Part II - The EU Family and Rights

6 The Fundament of the Fundaments? Family Rights and the EU Charter of Fundamental Rights

Xavier Groussot , Gunnar Thor Petursson , and Alezini Loxa

6.1 Introduction

Similarly to other conventional fundamental rights, the right to respect for family life¹ was not mentioned in the European Union (EU) Treaties from the outset. The right of families of economically active EU nationals (workers) has been protected through secondary legislation already since the 1960s.² However, as emphasised by the Court of Justice of the EU (CJEU) in MRAX,³ the protection of the family life of EU Member State nationals was related to a primary objective, namely to ‘eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the Treaty’. This point had also been emphasised in Carpenter,⁴ which was delivered in the same month as MRAX.

The strong link between the right to family life and free movement is not surprising, and the question we will examine in the following pages is to what extent this link remains essential when invoking the right to respect for family life under the EU Charter of Fundamental Rights (the Charter).⁵ Can the Charter provisions extend the protection of family life under EU law? Or is a free movement element necessary for the activation of the Charter provisions? Moreover, how does the protection of family life under the Charter interact with the EU citizen status?

Investigating the link between free movement, family rights, and EU citizenship is essential for the following reason. The right to family life, which is often used in case law to interpret the free movement and citizenship provisions of the Treaty on the Functioning of the EU (TFEU), relates – using a federal jargon – to the issues of localism and the moral values of national communities.⁶ In the EU, this means that the interpretation and limitation of the right is dictated by the Charter’s horizontal clauses that guide the ‘competence valuation’, which takes place between the centre and the periphery, that is, between the EU and its Member States.⁷ Whether family rights can be protected at the EU level or at the national level can have far-reaching consequences, especially for families that do not fit within the traditional heteronormative ideal. In the context of rule of law backsliding in some Member States,⁸ strengthening the link between family rights and EU citizenship can consolidate the protection of queer families.

In this chapter, we examine how family rights are protected in EU law. Section 6.2 discusses the relationship between the horizontal provisions of the Charter and family rights. In this section, we highlight that the horizontal provisions of the Charter affect both the extent of protection of family life (depending on whether a claim falls within the scope of EU law) and the substance of the right (what the scope of the right can be).

In Section 6.3, we turn to the specific provisions related to the right to family life (Article 7 and its attached rights such as Article 9 on the right to marry, Article 21 on non-discrimination, Article 24 on the best interests of the child, and Article 33 on the protection of family life) and we examine how the protection they afford has been developed in the case law of the Court.

In Section 6.4, we look at the interaction of family rights with the citizenship provisions under Articles 20 and 21 TFEU. The analysis shows how the CJEU has at times protected family rights without reference to the Charter, but through embedding such rights in the protection afforded by the EU citizen status. More recent case law developments have pointed to a stronger link between the Charter and the citizenship provisions. Section 6.5 concludes our investigation, by suggesting that the EU citizenship provisions have shown more potential for the protection of family life than the Charter provisions on family rights.

6.2 Family Rights and the Horizontal Provisions of the EU Charter

Since the entry into force of the Charter, the right to respect for family life is protected under Article 7 which stipulates that ‘Everyone has the right to respect for his or her private and family life, home and communications’. Further, Article 6 of the Treaty on European Union (TEU) provides that the Charter has ‘the same legal value as the [EU] Treaties’. By virtue of this Article, the right to respect for family life has been augmented to the level of primary law. This repositioning of fundamental rights in EU law was both timely and welcomed,⁹ as it marked a new stage in the process of European integration.¹⁰

At the same time, it has been maintained that – within the scope of EU law – the Charter is to be the starting point and reference legislation for any legal analysis involving fundamental rights.¹¹ The Charter is, thus, the fundament for fundamental rights protection in EU law – it impacts and steers the review of EU law in light of fundamental rights. Relatedly, the protection offered under Article 7 of the Charter is dependent on and conditioned by the applicability of the Charter.

Before analysing the substantive scope of Article 7 of the Charter and related rights under the Charter in Section 6.3, it is, first, important to lay down and explain the circumstances under which the Charter is applicable. Second, since the Charter rights and principles are applied on the basis of a methodology that is impacted by the horizontal provisions found in Title VII of the Charter, this section will also address the main elements of the horizontal provisions and their implications for the right to family life.

When analysing the case law of the CJEU, where fundamental rights play a role, three main categories of cases emerge: (1) cases that deal with actions of the EU institutions,¹² including annulment cases under Article 263 TFEU; (2) cases that deal with the implementation of EU law at the national level, that is, the situation when Member States are implementing and applying EU secondary law at the national level;¹³ and (3) review of Member State actions in light of fundamental Treaty provisions/principles, such as the citizenship provisions, free movement provisions, or other fundamental provisions of EU law.¹⁴ Each of these categories represents an ‘entry point’ through which the EU Charter, with all that follows, may enter the scene of EU law.

For the first category of cases, Charter rights may be used to review the legality of EU secondary norms. Examples of such cases include Digital Rights Ireland,¹⁵ and Schrems I and Facebook Ireland and Schrems (Schrems II) cases,¹⁶ where Articles 7 and 8 of the Charter played an important role in gauging the validity of EU secondary norms. The first case where the CJEU referred to the Charter revolved around family rights. This was Parliament v Council,¹⁷ a case that concerned the European Parliament’s (unsuccessful) claim for the annulment of the final subparagraph of Article 4(1), Article 4(6), and Article 8 of Directive 2003/86 on the right to family reunification.¹⁸

In the second category of cases, we have the situation where EU secondary norms are to be interpreted in light of fundamental rights when implemented and applied at the national level. This category features the largest number of cases, which concern, for example, deportation and family reunification regulated in secondary law, the national application of which must be compliant with fundamental rights. Many examples relate to the application of Directive 2004/38,¹⁹ and other instruments, such as Regulation 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility.²⁰

In the third category of cases, we have the application of Treaty provisions in review of Member States’ measures. In this category, we find the typical free movement situations such as in Carpenter, where the right to family life is a threshold over which Member States need to go to successfully justify a restriction to free movement. In this category, we would place cases that are based on the fundamental provisions found in the Treaty, namely Article 20 and/or Article 21 TFEU on EU citizenship and the rights of EU citizens to move and reside freely in the territory of member states.²¹ The cases concerning citizenship and fundamental rights, in particular the right to family life, can broadly be fleshed out in three main areas: firstly, situations where Union citizens are being deported from a host member state; secondly, claims that involve the Union citizen’s identity;²² and, thirdly, cases that concern the right to respect for family life.²³ In sum, fundamental rights – and more precisely EU Charter rights and principles – operate in varying situations within EU law.

On the relationship between the right to family life and the horizontal provisions of the Charter, this right applies following Article 51 of the Charter to the actions of the EU institutions, and to the Member States, ‘when implementing Union law’.²⁴ When falling within the scope of EU law, a situation involving the application of Article 7 of the Charter should pay particular consideration to the non-absolute nature of the right to family life and to its close relationship to Article 8 ECHR.

The very substance of a fundamental right, such as the right to family life, is very much linked to the extent of the acceptable limitations to that right under Article 52(1) of the Charter. It should be highlighted that EU fundamental rights are not only limited or balanced against each other, they may, and very often do, act in a complementary way. A case in point is Article 47 of the Charter that is often linked with a substantive fundamental right.²⁵ Article 52(1) of the Charter is a specific limitation clause, to be applied ‘horizontally’ throughout the Charter.²⁶

Importantly, the EU right to family life is also a corresponding right to Article 8 ECHR following Article 52(3) of the Charter and the explanations to the Charter.²⁷ In Article 52(3) of the Charter, we find a homogeneity-type clause,²⁸ which states that insofar as the Charter contains rights, which correspond to rights guaranteed by the ECHR, the meaning and scope of those rights shall be the same as laid down in the ECHR. However, the same provision also states that this shall not prevent Union law from providing more extensive protection. Even if many attempts were made during the drafting of the Charter to include a direct reference to the case law of the European Court of Human Rights (ECtHR), no such reference is found in the Charter.²⁹ However, as held by Groussot and Gill-Pedro, by giving the Charter binding force as primary EU law, the EU is committing to protecting rights guaranteed by ECHR, where an equivalent is found in the Charter. This means, in their view, protecting the rights ‘as defined by the ECtHR’.³⁰ Article 52(3) of the Charter will also have to be read, applied, and interpreted in light of Article 53 of the Charter. Indeed, in the Explanations to the Charter, the following is stated regarding Article 7:

The rights guaranteed in Article 7 correspond to those guaranteed by Article 8 of the ECHR. To take account of developments in technology the word ‘correspondence’ has been replaced by ‘communications’. In accordance with Article 52(3), the meaning and scope of this right are the same as those of the corresponding article of the ECHR. Consequently, the limitations which may legitimately be imposed on this right are the same as those allowed by Article 8 of the ECHR … .³¹

This view on the substantive scope of Article 7 of the Charter and its strong link with Article 8 ECHR was also clearly confirmed by the CJEU in the O. and S. case, where the Court described Article 7 of the Charter as ‘containing rights corresponding to those guaranteed by Article 8(1) [ECHR]’.³² Similarly, in Carpenter, which was delivered prior to the entry into force of the EU Charter, the Court relied solely on Article 8 ECHR.

