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Case Law C-83/11 (27/03/2012)

Type: Opinions of Advocate General

Authority: European Authorities: Euopean Union' Court of Justice

Date: 03/27/2012

Subject: According to Advocate General, Article 3(2) 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 means that the persons coming within the scope of that provision have the possibility to obtain a right of entry and residence following an extensive examination of their application, having regard to their personal circumstances and, in the event of a refusal, a sufficiently justified decision which is open to judicial redress procedures. That provision does not require the Member States to recognise an automatic right of entry and residence for other family members who are nationals of a non-member country and who meet the requirements of Article 10(2)(e) of Directive 2004/38. According to Advocate General, the primary law of the European Union, in particular its provisions on Union citizenship and protection of private and family life preclude a Member State from refusing a national of a non-member country who comes within the scope of that provision residence in its territory, where that national wishes to reside with a member of his family who is a Union citizen, since such refusal has the effect of unjustifiably impeding the exercise of the right of the Union citizen concerned to move and reside freely within the territory of the Member States or causes a disproportionate impairment of his right to respect for private and family life, which must be ascertained by the referring court. Advocate General affirmed that the notion of ‘dependant’ does not imply that dependency existed shortly before the Union citizen moved to the host Member State; Article 3(2)(a) of Directive does not preclude national legislation which makes entry and residence for a national of a non-member country subject to conditions as to the nature or duration of dependency, provided that those conditions pursue a legitimate objective, are appropriate for securing the attainment of that objective and do not go beyond what is necessary to attain it.

Parties: Secretary of State for the Home Department

Classification: Freedoms - Art. 7 Privacy - Citizens’ rights - Art. 45 Freedom of movement - Freedom of residence - Justice - Art. 47 Justice: remedy

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