Residency Rights of Third-Country Nationals as Relatives of EU Citizens, Dispense di Diritto Processuale

Scarica Residency Rights of Third-Country Nationals as Relatives of EU Citizens e più Dispense in PDF di Diritto Processuale solo su Docsity! Is a relative of an EU citizen who is a third-country national entitled to reside in a Member State of EU? In contrast to the citizens of the union, who have the right to move and reside freely within the territory of the Member State, the third- country nationals can reside freely within the territory of EU only on specific occasions. One of those occasions is when they are relatives of an EU citizen. Directive 2004/38 lays down the rules for the EU citizens and their families to exercise their rights regarding residence and free movement. In Article 3(1) it says very clearly that this Directive applies only to Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in Article 2 point 2. The definition of family members offered by this Directive includes spouse, registered partner (if a Member State treats a registered partnership in a same way as a marriage), direct descendents who are under age of 21 and dependent direct relatives in the ascending line. The restrictive application of the directive raised a lot of questions and many appeals to judgement in front of the European Court of Justice. For example there was a Zhu and Chen case where the main questions asked to ECJ were whether it is possible to give to the EU citizen who in minor the right to enter and reside in a host Member State and whether this right can be applied even to his/her mother. Article 20 TFEU states that citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties so they shall also have the right to move and reside freely within the territory of the Member States. As the child cannot exercise fully its rights it is obligatory to grant the same rights to the mother. Another specific case where the Court was asked to answer the questions relating to relatives of EU citizens who are a third- country nationals was a McCarthy case where Mrs McCarthy, who had double nationality, tried to obtain permanent residence for her husband who was Jamaican. The difference between this case and Zhu and Chen case relies on fact that Mrs McCarthy, as an EU citizen, was self- sufficient in the meaning that to exercise her rights she didn’t have to rely on anybody, whilst Catherine Zhu, as an infant, had to rely on her mother to exercise correctly her rights to reside and move freely within the EU. This distinction seems to be very important because from decisions in other similar cases such as Zambrano case, Dereci and Others case and Yoshikazu Iida case, it seems that the EU took a specific approach to resolve such cases. The resolution relies on a criteria that if the genuine enjoyment of the substance of the rights conferred to the EU citizen of his/ her status cannot be reached in other way, the third- country member is enabled to obtain the same rights as an EU citizen. If the problems are only about family issues the same rights might not be conferred to the third- country national.