6.3 Protection of Family Life in the Charter and the Case Law of the Court

The protection of family life in the Charter appears in Article 7, but the scope of protection of the right is also related to Article 9 on the right to marry, Article 21 on non-discrimination, Article 24 on the best interests of the child, and Article 33 on the right to family and professional life.

The latter Article, while mentioned in case law, has not had any effect on expanding the protection of family life in EU law. Specifically, Article 33(1) refers to the protection of family under EU law ‘as a unit to be protected in its own right, rather than exploited in the pursuit of other goals’.³³ Despite the potential of the provision as argued by Costello,³⁴ Article 33(1) of the Charter has only been invoked in disputes related to EU staff benefits and the Court has not elaborated on its scope of protection and relation to Article 7 of the Charter.³⁵ Article 33(2) of the Charter refers to the right to reconciliation of family and professional life. In essence, this provision refers to existing entitlements under secondary law.³⁶ Accordingly, the relevant case law refers to the right protected under Article 33(2) of the Charter next to secondary law which gives expression to it.³⁷ Nevertheless, the right has not been used as a basis for expanding reconciliation policies and extending the protection of families.³⁸

Contrary to the mere reference of Article 33 in case law, the Court has elaborated a lot more on the relation of Article 7 with Articles 21 and 24 of the Charter to extend the protection offered by EU law to queer families. Specifically, the case law on queer families had been developed with reference to the importance of the principle of non-discrimination even before the adoption of the Charter.³⁹ No use has yet been made of Article 9 on the right to marry, as the Court has held that the civil status of marriage and all the benefits that are connected to it are part of the competence of the Member States.⁴⁰ However, when Member States exercise their competence, they should comply with the principle of non-discrimination.⁴¹ This line of reasoning is still present in the Court’s case law even after the adoption of the Charter.

In the early case of K.B., the Court took a progressive approach to the right to marry of trans individuals, by linking the protection of the right to family life to non-discrimination.⁴² The case concerned the pension rights of the trans partner of a worker, K.B., a cis woman, who was in a relationship with a trans man who could not officially register his gender reassignment. As a result, they were unable to marry, which meant that K.B.’s partner was not entitled to her widower’s pension. The protection of the right of trans people to marry was ensured in this case by reference to Article 12 ECHR and the Goodwin v the UK case of the Strasbourg Court.⁴³ More specifically, the CJEU held that this case gave rise to inequality of treatment, not in relation to the enjoyment of EU rights, but with respect to the necessary precondition thereof, which is the capacity to marry.⁴⁴ By extrapolating the ECtHR standards of protection to the EU legal order, the Court found that the relevant national legislation, which precluded K.B. and her trans partner from marrying and, thus, benefitting from widower’s pension, was both in breach of Article 12 ECHR and EU law.⁴⁵

While K.B. added a significant layer of protection for trans rights,⁴⁶ a more restrictive approach was taken in relation to same-sex couples in Grant⁴⁷ and D and Sweden v Council.⁴⁸ The former case, in particular, has been criticised for the ‘lack of any real commitment to fundamental rights’.⁴⁹ Ms Grant was a worker who claimed a travel concession for her same-sex partner. Her employer refused to grant this benefit on the ground that such concessions were only provided to unmarried partners of opposite sex. The Court had to address the question of whether such refusal constituted discrimination prohibited by EU law.⁵⁰ The Court referred to the ECtHR case law of the time, which excluded same-sex relationships from protection under Articles 8 and 12 ECHR to justify the unequal treatment suffered by Ms Grant by her employer.⁵¹

D and Sweden v Council, too, concerned a worker, who claimed household allowance under the Council Staff Regulations. The benefit was granted to D’s married colleagues but was denied to him because his registered same-sex partnership was not considered equivalent to a marriage. Even though the Charter was not binding at the time, Advocate General Mischo took Article 9 into account in his Opinion, and pointed to its inherent limitations. Specifically, he highlighted that the explanations to the Charter are clear in that ‘Article 9 neither prohibits nor requires the grant of the status of marriage to relationships between persons of the same sex’.⁵² To the Advocate General, this confirmed the difference in treatment between marriage and same-sex partnerships.

The Court followed the Opinion of the Advocate General by affirming that marriage should be taken to imply a relationship ‘within the traditional meaning of the term’.⁵³ What is more, the Court confirmed the decision of the Court of First Instance, which had held that long-term same-sex relationships are not covered by the right to private life under Article 8 ECHR.⁵⁴ Even though there was no legal possibility for D to contract a marriage at the time, the Court found that the situations of marriage and same-sex partnership were not comparable, thus confirming the finding in Grant.⁵⁵ As a result, D could not claim a violation of the principle of equal treatment.⁵⁶

In Maruko, the Court took a different approach from D and Sweden v Council finding that same-sex partnerships and marriage could be treated as comparable.⁵⁷ Maruko was in life partnership with a person of the same sex. After the partner’s death, he claimed widower’s pension, but his claim was rejected because the two had not been married. The Court did not examine the case under the prism of the right to private life or the right to marry. It confirmed that issues of civil status and the benefits connected to it are matters of national competence.⁵⁸ However, the Court reminded that, in the exercise of such competence, Member States need to comply with non-discrimination provisions. Of relevance to the resolution of the case under a non-discrimination lens was also the fact that national law established same-sex partnership and provided for gradual equivalence of marriage and partnership in relation to social security rights.⁵⁹

The next development for same sex couples came with Coman.⁶⁰ In this case, the referring court made explicit reference to Article 9 of the Charter as relevant for the adjudication of the case.⁶¹ However, Advocate General Wathelet pointed out that Article 9 becomes irrelevant by virtue of the explanations to the Charter.⁶² These limit the scope of protection that the Union can offer and confirm – as does the case law – that the Member States are entirely free to arrange issues related to marital status.

Hence, what defined Coman was the protection offered by Article 7 of the Charter. The connection of Article 7 of the Charter with free movement and the right to non-discrimination necessitated the recognition of same sex unions for the purposes of exercising free movement rights under EU law. Contrary to the Advocate General, the Court did not make an explicit reference to the link between Articles 7 and 21 of the Charter. Instead, it referred to the evolution of ECtHR case law⁶³ and proceeded to declare that same-sex relationships do fall within the notion of private and family life.⁶⁴ The Court eventually resolved the case by connecting the protection of private and family life under Article 7 of the Charter to the effective exercise of free movement rights.⁶⁵ The case has been celebrated in scholarship for many reasons.⁶⁶ Among these is the fact that it provided ‘a federal path for the recognition of the marriage status for the purposes of residence in the EU countries still hanging behind institutionalization of same-sex unions’.⁶⁷ Contrary to previous case law which revolved around employment benefits, this case was central in extending the reach of EU fundamental rights protection through a free movement rationale.

The issue of protection of queer families returned to the Court’s docket in the V.M.A. case, which concerned the cross-border recognition of same-sex parenthood.⁶⁸ In that case, we see more clearly the impossibility of using Article 9 of the Charter as a tool to advance a broader conception of family life under EU law. Advocates General Wathelet and Mischo are proven right in their Opinions on earlier cases that it must be impossible for the Court to use Articles 9 and 7 of the Charter as tools to expand protection of queer families under EU law.⁶⁹ Instead, Article 9 can be used to reinforce national restrictive conceptions of family. Specifically, in V.M.A., the referring court invoked Article 4(2) TEU in conjunction with Article 9 of the Charter as a potential basis for justifying national competence on the conception of family and parentage. The Court confirmed once again that EU law, and the Charter in particular, cannot affect the discretion of Member States in the recognition of same sex marriage or parenthood in purely internal situations.⁷⁰ Avoiding unnecessary engagement with Article 9 of the Charter, the Court had recourse to Articles 7 and 24 to establish the protection of queer families and the cross-border recognition of same-sex parenthood as means to ensure the effective exercise of the free movement rights enjoyed under Article 21 TFEU.⁷¹

In this context, it is important to reflect on the two central issues which characterise the relation between Articles 7 and 9 of the Charter and the protection of queer families: competence and the link with free movement. First, in all of the cases discussed, the Court expressly stated that the civil status of marriage and the benefits tied thereto fall under Member States’ competence. A similar reasoning, albeit from the premise of human rights law, has been followed by the ECtHR. The ECtHR has held that Article 12 ECHR does not impose an obligation to grant same-sex couples the right to marry.⁷² Member States are entirely free to choose whether they allow same-sex marriage or not, the conditions under which they regulate same-sex unions, and whether they recognise them as equivalent to marriage or not. This is in line with the localist conception of sovereignty in US federalism, which maintains that marriage should be regulated at local level as it promotes ‘a shared moral vision of the good family life’.⁷³ Further, it confirms the danger that Weiler pointed in the early 2000s regarding the risk that Charter regresses the status quo: ‘each time an innovative concept were argued before the European Court, it would be pointed out that a proposal to that effect was considered in the drafting of the Charter and failed. It would be much harder for the Court to crystallise a Community right when such was considered and rejected by a political constituent assembly.’⁷⁴ The categorical nature of the explanations on Article 9 of the Charter precludes the possibility of ever using it to extend the protection of queer families.

