member States need not, prior to an EU citizen’s acquisition of the right of permanent residence in the host country, grant maintenance aid for studies, including vocational training, consisting in student grants or student loans to 'non-workers', that is to say persons other than workers, self-employed persons, persons who retain such status and members of their families.Expulsion for social welfare dependency of non-workersWhere such 'non-workers' (for example, the independently wealthy or students – and their families) have exercised their EU citizenship free movement rights but have then become dependent on the social assistance system of the host Member State, Article 14(3) of the Citizenship (Free Movement) Directive allows that expulsion is a possible – though never automatic – option. Expulsion might be justified on this ground only if, and in so far as, the non-workers' social security dependence may be said to constitute, or have become, an unreasonable burden on the system. But whether or not there is such unreasonable social security dependence requires examination on a case-by-case basis, taking into account such factors as whether the need for such social assistance arises as a result of temporary difficulties, the duration of residence, the personal circumstances of the non-worker and the amount of aid granted.In Patmalniece v Secretary of State for Work and Pensions the UK Supreme Court upheld the lawfulness of making entitlement to “state pension credit” (a means tested non-contributory benefit) dependent on a right to reside in the UK. Somewhat surprisingly, the UKSC accepted (Lord Walker dissenting) that this justification was independent of the nationality of the persons concerned and thus not a form of direct discrimination necessarily incompatible with Union law. Although a form of indirect nationality discrimination, the right to reside in the UK test was said by the court to have the legitimate purpose of ensuring that only those who were economically or socially integrated within the UK (and/or Ireland) should have access to the UK’s social assistance system. The imposition of this test was said to be achieve the legitimate end of safeguarding the UK's social security system from exploitation by those who had not contributed to its funds. The European Commission disagrees, and on 29 September 2011 issued a “reasoned opinion” giving the UK two months to abolish the “right to reside in the UK” test, keeping only the EU law “habitual residence in the UK” test. The Commission noted:“The concept of habitual residence has been defined at EU level as the place where the habitual centre of interests of the person is located. The Commission considers that the criteria for assessing habitual residence are strict and thus ensure that only those persons who have actually moved their centre of interest to a Member State are considered habitually resident there. This is a powerful tool for the Member States to make sure that these social security benefits are only granted to those genuinely residing habitually within their territory.”Dependent family rightsAs noted above, the family members of those directly entitled to EU free movement rights are accorded subsidiary or dependent rights. Family members for the purposes of EU free movement rights are defined in Article 2(2) of the Citizenship (Free Movement) Directive 2004/38/EC as including the spouse and the partner with whom the EU citizen has duly contracted a registered partnership on the basis of the legislation of a Member State, if the relevant legislation of the host Member State treats registered partnerships as equivalent to marriage. Under Article 35 of Directive 2004/38/EC Member States may take measures to protect against abuse of rights by the contracting of sham marriage or civil partnerships.Article 2(2)(c) of Directive 2004/38/EC also includes among the relevant family members 'the direct descendants who are under the age of 21 or are dependents and those of the spouse or partner as defined in point'. And Article 2(2)(d) of the same Directive allows for 'the dependent direct relatives in the ascending line, and those of the spouse or partner as defined in point (b)' also to come within the definition of 'family'. The status of dependency is to be determined objectively, by reason of the fact that the worker actually provides support; there is no need to investigate whether the recipient really needs it.Those persons who do not fall fully within the Directive’s definition of family member (for example, an unmarried or unregistered partner) do not enjoy an automatic EU law right of entry and residence in the host Member State. Strictly, the decision on whether or not to grant entry and residence to quasi-family members is one for the host Member State deciding on the basis of its own national legislation and policy. Article 3(2) of the Directive nevertheless enjoins the Member States to 'facilitate entry and residence' to a partner with whom the EU citizen has a duly attested durable relationship, as well as to other family members of the EU citizen who are either his dependents or members of his household, or who