Eu Law Rights For Eu Citizens Only?

"There is a hierarchy of legal residents within the EU, with the Union citizens at the apex and third country nationals with no connection with EU citizens at the bottom of the ladder".

The Treaty of Maastricht established that: "every person holding the nationality of a Member State of the European Union is, as a result, a citizen of the Union." and is to benefit from " a set of fundamental rights and obligations enshrined in the EC Treaty among which it is worth underlining the right not to be discriminated on the basis of the nationality." That is to say, the rights of the European populous are, founded in and intrinsic to, their citizenship. The development of the concept of citizenship was an indicator of the move from an economic community to a political union. The prevalence of this was highlighted in the case of Baumbast : any former requirements of economic link were forgone and citizenship was to be of fundamental status. That said, whilst the status of citizenship was awarded in this case; it was not in its own right, but based on the rights derived from a child citizen. The elevation EU citizenship has been given means that it can only be restricted in very limited ways, that are be objectively justified.

Thesis The question of when and how these plentiful rights can be bestowed upon third country nationals ("These are transnational migrants, and their status differs from that of EU citizens and depends on their entry or residence conditions. They are aliens or non-EU citizens as they enter the borders" ) has been the subject of much debate. The answer has evolved organically through directives and case law, rendering the status of third country nationals somewhat unclear.

Fundamentally, to rightfully enjoy the benefits, the individual must rely upon a link with an established EU National; symbiotically using that individual's status to boost their own legal standing. The circumstances of rights of general application are few and far between, arguably insufficient alone to bestow any real enjoyment. It is to be submitted that the prerequisites and caveats to attaining the rights are too burdensome; creating a situation where it is in fairly rare circumstances that a third country national has unencumbered access to rights under EU law.

Rights pertaining to marriage The establishment of a legally recognisable marriage, with a Union Citizen, is arguably the most accessible circumstance under which a third country national can enjoy rights of Union Law. Once a third country national is established as a spouse or more generally a family member, under Directive 2004/38 (The Free Movement Directive) they are entitled to rights of free movement and residence, mirroring the rights bestowed upon genuine Union Citizens.

Whilst in theory this sounds both appealing and straightforward, in reality these rights are often extremely difficult to acquire and the directive, by its very nature, leaves Member States with a high degree of discretion regarding its implementation. Moreover, the non-specific wording and the various caveats contained further undermine and detract from clear access to the rights. An example of this is the lack of definition given to the word 'spouse' within the directive. With no clear definition, Member States have full autonomy to deny rights based on a number of factors, including sexual orientation and have been seen to do so. This highlights a level of falsity to preamble three of the directive stating the aim of interpretation being to "simplify and strengthen" the rights.

Whilst this directive is a measure to give rights, that third country national rights can be denied so freely, highlights that citizenship, "To outsiders means exclusion." This issue is even more prevalent on observation of the lack of both Union and European Court of Human Rights (ECtHR) consensus on the rights of homosexuals and the recognition of same sex partnerships. Despite the clear attempts at prohibiting discrimination in legislation, more often than not it would appear that when the opportunity for judicial precedent arises, the court is too quick to succumb to Member State national values; resulting in an unsavoury situation where third country nationals, of homosexual orientation, are twice discriminated against. This was apparent in the cases of Gas & Dubois and Schalk and Kopf v Austria where the EctHR rejected a finding of discrimination primarily on the grounds of permitting a large margin of appreciation for a highly contentious issue.

The Union is undoubtedly attempting to permit third country national rights and prevent discrimination in doing so, under both the EU non-discrimination directives and through Article 14 and Protocol 12 of the European Convention of Human Rights (ECHR). That said, the fact that the discriminatory prevention is currently limited, sporadic and ultimately piecemeal has the potential to affect homosexual third country nationals claiming rights. Regulation 2201/2003 , more commonly known as Brussels II, does little to mitigate this situation with its failure to mention the recognition of marriage as a fundamental right in legislation. Therefore, directives such as the Free Movement Directive remain entirely open to Member State interpretation in the definition of family member and spouse. With the often subjective and politically motivated international private law of the Member States left to determine the scope of such fundamental rights, the rights of third country nationals, even in well established areas can often be called into question.