This brings us to the second issue of links with free movement. Unable to use the substantive provisions of the Charter, the Court extends the protection of the right to family life by emphasising the need for effective exercise of free movement rights. After ascertaining that EU law does not affect Member State competence on marital issues, the Court reminds that the Member States should exercise their competence in compliance with the principle of non-discrimination and the free movement provisions. In essence, the Court extends the protection provided by the Charter to queer families by using the effective exercise of free movement rights as a ‘trump card’.⁷⁵ The effective exercise of free movement rights enjoyed not only by workers, but also by EU citizens under Article 21 TFEU has also been behind the extensive protection of family life. The more specific way in which this takes place and the reluctance of the Court to refer to the Charter when extending such protection will be analysed in the following section.

6.4 Family Rights and EU Citizenship

Family rights have often been discussed in EU law within the study of the citizenship case law, which has created a ‘bundle of rights’.⁷⁶ The relationship between the issue of citizenship and fundamental rights has never been simple.⁷⁷ Following Martínez Sala,⁷⁸ the CJEU started to progressively develop case law tying citizenship and EU fundamental rights, in particular the right to family life protected by Article 8 ECHR, through the general principles of EU law.

Moreover, the Court has on many instances employed Article 24 of the Charter on the rights of the child, thereby extending the protection of family life under EU law. In the early stages of the Court’s case law, the protection of children’s rights ‘remain[ed] parasitic on the migrant; rights [were] granted to children instrumentally in order to ensure economic success’.⁷⁹ However, as noted by McGlynn, the Charter marked an evolution in the EU legal order ‘from the instrumentalism which characterizes the fields of free movement, to the protectionism of policies on violence and trafficking, to a recognition of children’s independence and autonomy’.⁸⁰ Children were no longer seen as potential ‘consumers’ or ‘appendages to economic actors’.⁸¹ Instead the Court’s case law elevated them to ‘persons of their own right’.⁸²

Initially, the Court was reluctant to use the Charter as the legal basis of protection of the rights of children holding an EU citizenship. Instead, the protection of children as autonomous bearers of rights was based on the citizenship provisions. In the seminal ruling in Chen,⁸³ the Court adjudicated that the protection of the best interests of the Union child can be the basis of a derivative residence right for the child’s third-country national parent. This conclusion was made by reference to the need for an effective enjoyment of the rights conferred by Union citizenship to children. The Charter was not applicable at the time of adjudication and the principle of the best interests of the child was not referred to by the Court.

In a similar vein, Ruiz Zambrano confirmed the protection of children’s rights and the reluctance of the Court to employ the Charter.⁸⁴ In this case, the national court invoked the Charter as a basis for review of the national legislation at stake.⁸⁵ Advocate General Sharpston similarly suggested that the relevant questions be examined from a human rights angle by reference to the right to family life and the Charter.⁸⁶ However, the Court failed to take Article 24 of the Charter into account in its decision, demonstrating a ‘lack of confidence in human rights arguments’.⁸⁷ Instead, once more, it ensured the protection of Union children as autonomous bearers of rights under the citizenship provisions by reference to Article 20 TFEU and the ‘substance of rights’ test. The ruling in Ruiz Zambrano is very progressive, but the reasoning of the CJEU is minimal and excludes any reference to the application of the Charter and EU fundamental rights. In this ruling, we see a ‘constitutional challenge’⁸⁸ posed by the extension to fundamental rights in the citizenship case law which confirms Iglesias Sanchez’ suggestion that ‘the intersection between European citizenship and fundamental rights is extremely complex to articulate without pushing the contours of one of them beyond the carefully built‐up constitutional balances, since their underlying rationales give rise to significant tensions and difficulties when assessing the possible ways forward’.⁸⁹

Generally, post-Zambrano case law reflects and confirms the malaise of the Court to use the Charter in parallel with citizenship provisions.⁹⁰ Yet, following Rendón Marín,⁹¹ new developments may herald a new era in the intersection between EU citizenship and EU fundamental rights. In Rendón Marín, the CJEU applied a ‘slightly looser test’ in its interpretation of Article 20 TFEU by relying on the concept of dependency and the EU Charter.⁹² The case concerned a third-country national from Colombia with a criminal record. As a father, Mr Rendón Marín was responsible for the primary care of two children, one of Polish and the other of Spanish nationality, who were both schooled in Spain. The Court had to assess the refusal of a residence permit by the Spanish authorities based on reasons of public policy and public security having the possible consequence for Mr Rendón Marín moving back to Colombia. Was the effectiveness of the two children’s EU citizenship in danger here? For the Court, the situation at issue was capable of resulting in their deprivation of the genuine enjoyment of the substance of rights conferred by the status of Union citizenship. For that, the Court found that the case fell within the scope of EU law.⁹³ Relatedly, the assessment of Mr Rendón Marín’s situation should take into account the right to respect for private and family life (Article 7 of the Charter), read in conjunction with the obligation to take into consideration the child’s best interests under Article 24(2) of the Charter.⁹⁴ The interpretation of the CJEU on Article 20 TFEU follows a logic borrowed from the free movement case law, the Court first evaluating the potential breach of EU primary law like in Dassonville,⁹⁵ and thereafter assessing the restriction to primary law in light of the Charter and EU fundamental rights like in Carpenter.

After Rendón Marín, the crucial question was whether the interpretation of Article 20 TFEU in light of the Charter would be applied consistently in cases with similar factual situations. The CJEU provided a clear positive answer in two Grand Chamber cases: Chavez-Vilchez⁹⁶ and KA.⁹⁷ Chavez Vilchez concerned third-country national mothers of children with EU nationality who had applied for social assistance and child benefits in the Netherlands. Their applications were refused because the mothers had no residence rights at the time. The national court inquired whether the mothers can derive a right of residence from Article 20 TFEU.⁹⁸ In his Opinion, Advocate General Szpunar took the principle of the best interests of the child as a starting point.⁹⁹ Contrary to the Opinion of the Advocate General, however, the Court based the rights of irregular migrants who were parents of Union children on the ‘genuine enjoyment of the substance of rights conferred by Article 20 TFEU’ test. In this test, the Court deferred the resolution of the case to the national courts and pointed out that an assessment of the genuine enjoyment test should take place in connection to the right to respect for family life under Article 7 of the Charter and the obligation to take into account the best interests of the child under Article 24(2) of the Charter.¹⁰⁰ This highlighted the importance of fundamental rights protection as procedural limits to Member State action.

In KA, the Belgian courts asked the CJEU about the compatibility of national provisions and administrative practice with Article 20 TFEU and the Return Directive.¹⁰¹ These provisions made it possible for immigration authorities to refuse to examine applications for family reunification made by TCNs based on existing entry bans, and lead to the impossibility to determine on a case-by-case basis the relationship of dependency between an EU citizen and their TCN family member. Following the Opinion of Advocate General Sharpston,¹⁰² the Court considered that Article 20 TFEU precludes a national practice that consists of not examining an application for residence for the purposes of family reunification by a TCN family member of a Union citizen who is a national of that Member State and who has never exercised his/her right to freedom of movement.¹⁰³ In assessing the existence of a relationship of dependency capable of justifying a derived right of residence under Article 20 TFEU, the national authority must take account Articles 7 and Article 24(2) of the Charter.¹⁰⁴ The Court also elaborated on the concept of dependency by delineating a clear line between situations involving minor and adult EU citizens. For the Court, in situations where the EU citizen is an adult, dependency is conceivable ‘only in exceptional circumstances’ where the separation of the EU citizen and the TCN family member is not possible.¹⁰⁵ Overall, KA constitutes an important addition to the case law because it clarified the concept of dependency in the use of the ‘substance of rights test’ and the evaluation of a potential breach of the effectiveness of EU citizenship by national authorities.