on serious health grounds require personal care from the family. Any denial of entry or residence has to be expressly justified in all the circumstances of the case.Article 12(3) of Directive 2004/38 provides that the departure or death of the citizen of the Union does not entail the loss of the right of residence of the children or the parent who has actual custody of them, irrespective of their nationality, if the children reside in the host Member State and are enrolled at an educational establishment for the purpose of studying there, until the completion of their studies. And Article 13 of the Directive gives protection to family members in the event of the death of the EU citizen – or divorce, annulment of marriage or termination of a registered partnership – to ensure that they can retain their rights of residence within the territory of the host Member State. Right to reside for longer than three monthsArticle 7(1) of Directive 2004/38 provides that EU citizens and their family members who either have sufficient resources (including comprehensive health insurance cover) for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence or study, or who are workers or self-employed persons in the host Member State, shall have the right of residence for a period of longer than three months. Article 7(3) of Directive 2004/38 provides that the EU free movement status of a 'worker' or 'self-employed person' is retained even when the individual: a)is temporarily unable to work as the result of an illness or accident; or b)is duly recorded as involuntarily unemployed after having been employed for more than one year and has registered as a jobseeker with the relevant employment office, even where unable to work by reason of imprisonment. Where the former worker is duly recorded to be in involuntary unemployment after having completed a fixed-term employment contract of less than a year (or after having become involuntarily unemployed during the first 12 months) and has registered as a jobseeker with the relevant employment office, he may keep the EU law status of 'worker' for at least six months. And the EU law status of 'worker' will be retained if he is embarking on vocational training which, except in the case of involuntary unemployment, should be related to the previous employment.While the children of workers and self-employed people who are not dependent but are under 21 years old derive residence rights from this provision (as do the non-dependent grandchildren of workers), only the spouse/registered civil partner and dependent children of those studying or undertaking a course of vocational training have EU law rights of residence under the Directive (Article 7(4)).Registration of EU nationalsIn respect of those wishing to exercise their right of residence in a host State for more than three months, Member States are permitted by Article 8 to require EU citizens to register with the competent authorities in the place of residence, which registration may be attested by a registration certificate issued to that effect. But such registration is merely of evidential value, and the EU citizen’s right to reside in another Member State exists directly as a matter of fundamental EU law quite independently of any national administrative formalities.Those countries which issue and require the carrying of residence cards or permits may still require them of family members of EU citizens who are not nationals of a Member State, but only in respect of periods of residence of longer than three months (Article 9). Once any residence card has been obtained then its holder is exempted from any requirement to obtain an entry visa when crossing back into the EU from abroad. The supporting documents required by the competent authorities for the issuing of an EU citizen’s registration certificate or of an EU family residence card are comprehensively specified in Articles 8(5) and 10 of the Citizenship (Free Movement) Directive so as to avoid the possibility of divergent administrative practices or interpretations which might otherwise constitute an undue obstacle to the exercise of the right of residence by EU citizens and their family members.Right to claim permanent residenceThe Citizenship (Free Movement) Directive 2004/38/EC makes provision in Article 16(1) for EU citizens to claim a right of unconditional permanent residence in the host Member States for themselves and their families after a continuous period of five years without becoming subject to any expulsion measure. The change, made by Council Directive 2004/38/EC from 30 April 2006, removed the requirement of being economically active or self-sufficient, but only after five years’ lawful presence, abandoning the distinction previously central to EU free movement law between economic and non-economic migrants. Article 19 of that Directive does not require Union citizens who have acquired a right of permanent residence in another Member State by virtue of Article 16 thereof to hold a residence permit of indefinite duration. These measures are without prejudice to the right already afforded under other provisions of EU law to EU citizen 'workers' or 