Rights granted on the basis of Article 8 - 'The Right to a Private and Family life' If the third country national can establish that a denial of their rights would adversely affect the Article 8 (right to family and private life) rights of a Union Citizen, they can initiate an action to have their rights guaranteed. In the case of X and Austria the ECtHR made this right applicable to all, with the finding of discrimination on the grounds of sexual orientation, and held that the right to a private and family life should apply equally to all types of family units. In terms of the third country national's standing, as with marriage, this action is solely reliant on the existing right of another, leaving the individual in a consistent state of dependency. Moreover, this ruling is very specific to Austria and its impact must not be over estimated. It is an encouraging ruling for third country nationals seeking to claim rights, but not a conclusive one.

Wholly internal limitations Even if a third country national can fall within the scope of Directive 2004/38 and be considered as a spouse or family member deserving rights, he may still be adversely affected by the 'wholly internal' specifications . If the situation is classed as wholly internal, that is to say a "demonstration that the parties` situations had did not have a Union dimension and was confined to one of the Member States" , the directive is again inapplicable and rights are denied.

This is a further example of the feebleness of third country national rights under EU law, as the wholly internal situation hinges entirely on the actual movement of the EU citizen, arbitrarily leaving a static third country national less worthy of rights than a mobile one. This was particularly evident in the case of McCarthy where a Union citizen was unable to use her citizenship rights to secure the residency of her third country national spouse. As Mrs. McCarthy had remained in the UK throughout her life, her claim for residency under Directive 2004/38 was deemed 'wholly internal' and thus outside the scope of rights contained in the Directive.

Zambrano and the rights of Article 20 TFEU The case of Zambrano illustrates that once an applicant has established they are associated with a Union citizen, deserving a right to a private and family life, the Court seems more willing to actively enforce rights. Zambrano made clear that a 'wholly internal' situation could be circumvented on the finding of the violation of an EU citizens Article 20 TFEU rights.

The case concerned a Columbian national couple who sought permanent residency in Belgium, but were prevented on the basis that their two children, of Belgian nationality, had never exercise their rights of free movement. As the situation appeared 'wholly internal' the applicants then based their claim on the rights contained in Article 20 and set forth what is now to be known as the Zambrano, "genuine enjoyment of the substance of the rights" test. In an extremely far reaching and surprising ruling the ECJ, supported by Advocate General Sharpston, stated that, "Article 20 TFEU is to be interpreted as meaning that it precludes a MS from refusing a 3rd country national upon whom his children, who are EU citizens, are dependent, a right of residence in the MS of residence and nationality of those children, and from refusing to grant a work permit, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen ".

A refusal of residency would have had the negative implications of forcing the family to leave the Union as a whole and would deny the children all access to their citizenship rights. Were residency not allowed, the "genuine enjoyment of the substance of the rights" would be denied.

The 'wholly internal' situation is unjustifiable Whilst Zambrano is integral to profile and appeared to be a considerable progression in ensuring the rights of third country nationals, the subsequent pitfalls and misinterpretations of the ruling cannot be overlooked. It is evident that the general basis of Article 20 rights granted in Zambrano has not been consistently applied to later cases . It would appear falling within this established criteria is nigh on impossible, restricted to only unique circumstances, almost identical to the facts of the case. Advocate General Sharpston stated in the case the potential hazards of not establishing a "boundary to every rule. If there is no such limit, the rule becomes undecipherable and no one can tell with certainty who will, and who will not, enjoy the benefit it confers".

To heed her words, the ECJ attempted to confine the scope of the ruling. In the case of McCarthy the court established that a denial of residency on the basis that the situation did not require the EU citizen to leave the Union nor give rise to serious professional inconveniences. It has been widely acknowledged that "For the court system, McCarthy was a lost opportunity to set forth the scope of EU citizenship" As such, it was not accurate to assert that her Article 20 rights had or would be infringed. In the subsequent case of Dereci , in refusing the applicants claim for residency, the ECJ held the "genuine enjoyment" Zambrano test could not be based on economic dependency reasons alone. At paragraph 64 of the judgment it was expressed "the mere fact that it might appear desirable to a national of a Member State, for economic reasons or in order to keep his family together in the territory of the Union.is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted.' In the case of O&S the ECJ clarified that the test is not applicable when the union citizen, whose rights are being relied upon, is not currently dependent on the third country national.