New positive developments on the right to family life can also be seen in relation to the interpretation of Article 21 TFEU. The Lounes case is of particular interest, although it does not explicitly mention Article 7 of the Charter.¹⁰⁶ In this case, the Court had to decide whether a Spanish national, Ms Ormazabal, who moved to the UK and became a British citizen, while keeping her Spanish nationality, could be treated in the same way as a person in a purely domestic situation. The CJEU refused to follow this path, which would have undermined the effectiveness of Article 21(1) TFEU,¹⁰⁷ and considered that a dual national who has exercised her freedom to move to a Member State other than her Member State of origin, may rely on the rights pertaining to Union citizenship, in particular the rights provided for in Article 21(1) TFEU.¹⁰⁸ In doing so, the Court underlined in a clear fashion that the rights which Member State nationals enjoy under that provision include the right to lead a normal family life in the host Member State together with their family members.¹⁰⁹ Although this paragraph does not expressly refer to Article 7 of the Charter, it is this specific provision that the Court has in mind when it mentions the right to lead a normal family life.¹¹⁰ As put by Réveillère, ‘the Court is attaching the right to lead a normal family life to Article 21 TFEU, as it has attached the right not to suffer discrimination on grounds of nationality to Article 20 TFEU in Martínez Sala’.¹¹¹ Lounes clarifies the sibylline language of the star case Baumbast, where it was stated more than twenty years ago that Article 21 TFEU can be legitimately restricted only if the restriction is proportionate and in accordance with the general principles of EU law.¹¹²

Lounes, Chavez-Vilchez and KA are central for interpreting Articles 20 and 21 TFEU in light of the Charter and, thus, understanding and viewing EU fundamental rights and the Charter as they should be – instruments of EU primary law that should be used consistently for interpreting not only EU secondary legislation but also Treaty provisions having a primary rank.¹¹³ The situation had become unclear following the Ruiz Zambrano ruling, but the most recent cases of the CJEU demonstrate a new ambitious judicial strategy of the CJEU in its use of EU fundamental rights.¹¹⁴

6.5 Conclusion

The Court’s case law from recent years has shown substantive and positive developments in the protection of family life which are noticeable particularly due to the increasing use of the Charter. However, it also follows from our analysis that the Court has always been very careful in its use of the Charter to extend the protection of family rights under EU law. The citizenship case law has provided a good illustration of the ‘hiding effect’ of EU family rights in relation to the ‘substance of rights test’ and Article 20 TFEU. The Court has in many cases avoided explicit reference to Charter provisions on the protection of family life. Instead, it has reinforced the protection of the right to family life by embedding it to the ‘substance of rights’ to be enjoyed by EU citizens. The same holds true in relation to the timid use of Article 9 of the Charter, which has now been stripped of all potential in the litigation on same-sex partnerships. From a general perspective, it seems difficult to deny that family rights are closely associated to the exclusive competence of the Member States and their most profound moral values and constitutional identities. This makes the penetration of the progressive Charter rights very difficult at the national level. In this area, localism and subsidiarity are high on the agenda of the Member States.

7 The Status of Family Member as a Pre-condition of the Free Movement in the EU

Michael Bogdan ^*

7.1 Introduction

Article 21(1) of the Treaty on the Functioning of the European Union (TFEU) gives every citizen of the European Union (EU) the right, subject to very few exceptions, to move and reside freely within the territory of the Member States. This freedom of movement means not only that the Member States must not impose direct restrictions in the form of administrative requirements such as visas and residence permits, but also that they must not deter EU citizens from moving by indirect obstacles, including those following from differences of family law. For example, an EU citizen might hesitate to use his/her freedom of movement to another Member State if that State would not recognise his/her marriage or his/her parental relation to his/her adopted children. Similarly, an EU citizen would probably refrain from moving if he/she could not be accompanied by close family members who are not citizens of the EU. Family law is thus of great relevance for the free movement of persons. This applies, in particular, to cross-border family law issues, such as the recognition in the host Member State of a family status created abroad.

This chapter deals with some aspects of the delimitation of the categories of those non-EU citizens who are entitled to move to and reside in an EU Member State in their capacity of family members of an EU citizen (the primary right holder).¹ The free movement of such persons is in principle regulated by the EU Directive 2004/38 of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.² Article 2(2) of the Directive defines family members as the spouse, the partner with whom the EU citizen contracted a registered partnership on the basis of the legislation of a Member State (provided the host Member State treats registered partnerships as equivalent to marriage), direct descendants who are under the age of twenty-one or are dependents, and dependent direct relatives in the ascending line (such as parents and grandparents).

Article 3 declares the listed family members to be indirect beneficiaries of free movement rights, but goes further than that by adding additional categories of persons whose entry and residence, in accordance with the national legislation and subject to an extensive examination of the personal circumstances of the persons concerned, the Member States are obliged to ‘facilitate’; these categories comprise certain persons with weaker family ties to the EU citizen concerned, such as ‘any other family members’ who, in the country from which they have come, are dependents, members of the household, persons requiring personal care by a family member, or partners having a duly attested durable relationship with the EU citizen (the last-mentioned group, comprising mainly de facto cohabitees, is in some Member States, such as Sweden,³ regarded as a legitimate family form regulated by law). However, the right of these persons to have their entry and residence ‘facilitated’ is much weaker than the entry and residence rights of family members listed in Article 2(2).

As opposed to the criteria of being a dependent, member of household, or a person requiring personal care by the EU citizen, which are basically mere matters of fact, the status of belonging to one of the categories of family members mentioned specifically in Article 2(2) of the Directive (spouse, registered partner, direct descendant, or direct ascendant) is a legal issue, to be answered in principle on the basis of the family law of the host Member State, including its rules of private international law.⁴ Only exceptionally there are uniform rules of EU private international law regarding family law status, such as the provisions on the recognition of divorces and marriage annulments in the EU Regulation 2019/1111 (known as Regulation Brussels IIb).⁵ There are presently no EU regulations or directives on the validity of marriages, validity and dissolution of registered partnerships, paternity and other parenthood, and adoptions.⁶

This gives rise to the question whether the Member States have full discretion to deal with these issues or must, to comply with Article 21(1) TFEU and the above-mentioned Directive 2004/38, respect family relationships created abroad pursuant to foreign law. This is of particular interest whenever the family status in question is in the Member State where it is relied on considered reprehensible or is totally unknown.

This question has arisen, and was to some extent answered, in three recent judgments of the Court of Justice of the European Union (CJEU). The importance of the three decisions is underlined by the fact that all of them have been rendered by the Court’s Grand Chamber. The purpose of this chapter is to subject the three judgments to a critical analysis, regarding both the conclusions and the reasoning of the CJEU.

7.2 The Case of Same-Sex Marriage

The first judgment, Coman v Inspectoratul General, was rendered on 5 June 2018.⁷ It concerned two persons of the same sex who had married in Belgium in accordance with Belgian law. One of the members of the couple lived at that time in Belgium and was an EU citizen (he possessed both American and Romanian nationality), while the other held only American citizenship and continued to live in the United States. After some time, the couple wished to move together to Romania, but the Romanian authorities refused to grant the American spouse long-term residence rights on grounds of family reunion pursuant to EU law, because in accordance with Article 227 of the Romanian Civil Code ‘marriages between persons of the same sex entered into or contracted abroad by Romanian citizens or by foreigners shall not be recognised in Romania‘. The applicants argued that this provision was contrary to the Romanian Constitution, so the matter was referred to the Romanian Constitutional Court which, in turn, had doubts about the proper interpretation of the EU Directive 2004/38 and turned to the CJEU for a preliminary ruling.

To start with, it must be noted that the case did not, in fact, fall directly within the scope of application of Directive 2004/38. The CJEU had on several previous occasions interpreted this Directive, in accordance with its wording,⁸ as to mean that it governs only those situations where an EU citizen and his family members who are third-country nationals want to enter and reside in a Member State other than that of the EU citizen’s nationality. Consequently, it does not confer a derived right of residence on third-country nationals who intend to accompany or join their EU relative in the latter’s own Member State.⁹ However, the full effect of the freedom of movement granted to EU citizens by Article 21(1) TFEU presupposes that an EU citizen can bring his close family with him also when he returns to his own Member State, since he would otherwise be discouraged from exercising that freedom by leaving his State. The third-country family members of an EU citizen who moves to his own Member State, even though not entitled to a derived right of residence pursuant to Directive 2004/38, can thus be granted such right directly on the basis of Article 21(1) TFEU. The conditions for obtaining such right must not, according to the CJEU, be stricter than those stipulated in Directive 2004/38, which means that the Directive is to be applied by analogy even in the situation dealt with in the Coman judgment.

The CJEU went on to admit that a person’s marital status is a matter that falls within the competence of the Member States, which are thus free to decide whether or not to allow marriage for persons of the same sex in their domestic law. However, the exercise of that competence must comply with EU law. To permit the Member States to accord or refuse residence rights to third-country nationals who lawfully married an EU citizen in another Member State where the EU citizen genuinely resided at that time, would make the freedom of movement of EU citizens vary from one Member State to another depending on the forum Member State’s attitude towards same-sex marriages. Furthermore, a refusal of residence rights could in its consequences amount to denying the EU citizen his right to return to his own Member State together with his spouse.

A restriction on the freedom of movement may, nevertheless, be justified if it is based on objective considerations of public interest, is proportionate to its legitimate objective, and does not go beyond what is necessary to attain that objective. Some Member States submitted observations to the CJEU referring to the fundamental nature of the institution of marriage as a bond between a man and a woman and claimed that even if a refusal to accept same-sex marriages might constitute a restriction of the rights under Article 21(1) TFEU, such a restriction is justified on grounds of public policy and national identity protected by Article 4(2) TFEU.