'self-employed persons' to claim permanent residence for themselves and their family members after having worked in that State. These provisions applying specifically to EU citizen 'workers' or 'self-employed persons' are now contained in Article 17 of Directive 2004/38/EC. They allow, subject to varying continuous residency requirements in the host State for periods of less than five years, for permanent residence to be claimed on behalf of themselves and their families by workers and the self-employed: a)who have reached retirement age (provided that they have been working in that Member State for at least the preceding twelve months and have resided there continuously for more than three years); b)who have resided continuously in the host Member State for more than two years and have stopped working there as a result of permanent incapacity or c) who have had to stop working as a result of an occupational related disease or workplace accident causing injury such as entitles the person concerned to a benefit payable in full or in part by an institution in the host Member Stated)who commute to work in a neighbouring Member States but return home to the host State at least every week.Restrictions on the expulsion of EU workers and their familiesAs part of its continuing campaign against the Human Rights Act the Daily Telegraph continually relies upon the case of Lorenzo Chindamo, an Italian national, as a prime example of how convicted foreign criminals are relying on the Convention rights protected under the Act to prevent their expulsion from the UK after serving their sentence. But as the UK Human Rights blog has pointed out (repeatedly) the decision that it would not be lawful to deport Philip Lawrence’s killer was not made on the basis of his Convention rights, but instead relied upon his EU citizenship rights.The only lawful basis on which a EU citizen worker, self-employed person or jobseeker (or his family members) may be denied leave to enter or reside in a Member State, or indeed be expelled from the host State in which he has exercised his EU free movement rights in taking up residence, is on the narrowly interpreted public policy or public security grounds set out in Articles 27 and 29 of the Citizenship (Free Movement) Directive. The remedy of expulsion may be taken only if it is shown to be proportionate, taking into account factors including: a)the degree of integration of the persons concerned in the host State; b)the length of their residence in the host Member State; c)their ages; d)their state of health, family and economic situation; and e)the links with their country of origin. The greater the degree of integration of EU citizens and their family members in the host Member State, the greater will be their protection against expulsion. Thus it would only be in exceptional circumstances – where, for example, there are imperative grounds of public security – that an expulsion measure might lawfully be taken against an EU citizen who has resided for many years in the territory of the host Member State: in view of the emphasis on personal conduct, a desire on the part of the authorities to deter other people from committing similar crimes is not an acceptable basis justifying expulsion. And considerations of such instruments as the UN Convention on the Rights of the Child 1989 would similarly suggest that it would only be in the most exceptional case that a EU citizen who is a minor and whose family resides in the host State might lawfully be expelled to his country of origin. Having said all that, in a fairly recent – thought little reported - decision Land Baden-Württemberg v Panagiotis Tsakouridis of 23 November last year, the Grand Chamber of the CJEU actually upheld the lawfulness/compatibility with the Directive of the expulsion from Germany of an individual of Greek parentage who had been born in Germany and who had lived there for over 30 years - most, if not all, of his life. But for purposes of German nationality law - which ascribes nationality on the basis of descent rather than on the basis of place of birth - his nationality was Greek and not German. He had been convicted in Germany for drugs related offences and the Grand Chamber of the CJEU held that “imperative grounds of public security” namely the “war against drugs” was sufficient to allow the German authorities to justify his expulsion from Germany as a matter of EU law. Article 31 of the Directive sets out strict procedural safeguards which have to be followed in taking any decision regarding the denial or restriction of residence, or expulsion. Any such action taken by the authorities must be properly justified before the national courts, before which the EU citizen has a right to seek vindication of his and his family’s free movement rights under EU law.In any event, there can be no expulsion for life. In the case of Donatella Calfa, the Court of Justice declared a provision of Greek law which required the imposition of an order of expulsion from Greek territory for life of nationals of other Member States convicted in Greece of drugs offences, to be incompatible with EU law as being a