This reasoning was, however, not accepted by the CJEU, which stated that any restrictions imposed on a fundamental right such as the freedom of movement under Article 21 TFEU must be interpreted strictly and cannot be determined unilaterally by each Member State without control by the EU. The public policy exception may be relied on only if there is a genuine and sufficiently serious threat to a fundamental interest of society. The obligation of a Member State to recognise a same-sex marriage ‘for the sole purpose of granting a derived right of residence to a third-country national’ does not, according to the CJEU, undermine the institution of marriage in that Member State. Neither does it undermine the national identity there or pose a threat to the public policy. Furthermore, any national restrictions on the freedom of movement must be consistent with the fundamental rights protected by the Charter of Fundamental Rights of the EU,¹⁰ including its Article 7 guaranteeing protection of private and family life. That Article must be understood in the same way as the corresponding Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which is interpreted by the European Court of Human Rights (ECtHR) as to apply to both same-sex and opposite-sex couples.¹¹

The CJEU concluded, therefore, that Article 21(1) TFEU gives a third-country national of the same sex as his EU spouse, who married in accordance with the law of the Member State where the EU spouse had genuine residence at that time, the right to move to and reside in the Member State of which the EU spouse is a national irrespective of the fact that the marriage is not recognised there. As mentioned above, this derived right of residence must not be subjected to conditions that are stricter than those stipulated in Directive 2004/38.

While the outcome of the Coman case, protecting the right to family life of same-sex married couples, can hardly be objected to, some parts of the reasoning and terminology used by the CJEU seem to be more controversial. It is noteworthy that the Court repeatedly affirms the obligation for a Member State to ‘recognise a marriage between persons of the same sex’, even though merely for the sole purpose of granting a derived right of residence to a third-country national.¹² This obligation to recognise the marriage is not mentioned in the holding itself and it is almost certainly not meant to imply the duty to consider the couple to be actually married. Considering the same couple to be married for some purposes only creates a situation where the question of whether they are married cannot be answered by a simple ‘yes’ or ‘no’. It is true that limping marriages are a well-known phenomenon in private international law, but they normally concern marriages that are recognised in some countries only, and not marriages that are recognised and unrecognised in the same country depending on the context.

It is interesting that in the Coman judgment the CJEU, when applying Article 21(1) TFEU in the light of analogies borrowed from Directive 2004/38, relied on the Directive’s Article 2(2) and discussed whether the same-sex marriage could be recognised with the effect that the third-country citizen involved would be considered a ‘spouse’ for the purposes of a derived right of residence. The Court did not discuss the possibility of analogous application of Article 3(2) of the Directive, that might probably qualify the same-sex spouse as an ‘other family member’ or at least as a partner with whom the EU citizen had ‘a durable relationship, duly attested’. The probable main reason of the Court’s choice on this point is that whereas Article 2(2) grants the same-sex spouse an almost automatic right of entry and residence, Article 3(2) would place him in a much weaker position, merely obliging the Member State concerned to undertake an extensive examination of his personal circumstances to conclude whether his family life was of such a kind that would entitle him to family unification pursuant to the national legislation of that Member State. It is true that a decision refusing the right of entry or residence would even in such a case have to provide justification and comply with Article 7 of the Charter of Fundamental Rights of the EU and Article 8 ECHR, but the compulsory extensive examination of personal circumstances could take time and the outcome would be much more uncertain, thus subjecting same-sex couples to discrimination.

One may also question the wisdom of limiting the holding of the Coman judgment explicitly to situations where the same-sex marriage has been concluded in an EU Member State pursuant to its law, an additional condition being that the EU citizen concerned must have been a genuine resident there at the time. The arguments used by the CJEU in support of its decision should reasonably carry the same weight even if the same-sex marriage in question had been concluded in the United States pursuant to American law during the EU citizen’s short visit there. There are fortunately no reasons to interpret the Court’s holding e contrario as to mean that under such circumstances the outcome would be different. It is submitted that the CJEU simply chose to limit the holding of its judgment to the circumstances in the case at hand and refrained from expressing an opinion on other situations.

It follows clearly from the wording of the Coman judgment that the CJEU did not intend to oblige the Member States to give same-sex marriages concluded in another Member State full effects under private law, for example as to maintenance, marital property regime, or inheritance. This remains an open question though, since even differences between Member States regarding such issues may conceivably discourage a couple from making use of the freedom of movement within the EU, especially in view of the increasing application of the law of the country of habitual residence.¹³ Theoretically, it is also possible that a refusal to recognise the married status as such might in some cases be deemed to constitute an unlawful restriction on free movement, for example, if the refusal by a Member State to recognise same-sex couples as married carries such a social stigma that it deters such couples from moving there.

7.3 The Case of Islamic Kafala

The second judgment, SM v Entry Clearance Officer, was rendered on 26 March 2019.¹⁴ It differs from the Coman case in two very important aspects. First, the disputed family member status was created in and pursuant to the law of a non-Member State, and second, the status itself was of a kind unknown in the law of the Member State to which the third-country citizen intended to move.

The judgment involved a French married couple residing in the UK, which at the relevant time was an EU Member State. An Algerian court assigned to them the parental responsibility for an abandoned child under the Algerian kafala system. This institution, based on Islamic law, gave the couple parental authority and responsibility which was in some respects similar to adoption. The couple undertook, inter alia, to give the child an Islamic education, keep her fit morally and physically, supply her needs, look after her teaching, treat her like natural parents, protect her, defend her before judicial instances, and assume civil liability for her detrimental acts. They were also authorised to receive family allowances, subsidies, and other benefits; to sign any administrative and travel documents; and to take the child out of Algeria. Furthermore, the child’s surname was officially changed to that of the couple.¹⁵

If deemed to be an adopted child of the French couple, the Algerian child would be classified as their direct descendant and, as such, would enjoy the right of entry and residence in the UK as their family member pursuant to Article 2(2) of Directive 2004/38.¹⁶ Nevertheless, the British authorities refused to clear the child for entry to the UK as an adopted child, on the ground that kafala was not recognised as adoption under UK law.

After the matter was referred to the CJEU, the Court pointed out that Article 2(2) does not designate the law determining the meaning and scope of the concept of ‘direct descendant’ and that under such circumstances the need for a uniform application of EU law and the principle of equality require that the concept must normally be given an independent and uniform interpretation throughout the EU. According to the CJEU, the concept of ‘direct descendant’ commonly refers to the existence of a direct parent–child relationship between the two persons concerned. The concept must be construed broadly, so that it includes both the biological and the adopted children, since it is established that adoption creates a legal parent–child relationship. Where there is no parent–child relationship, the child cannot, according to the Court, be described as a direct descendant for the purposes of the Directive.

The Court examined the legal effects of kafala and noted, inter alia, that unlike adoption, which is forbidden by Algerian law, the placing of a child under a kafala guardianship does not mean that the child becomes the guardian’s heir. Furthermore, a kafala relationship comes to an end when the child attains the age of maturity and may even be revoked at the request of the biological parents or of the guardian. The Court concluded that as opposed to adoption, kafala does not create such a parent–child relationship between the child and its guardian that would qualify the child as direct descendant in the sense of Article 2(2) of Directive 2004/38.

However, the Court did not stop there but went on to point out that the child, even though not a direct descendant under Article 2(2), could, depending on its personal circumstances in the individual case, be entitled to a privileged treatment pursuant to Article 3(2), that is, to have its entry ‘facilitated’. Recital 6 of Directive 2004/38 mentions that to maintain the unity of the family ‘in a broader sense’, the situation of persons who do not enjoy an automatic right of entry and residence since they are not family members should be examined by the Member State concerned on the basis of its own national legislation, taking into consideration their relationship with the EU citizen and any other relevant circumstances, such as their financial or physical dependence on the same. The examination should be extensive and, in the event of a negative decision, provide justification by stating the reasons for the refusal. The CJEU confirmed that the Member States have a wide discretion as regards the selection of the factors to be taken into account at this examination, but stressed that in accordance with Recital 31 of Directive 2004/38, their discretion must be exercised in the light of and in line with the provisions of the Charter of Fundamental Rights of the EU, whose Article 7, recognising the right to respect for private and family life, has the same meaning and scope as Article 8 ECHR.

The CJEU found it apparent that the actual relationship between a child placed under the kafala system and its guardians may, depending on all the current and relevant circumstances of the case, constitute a family tie falling within the definition of family life protected by these provisions. According to the CJEU, the assessment by the authorities of the Member State concerned must be balanced and reasonable and take into consideration, inter alia, the age at which the child was placed under the kafala system, whether the child has lived with its guardians since its placement, the closeness of the personal relationship between them, and the extent to which the child is legally and financially dependent on its guardians. The risk that the child will become a victim of abuse, exploitation, or trafficking must also be taken into account, but if it is established that the child and its kafala guardians will lead a genuine family life, the best interests of the child demand, in principle, that it be granted the rights of entry and residence to live with its guardians in the Member State where they reside.

It might seem close at hand to understand the CJEU judgment as to mean that the Court, while refusing to equal kafala to adoption,¹⁷ has recognised it as a valid family-law status sui generis, with legal consequences of its own. Such interpretation would, however, be incorrect. It is true that the Court considered the child to belong to the category of ‘any other family members’ under Article 3(2) of Directive 2004/38, but this is a very wide and vague category with no family law effects at all. Belonging to this ‘extended family’ gives no automatic right of entry or residence, unless the third-state national in question fulfils additional conditions such as being a dependent or a household member.

There is, of course, nothing preventing Member States from equalling kafala to adoption in their domestic family law and/or in their private international law for purposes other than the interpretation of the EU Directive 2004/38. The recognition of kafala, as an institution intended to protect orphans and abandoned children, could as such hardly be considered to violate the public policy of the host Member State.¹⁸ In this respect, kafala differs not only from a same-sex marriage but also from, for example, polygamous marriages.

A polygamous marriage appears, in fact, to be a particularly problematic example, since it questions the whole concept of spouse and family life prevailing in practically all EU Member States. It is very doubtful whether a Member State, even if recognising, in principle, the validity of polygamous marriages concluded abroad,¹⁹ must or can treat the parties to such marriages as spouses under Article 2(2) of Directive 2004/38 or as partners with a duly attested durable relationship under Article 3(2) of the same. In any case, Article 27 of the Directive allows Member States to restrict the freedom of movement and residence on grounds of public policy. Regarding the possibility of direct application of Article 21(1) TFEU, it is submitted that its interpretation should be based on an analogous application of Article 4(4) of Directive 2003/86 on the right to family reunification,²⁰ which provides that in the event of a polygamous marriage, where the third-country national residing in the EU already has a spouse living with him, the Member State concerned ‘shall not authorise the family reunification of a further spouse’. There are no reasons to treat, in this respect, the right to reunification with an EU citizen more generously than reunification with a third-country national residing lawfully in the EU.

7.4 The Case of Same-Sex Parenthood

The third judgment, V.M.A. v Stolichna obshtina, rayon ‘Pancharevo’, was rendered on 14 December 2021.²¹ The case concerned a child of a married same-sex couple, consisting of a British and a Bulgarian citizen. The child was born and resided in Spain and its Spanish birth certificate listed both parents as ‘Mothers’. The Bulgarian parent applied to Bulgarian authorities for a Bulgarian birth certificate, such certificate being necessary for obtaining a Bulgarian identity card and a Bulgarian passport. The application was rejected because the applicant refused to provide information about the identity of the child’s biological mother and the fact that the recording of two mothers on a birth certificate was contrary to the public policy of Bulgaria. Besides, the Bulgarian birth certificate form did not provide for the option of two mothers. On the other hand, the Bulgarian court requiring a CJEU preliminary ruling seems to have assumed that the child was in fact a citizen of Bulgaria (and thereby also of EU), probably because under the Bulgarian Constitution, a child is a Bulgarian citizen if at least one of the parents is a Bulgarian national.

The CJEU noted that an identity card or a passport were necessary to enable the child to exercise the right to move and reside within the territory of the Member States guaranteed by Article 21(1) TFEU.²² The Court confirmed that a person’s status, such as parentage, is a matter within the competence of the Member States, which are thus free to decide whether or not to allow joint parenthood for persons of the same sex under their national law. However, in exercising that competence, each Member State must comply with EU law, including the obligation to recognise the parent–child relationship between the child and each of the same-sex parents in the context of the child’s exercise of its rights under Article 21(1) TFEU. The CJEU added that this does not pose a threat to the public policy of the Member States, which are not required to recognise the child–parent relationship for purposes other than the exercise of the rights derived from EU law, such as for claims to inheritance or maintenance. The judgment followed much of CJEU’s reasoning in the Coman case, which need not be repeated here.

The situation in the Pancharevo case differs from that in the other two judgments above, because in Pancharevo it was common ground that the child in question was an EU citizen and, as such, a primary (as opposed to derivative) holder of the right to free movement within the EU. Nevertheless, the effective exercise of this right depended on the possession of an identity card or a passport issued by the Member State of the child’s nationality. The refusal of that State to provide such documents due to its refusal to recognise joint parenthood of a same-sex couple would deprive the child of its rights under EU law. This was understandably found unacceptable by the CJEU. On the other hand, an official document confirming the joint parenthood without indicating that this is for the sole purpose of free movement may be abused, for example, if it is used abroad for the purpose of claiming inheritance or other such right.

7.5 Conclusion

The discussed judgments can be understood as to mean that the nationals of the EU Member States have not merely both national and EU citizenship but even a double personal status, namely one for the enjoyment of rights under EU law and another for purposes governed by national law such as maintenance or inheritance. This may create some confusion, since neither the national legal systems nor the perception of the law by the populations of the Member States reckon with situations where the same person is at the same time both married and single, or both a parent and a stranger in relation to the same child.

It would, therefore, be preferable to leave the recognition of family status as such to national law (including its private international law rules to the extent that they have not been unified by the EU) and disconnect, in these cases, the issue of family status from the specific consequences of that status. By doing so, even officially unrecognised and invalid status can be given selected substantive effects, for example, regarding the right to free movement pursuant to EU law. In the meantime, the risk of confusion could, at least in theory, be avoided by requesting the Member States to produce model document forms indicating whether the status stated therein is limited to certain purposes only.

8 Family Members and the Citizens’ Rights Directive Broadening the Scope of the Principle of Effective Judicial Protection

Albertina Albors-Llorens

8.1 Introduction

Directive 2004/38/EC¹ (CRD) coalesced in one single legislative Act, the regulation of the right to free movement and residence of European Union (EU) citizens and their family members set out in the primary provisions of EU law² and removed the ‘sector-by-sector, piecemeal approach’³ to this right that had theretofore prevailed.⁴ This measure shares with its predecessors the underlying principle that the right of residence and free movement of EU citizens would not be effective unless extended to their close family members because, otherwise, EU citizens would be seriously discouraged from exercising their free movement rights.⁵

The academic literature has discussed in great detail the substantive dimension of the rights provided in the CRD and its evolution through the case law.⁶ However, this chapter will look at something different, namely, at the enforcement of these rights by members of the ‘family’ of the EU citizen – both ‘core’ members and ‘extended’ family members according to the division created by the Directive⁷ – and, in particular, at how the Court of Justice of the EU (CJEU) has applied the principle of effective judicial protection to these situations.

It is, of course, understood that whenever a substantive right exists, there should be an effective remedy that allows for its enforcement. The principle of effective judicial protection has been present in EU law through the case law of the CJEU⁸ and is now entrenched in primary EU legislation through Article 47 of the EU Charter of Fundamental Human Rights and Article 19 of the Treaty on European Union (TEU).⁹ In most areas of EU law, this principle has been interpreted in relation to the enforcement of substantive EU rights by the primary holders of these rights¹⁰ – that is, Union citizens. However, the CRD adds a different and interesting dimension to this landscape by also addressing the rights that family members derive from mobile EU citizens. From a legal perspective, these family members are therefore not considered as entities in their own right – unless they are also primary holders of EU rights as EU citizens – but as deriving any legal protection under EU law from the EU citizen entitled to free movement rights. This translates into a degree of remoteness and uncertainty insofar as the safeguard of their rights is concerned because these are contingent on the vicissitudes of fortune experienced by the primary holder of the EU rights. The unpredictability that flows from the subsidiary nature of the rights of family members is true both in relation to ‘core’ and ‘extended’ family members but, in relation to the latter, is further compounded by the fact that the CRD, as we shall see, imposes vaguer obligations on Member States than in relation to the former. Consequently, the precariousness of the substantive rights of family members means that the effective judicial protection of these rights – when established – becomes a matter of essential concern not only in assessing critically the level of protection offered by the CRD but also in considering the overall position of family members under EU law.

In a collection that seeks to explore the role of the family in EU law, this chapter aims to contribute an examination of how the guarantee of effective judicial protection has taken hold in the interpretation of the provisions of the CRD when applied to family members of an EU citizen. To this end, it will examine first the legal system of protection, both substantive and procedural, articulated by the CRD and then will analyse the evolution of the principle of effective judicial protection in relation to the family members of EU citizens. In particular, it will argue that the procedural safeguards included in the CRD to protect EU citizens and their families from restrictions on their right to entry or reside in a host Member State have been increasingly interpreted with primary and direct reference to the principle of effective judicial protection as configured in Article 47 of the Charter. This has enabled the Court to draw from a richer and broader body of case law and to bolster the protection offered by that principle rather than, as it had been historically the case, using the principle to infuse the interpretation of those guarantees within the narrow parameters of the CRD itself – or of Directive 64/221,¹¹ its immediate predecessor. Ultimately, the effect of this shift has been that a higher standard of protection has emerged in the case law.