disproportionate interference with the fundamental EU principles in favour of the free movement of persons. Thus the Citizenship (Free Movement) Directive gives any EU citizens (and their family members) who have been excluded from the territory of a Member State the right to submit a fresh application after a reasonable period, and in any event after a three-year period from enforcement of the final exclusion order.Right of exitIt should also be noted that under the terms of the Citizenship (Free Movement) Directive 2004/38/EC an EU citizen has the right to leave the territory of a Member State to travel to another member State. Article 4 of the Directive provides as follows“Right of exitWithout prejudice to the provisions on travel documents applicable to national border controls, all Union citizens with a valid identity card or passport and their family members who are not nationals of a Member State and who hold a valid passport shall have the right to leave the territory of a Member State to travel to another Member State.”The CJEU has held that this is a directly effective EU law right which may be claimed by an EU citizen against the Member State of his or her own nationality. The proposed restrictions on the mode and manner in which EU citizens and their families to exercise their right of exit from the UK falls within the ambit of EU law the Secretary of State can only exercise its powers to impede this right to exit in a manner which confirms to the requirements and general principles of EU law, as the CJEU has noted in Gaydarov:“32. …[I]t is clear from settled caselaw that, while Member States essentially retain the freedom to determine the requirements of public policy and public security in accordance with their national needs, which can vary from one Member State to another and from one era to another, the fact still remains that, in the European Union context and particularly as justification for a derogation from the fundamental principle of free movement of persons, those requirements must be interpreted strictly, so that their scope cannot be determined unilaterally by each Member State without any control by the institutions of the European Union (see, inter alia, Case C33/07 Jipa [2008] ECR I5157 paragraph 23). 33??????The Court has thus stated that the concept of public policy presupposes, in any event, the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society (see, inter alia, Jipa, paragraph 23 and caselaw cited).34??????In that context, the derogations from the free movement of persons that are capable of being invoked by a Member State imply in particular, as stated in Article 27(2) of Directive 2004/38, that if measures taken on grounds of public policy or public security are to be justified they must be based exclusively on the personal conduct of the individual concerned and that justifications that are isolated from the particulars of the case in question or that rely on considerations of general prevention cannot be accepted (Jipa, paragraph 24)….” The CJEU has also been quite clear that restrictions preventing EU national from leaving a Member State cannot be based on purely financial reasons – for example, for non-payment of tax. Against that background the apparent readiness in the Family Courts to authorize the seizure of individuals passports, reviving in effect the ancient writ of ne exeat regno, often in disputes concerning child support and maintenance payments is perhaps of questionable legality, at least as regards EU citizens. Case Study – Using EU citizenship rights re prisoners votingThe applicant is a convicted prisoner. He holds the nationality of an EU member State. He is therefore an EU citizen and is over the age of eighteen. He is currently imprisoned in the United Kingdom. He would have a right to vote in elections in the UK but, by reason of the terms of section 3(1) of the Representation of the People Act 1983 (“RPA”) he is, on the face of it, excluded from the franchise for local government elections in the UK and from the franchise for elections in the UK to the European Parliament. The terms of Section 3(1) RPA are as follows:“A convicted person during the time that he is detained in a penal institution in pursuance of his sentence or unlawfully at large when he would otherwise be so detained is legally incapable of voting at any parliamentary or local government elections.”Convention incompatibility of prisoner disenfranchisementIn Smith v. Scott Section 3(1) RPA was found by the Registration Appeal Court to be incompatible with the requirements of Article 3 of the First Protocol to the European Convention on Human Rights (ECHR) as interpreted by the European Court of Human Rights, notably in the decision of the Grand Chamber in Hirst v UK (No 2) (2006) 42 EHRR 41. The Registration Appeal Court summarised the substance of the decision of the Grand Chamber in Hirst v. UK (No. 2) as follows:“15. … The right to vote was not a privilege. In the 21st century the presumption in a democratic state must be in favour of inclusion. Universal suffrage had become the basic principle. Nonetheless, the rights bestowed by Art 3 of the First Protocol