8.2 The Legal System of Protection Articulated in the Citizens’ Rights Directive

The CRD provides that certain family members of an EU citizen, as defined in Article 2(2) CRD, are full beneficiaries of the protection of the Directive when they accompany or join the EU citizen.¹² These ‘core’ family members are: the spouse of the Union citizen; the partner with whom the Union citizen has contracted a registered partnership in a Member State – if the legislation of the host Member State treats registered partnerships as equivalent to marriage; the direct descendants who are under the age of twenty-one or are dependants and those of the spouse or partner; the dependent direct relatives in the ascending line and those of the spouse or partner.¹³ The protection that they receive encompasses the right to free movement and residence and other related rights such as entitlement to take up employment or self-employment in the host State¹⁴ and the right to equal treatment,¹⁵ as well as the application of substantive and procedural safeguards against restrictions of the right to entry to and expulsions from a host State on grounds of public policy, public security, and public health.¹⁶

By contrast, according to Article 3(2) CRD, the rights of entry and residence of other family members and of the partner with whom the EU citizen has durable relationship, duly attested, only have to be ‘facilitated’ by the host Member State.¹⁷ In its glorious open-endedness, the use of the term ‘facilitated’¹⁸ has predictably yielded an interesting body of case law in relation to this ‘extended family members’ that has clarified the content of this ‘facilitation’ obligation.¹⁹

We therefore see that the CRD bifurcates the protection given to the ‘family’ of an EU citizen into two categories: ‘core’ family members and ‘extended’ family members. The dividing line between these two groups is ultimately one that separates the automatic entitlement to the rights in the Directive (for those listed in Article 2(2) CRD) from the discretionary grant of these rights by the host Member State (for those listed in Article 3(2) CRD) – although an obligation falls on this State to grant the latter group of family members ‘a certain advantage’ over other third-country nationals.²⁰ In other words, while the circle of ‘core’ family members drawn by Article 2(2) CRD is slightly wider than the one in Regulation 1612/68, one of its predecessors,²¹ the family unit deserving of full protection by the CRD still seems to be mostly based on ‘legal marriage, biological links and economic dependency’.²² The case law of the CJEU has developed the key notions of ‘spouse‘,²³ ‘direct descendants and dependent ascendants’,²⁴ and ‘other family members’²⁵ in the context of the right to entry and residence under EU law, as well as its application to some internal situations on the basis of primary EU law.²⁶ However, the two-pronged approach to the family of the EU citizen entrenched in the legislative framework of the CRD has remained.

The system put in place by the CRD seeks to regulate in more detail than the Treaties the substantive rights that pertain to EU citizens and their family members. In relation to family members, whose position is not explicitly regulated in the primary Treaty provisions, the Directive develops their right of departure from²⁷ and entry to²⁸ a Member State; the conditions for their right to reside in a host Member State²⁹ for up to three months,³⁰ for more than three months,³¹ upon the death or departure of the Union citizen or divorce,³² and their right to permanent residence.³³ Furthermore, it also outlines related rights such as the right to take up employment and self-employment³⁴ and the right to equal treatment.³⁵

It is evident that, in the system of legal protection set out by the CRD, the rights of entry to and residence in a host Member State occupy a central position. For the purposes of this chapter, it is equally important to note that these are not absolute rights, but subject to limitations imposed by the Treaty and secondary legislation. These limitations apply to the mobile EU citizen who is the primary holder of these rights, but they can also inherently affect their family members, whose rights to entry and residence are, as we saw earlier, dependent on those of the EU citizen, particularly when they are third-country nationals.³⁶

Treaty-based limitations include those on grounds of public policy, public security, and public health.³⁷ The Directive adds some further restrictions to the right to reside on other grounds, notably where a temporary right to residence comes to an end because an EU citizen or a family member no longer satisfies the conditions set out for that temporary right in Articles 6 and 7 CRD.³⁸ These apply, for instance, to non-economically active EU citizens (unless they have acquired the right to permanent residence) who lack sufficient resources in the sense that they might become an unreasonable burden on the social assistance system of the host Member State or do not have comprehensive sickness insurance coverage.³⁹ More specifically, while the Directive gives ‘core’ family members a general right to reside in a host Member State in the event of the death or departure of the Union citizen or in the event of divorce, annulment, or termination of a registered partnership, it also places some important limitations on the retention of this right, which are more severe in the case of family members who are third-country nationals.⁴⁰ Additionally, Article 35 CRD allows the refusal, termination, or withdrawal of rights under the CRD in cases of abuse of rights or fraud, such as marriages of convenience. All these limitations can lead to situations where an EU citizen and their family members might be deprived of their right of entry and residence, something, which as acknowledged in the preamble to the Directive ‘can seriously harm persons, who having availed themselves of the rights and freedoms conferred on them by the Treaty, have become genuinely integrated into the host Member State’.⁴¹

It is therefore unsurprising that the CRD should develop the conditions pertaining to these restrictions in quite some detail. In particular, Chapter VI of the Directive contains an array of substantive principles⁴² and procedural safeguards that Member States must respect when restricting the rights of entry and residence on grounds of public policy, public security, and public health. The latter include the right of mobile EU citizens and their family members to be notified of decisions depriving them of their right to entry or residence (Article 30 CRD) and the right to access to judicial and, where appropriate, to administrative redress procedures and the right to appeal against decisions taken against them (Article 31 CRD). These central provisions are supplemented by Articles 32 and 33 CRD, which cover, respectively, limitations on the use of exclusion bans and the prohibition of automatically using expulsion as a criminal penalty. Likewise, Article 15 of the CRD extends, by analogy, those procedural safeguards to cases where the right to residence is restricted on other grounds,⁴³ as does Article 35 CRD in relation to situations involving an abuse of rights.

While the substantive principles contained in Articles 27–29 CRD reflect the principle frequently emphasised by the Court, that derogations to free movement are to be interpreted strictly,⁴⁴ the procedural safeguards in Articles 30–31 CRD have now been increasingly interpreted by the Court by primary reference to the right to an effective remedy enshrined in Article 47 of the EU Charter in situations where mobile EU citizens and their family members are expelled or refused entry to a host Member State.⁴⁵ It is, therefore, in this context that the right to effective judicial protection of family members of EU citizens has come strongly to the fore. In the sections that follow, we will consider the interpretation of this right in relation to both ‘core’ and ‘extended’ family members of EU citizens.

8.3 The Principle of Effective Judicial Protection of Family Members under the Citizens’ Rights Directive

The CRD shored up and extended the procedural guarantees provided in Articles 6–8 of Directive 64/221⁴⁶ – the original Directive that regulated restrictions to free movement. Recitals 25 and 26 of the CRD neatly illustrate this by making it clear, respectively, that procedural safeguards of the rights of Union citizens and their family members in the event of their being denied leave to enter or reside in another Member State should ensure a high level of protection of these rights and that judicial redress procedures should be available to Union citizens and their family members who have been refused leave to enter or reside in another Member State. This stance has been robustly endorsed by the CJEU, when applying Articles 30 and 31 CRD, with the result that the principle of effective judicial protection has begun to emerge strongly in some cases as the primary and explicit guide in the interpretation of these provisions rather than taking a more implicit role by pervading the application of the specific procedural guarantees set out in the Directive.

In the following sections, we will explore both this phenomenon and its extension to the rights of family members under the CRD. To this end, we will first consider some examples of how the principle was used in earlier case law under Directive 64/221⁴⁷ and then we will look at more recent case law that illustrates neatly the shift described above.

8.3.1 The Procedural Guarantees against Decisions Refusing Entry and Expulsion Decisions in the Earlier Case Law: The Underlying Force of the Principle of Effective Judicial Protection

As indicated above, Directive 64/221⁴⁸ laid down a significantly lower level of procedural protection than the CRD in cases of refusals to entry or expulsion decisions against EU citizens and their families. Article 8 of Directive 64/221 provided that EU mobile citizens and their family members had the right to the ‘same legal remedies’ in relation to expulsion orders or denials of entry to a host Member State as were available to nationals of a host State in respect of acts of the administration. This implied the possibility that such remedies might either be unavailable or not be entirely effective in a particular situation. Article 9 of Directive 64/221 attempted to address some of the deficiencies in Article 8. Thus, it provided in Article 9(1) that: (a) where no right of appeal to a court of law were available, or (b) available only in respect of the legal validity of the decision or (c) where an appeal would not have suspensory effect, a person concerned by an expulsion decision could at least exercise their right to defence before a competent authority which was not the same as the authority that adopted the restrictive measures. The object of Article 9 of the Directive was, in the words of the Court, ‘to ensure a minimum procedural safeguard’⁴⁹ for persons affected in the three situations provided in Article 9(1).