were not absolute. There was room for implied limitations and Contracting states must be given a wide margin of appreciation in this sphere. It was, however, for the Court to determine in the last resort whether the requirements of Art 3 of the First Protocol had been complied with; it had to satisfy itself that any conditions did not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they were imposed in pursuit of a legitimate aim; and that the means employed were not disproportionate…. In particular, the exclusion of any groups or categories of the general population must be reconcilable with the underlying purposes of Art 3 of the First Protocol. …17. … Section 3 of the 1983 Act remained a blunt instrument. The provision imposed an automatic and indiscriminate blanket restriction on all convicted prisoners in prison, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Art 3 of the First Protocol.” EU law incompatibility of Section 3(1) RPAAs we have seen Article 20(1) of the Treaty on the Functioning of the European Union (“TFEU”) confirms the establishment of the concept of EU citizenship which supplements their national citizenship rights. And we have noted the decision of the Grand Chamber of the CJEU observed in Zambrano v. Office national de l’emploi (ONEm): “[C]itizenship of the Union is intended to be the fundamental status of nationals of the Member States. … In these circumstances, Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union”. And we have also noted that Article 20(2)(b) TFEU expressly confers on all EU citizens the right to vote (and to stand as candidates) in “municipal elections” in their Member State of residence, under the same conditions as other nationals of that State. “Municipal elections” for these Treaty purposes arguably covers all local government elections in England. Article 20(2)(b) TFEU also governs EU citizens the right to vote and to stand as candidates in elections to the European Parliament. Provisions of national law which fall within the ambit of the voting rights protected under the European Treaty are challengeable, as a matter of EU law, even by individuals who hold the nationality of that Member State. National laws such as Section 3(1) RPA which would restrict or deny the rights to vote protected under EU law are also challengeable on the basis of their incompatibility with the fundamental rights protected as general principles of EU law - see Advocate General Tizzano in his Opinion Spain v. UK: “In the Community legal order ‘both the Community and its Member States are required to respect fundamental rights’, on a primary basis, and that therefore, in that legal order, ‘measures which are incompatible with observance of [those] . . . rights” are not acceptable’.Article 52(3) of the EU Charter of Fundamental Rights (“CFR”) specifies that “in so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.” Thus Charter rights may exceed the base level of protection afforded by the Strasbourg Court under and in terms of the ECHR. Article 20 CFR also provides that “everyone is equal before the law”. The deprivation of the claimant’s right to vote in local government elections and separately the European Parliamentary election on the basis only of the automatic operation of the Convention incompatible provisions of Section 3(1) RPA deprives the claimant, as a citizen of the European Union, of the genuine enjoyment of the substance of the rights conferred on him by virtue of his status as an EU citizen and/or the EU principle of equal treatment and/or is incompatible with respect for the claimant’s EU fundamental rights which are guaranteed both as general principles of EU law and as set out in the Charter of Fundamental Rights.The refusal of the claimant’s application to be included on the Electoral Register in accordance with the provisions of Section 3(1) RPA is accordingly incompatible with the claimant’s EU law right to vote in the municipal elections of, and European Parliamentary elections in. the Member States.Possible legal action by the applicantThe applicant may seek to challenge the compatibility with his EU law rights of the decision of the Electoral Registrar, in reliance upon the terms of Section 3(1) RPA, to refuse to accept his application to be included on the electoral Register for local government elections and separately for elections to the European Parliament. He can challenge the compatibility of the application to him of the terms of Section 3(1) RPA with his EU law rights and seek the disapplication of this provision of national law as incompatible with respect for his fundamental rights as protected by and under EU law.To do so the applicant would require to raise a judicial review in order to ensure the proper recognition and vindication of his EU law rights. In any such judicial review he might seek:a declaration that the application to him of the provisions of section 3(1) of the Representation of the People Act 1983 insofar as he seek to be able to be included in the Electoral Register in respect of local Government Elections and European Parliamentary election is incompatible with his rights under Article 20(2)(b) of the Treaty on the Functioning of the European Union (“TFEU”) and separately with his rights under Article 40 of the Charter of Fundamental Rights of the European Union (“CFR”);an order requiring the Electoral Registrar to include the applicant on the Electoral at the address within the constituency where he currently resides under detention; and for such an order to be made ad interiman award of Francovich damages for the contravention of the claimant’s EU law rightsDamages for breach of EU law rights Further, it is inherent within the European Treaty that an individual may seek and obtain Francovich damages in respect of a contravention of his EU law rights by the authorities of a Member State. The refusal on the part of the Electoral Registrar to disapply Section 3(1) RPA and so accede to the applicant’s application for his name to be entered on the Electoral Register is contrary to EU law. In principle the Electoral Registrar’s refusal to comply with his duties under EU law sounds, as a matter of EU law in an individual Francovich damages claim against him. The right to such Francovich damages may arise even where the breach of EU law (including Treaty articles) has been committed by national legislatures. As the Grand Chamber observed in Eman and Sevinger v. Netherlands:“As regards possible legal redress (rechtsherstel) for a person who, because of a national provision which is contrary to Community law, is refused registration on the register of electors for the election of Members of the European Parliament …. it must also be recalled that the principle of liability on the part of a Member State for damage caused to individuals as a result of breaches of Community law for which it can be held responsible is inherent in the system of the Treaty, and that a Member State is thus required to make reparation for the damage caused where the rule of law infringed is intended to confer rights on individuals, the breach is sufficiently serious and there is a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties…[I]t is for the national law of each Member State to determine the rules allowing legal redress for a person who, because of a national provision that is contrary to Community law, has not been entered on the electoral register for the election of the members of the European Parliament of 10 June 2004 and has therefore been excluded from participation in those elections. Those remedies, which may include compensation for the loss caused by the infringement of Community law for which the State may be held responsible, must comply with the principles of equivalence and effectiveness” In Alajos Kiss v. Hungary the European Court of Human Rights awarded €3,000 by way of just satisfaction damages in respect of an applicant who – in accordance with the requirements of the Hungarian Constitution itself – had been excluded from the electoral register solely on the strength of his placement under partial guardianship amounted to a violation of Article 3 of Protocol No. 1. In all the circumstances the sum sought by way of Francovich damages is a reasonable approach to take by way of obtaining an effective remedy for breach of his EU law protected rights.Right to legal aid for vindication of EU Law rightsAs a public authority the Legal Services Commission are bound to have regard to and to apply directly effective provisions of EU law even over and against provisions of national law. In DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v. Germany the CJEU found that a blanket prohibition in German law on the possibility of legal persons applying for and obtaining receiving legal aid to pursue a civil claim for (Francovich) damages against the German State before the German court was contrary to the requirements of Article 47(3) CFR (which provides that “legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice”). The CJEU found that any decision on legal aid should take, instead into account all the circumstances of the individual case and any refusal, restriction or imposition of conditions on the granting of legal aid should comply with the requirements of the test of proportionality.The judgment in DEB is of more general interest for the following two reasons. First the CJEU confirmed that (at paragraph 35) provisions of the Charter which parallel rights already set out in the ECHR may be relied upon to give at least as good as, and in principle greater, protection than that currently afforded to the ECHR rights under Strasbourg jurisprudence. Secondly, the Charter right to legal aid was treated by the CJEU as a general and independent substantive right in its own terms and context , rather than as nothing more than that codified reflection of the limited pre-existing provisions of EU secondary law – notably Council Directive 2003/8/EC – which provided for the harmonisation of legal aid availability for natural persons only, and that within the context of cross-border disputes not concerned with (self-) employment issues 6 December 2011Matrix Chambers Griffin BuildingGray’s Inn London WC1R 5LN AIDAN O’ NEILL QC ................
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