On the one hand, these provisions were clearly imbued by the spirit of securing that those subject to restrictive measures should have access to a legal remedy. On the other, as we have just seen, they ultimately reflected access only to adequate legal remedies⁵⁰ rather than fully satisfying the requirements of the principle of effective judicial protection by guaranteeing both access to judicial redress and the right to an effective, and not just adequate, remedy. As Advocate Ruiz-Jarabo Colomer argued in his Opinion in ex parte Shingara,⁵¹ such limitations, while perhaps acceptable at the time when this early Directive was adopted, were soon no longer consistent with the parameters of the principle of effective judicial protection which began to be developed by the Court in its general body of case law and was later consolidated in Article 47 of the Charter.

It is therefore unsurprising that, while the wording of Articles 8 and 9 of Directive 64/221 remained unchanged until eventually superseded by the higher standards of protection ushered by Articles 30 and 31 CRD, the case law interpreting those provisions not only clarified their scope but also embodied a drive towards higher levels of procedural protection. Thus, cases like Royer⁵² and ex parte Shingara,⁵³ fostered an alignment of the case law within the specific framework of Directive 64/221 with the evolution of the general case law on national remedies to ensure the maximum latitude and effectiveness possible of the remedies provided within the somewhat restrictive parameters of the Directive. Those cases interpreted the meaning of the entitlement of persons subject to a restrictive measure to the ‘same legal remedies’ as nationals of the host State had in relation to restrictive measures adopted by the administration.

In Royer,⁵⁴ the Court held that a decision ordering the expulsion of an EU citizen or their family members could not be executed, except in duly justified cases of urgency, until the combined set of remedies provided in Articles 8 and 9 had been exhausted. In turn, in ex parte Shingara,⁵⁵ the Court took the view that the guarantees applicable to the three situations detailed in Article 9(1) in relation to expulsion decisions also applied to the application of Article 9(2) covering refusals to issue a first residence permit or ordering expulsion before the issue of a first permit.⁵⁶ This approach continued in ex parte Yiadom,⁵⁷ where the national authorities of a host Member State argued that the default procedural guarantees provided in Article 9(1) and (2) did not apply to a situation where an EU citizen had been granted temporary admission to a host Member State. They averred that this was outside the scope of Article 9(1) and (2), which literally covered expulsion decisions, those refusing the renewal of a residence permit, those refusing the issue of a first residence permit, and those ordering expulsion before the issue of a first residence permit. The Court, however, held that in the light of the general principles interpreting the Directive, an EU citizen who had been temporarily admitted to the territory of a Member State should be entitled to the procedural safeguards in Article 9.⁵⁸ While the Court did not explicitly invoke the principle of effective judicial protection in these cases and appeared to draw its interpretation from the principles emanating within the narrow confines of the Directive, it is clear that the spirit of that principle guided the conclusions reached.⁵⁹ By contrast, the Opinions of some Advocates General at the time were more vocal both in acknowledging the emergence and growing influence of the principle of effective judicial protection in the general body of case law and also in supporting the explicit extension of the full guarantees embodied in that principle to the restrictions of free movement contemplated in Directive 64/221.⁶⁰

In some of the earlier cases following the entry into force of the CRD, the principle of effective judicial protection continued to underline the interpretation followed by the Court, greatly facilitated by the higher level of procedural protection entrenched in Articles 30–33 CRD. Nonetheless, allusions to that principle still seemed to be mostly cautious and indirect. For instance, in some cases calling for the interpretation of the procedural safeguards attached to the legality of national administrative prohibitions on leaving the territory of Member States, the Court used Article 32 CRD and applied the traditional combination of the principles of procedural autonomy, effectiveness, and non-discrimination, thus consolidating a pattern of interpretation drawn within the narrow confines of the CRD itself.⁶¹ In a few cases, the right to an effective judicial remedy began to be expressly mentioned.⁶²

To sum up, a consideration of the historical case law under Directive 64/221 –which offered only a minimum standard of legislative procedural protection – and of the cases decided in the early years after the CRD was adopted, reveals the growing but still mostly implicit influence of the principle of effective judicial protection. Against that backdrop, and as we shall see in the next section, more recent cases have reflected an open shift towards the explicit priority of that principle in interpreting the procedural guarantees accorded to EU citizens and to their family members.

8.3.2 The Emergence of the Principle of Effective Judicial Protection as a Primary Interpretative Guide

The rise to prominence of the principle of effective judicial protection as primary interpretative tool in this area mirrors recent developments in other areas of EU law, where Article 47 of the Charter, either alone⁶³ or in conjunction with Article 19(1) TEU,⁶⁴ has taken centre stage in influencing the shape of national remedies.⁶⁵ In the context of the CRD, ZZ v Secretary of State for the Home Department⁶⁶ provides a clear example of the use of Article 47 of the Charter in this way. The case concerned the interpretation of Article 30(2) CRD, which stipulates that those affected by a decision restricting the right of entry or residence ‘must be informed, precisely and in full of the public policy, public security or public health grounds on which the decision taken in their case is based unless this is contrary to the interests of State security [emphasis added]’. On the facts of the case, an EU citizen, who had resided lawfully in the UK for fifteen years – and hence acquired the right of permanent residence in the UK⁶⁷ – was subject to an expulsion measure on grounds of public security, without having been informed of the grounds justifying this measure, either in detail or in summary form. This was because, in accordance with national law, the disclosure of this information was deemed to be contrary to the interests of State security. The national court considering the appeal against the exclusion order made a reference to the Court of Justice asking whether the principle of effective judicial protection required that the Union citizen should be at least informed in this situation of the essence of the grounds against him.

Although the national court referred to the principle of effective judicial protection ‘set out in Article 30(2)’ of the CRD,⁶⁸ the Court used Article 47 of the Charter instead as the primary interpretative source. This is significant because it enabled it to draw from a wider body of case law than that limited to a piecemeal interpretation of the provisions in the CRD. An insular and literal interpretation of the letter of Article 30(2) CRD would have probably justified the complete refusal to disclose the grounds for expulsion for reasons of State security. However, a longstanding line of case law of the Court set out that the right to an effective remedy included the right of the person concerned to know the reasons upon which a decision had been taken against them.⁶⁹ The Court approached the ZZ case in the light of this line of case law and weighed the interests of State security on the one hand and the right to an effective remedy of EU citizens on the other.

Ultimately, the balance struck by the Court emphasised the power of Article 47 of the Charter. The Court explained that this provision imposes a duty on the national court in these circumstances to ensure, first, that the refusal to disclose the information in full to the EU citizen concerned is strictly necessary and, second, that the EU citizen is, in any event, informed of the essence of the grounds justifying the expulsion while taking into account ‘the necessary confidentiality of the evidence’.⁷⁰ In other words, the Court firmly highlighted the importance of the rights of the defence even in cases where the interests of State security were at stake. The extent of the duty imposed on national courts to comply with those requirements cannot be underestimated. It reflects a high level of intrusion of the principle of effective judicial protection on decisions of national competent authorities either refusing entry or restricting the right to residence of mobile Union citizens and their families.

8.3.3 The Expansion of the Reach of the Principle of Effective Judicial Protection to Cover ‘Extended’ Family Members under the CRD

As seen in the previous section, the decision in ZZ⁷¹ highlighted the use of Article 47 of the Charter as the primary source to give effect to the principle of effective judicial protection when applied to the interpretation of the specific procedural guarantees in the CRD. The claimant in that case was an EU national married to a British national – at a time when the UK was still a Member State of the EU – and hence was entitled to the protection of the CRD both as a primary holder of the substantive rights and, derivatively, as a ‘core’ family member under the CRD. The decision, therefore, made it clear that the enhanced protection offered by Article 47 clearly extended both to EU nationals and to those family members in Article 2(2) CRD. The entitlement to the right to an effective remedy to family members under the CRD is also justified by Recital 31 to the Directive, which provides that the Directive ‘respects the fundamental rights and freedoms and observes the principles recognised in particular by the Charter of Fundamental Human Rights of the European Union’. It follows from this that ‘core’ family members are automatically included in that protection given their position as full beneficiaries of the CRD.

However, the issue of whether the same protection would be afforded to the ‘extended’ family members set out in Article 3(2) CRD, whose claim to the enjoyment of the substantive rights under the CRD is much less certain, remained unresolved. The decision in Banger⁷² shed light on that question. There, Ms Banger, a South African national, and her partner, a UK national, had lived in the Netherlands, where Ms Banger was issued with a residence permit. When the couple moved to the UK, the competent authorities declined to provide Ms Banger with a residence permit on the basis that the UK was her partner’s home Member State and that the domestic legislation transposing Article 3(2) CRD only applied to extended family members of Union citizens from other Member States. The national court made a preliminary reference to the Court of Justice that covered the interpretation of both substantive and procedural rights under the CRD.

On the substantive issues, the national court essentially asked whether the principles established by the ruling of the Court in Singh⁷³ or in the CRD itself could be understood to protect the position of extended family members of an EU citizen who having exercised their right to free movement in another Member State returns to their home Member State. The Court of Justice relied primarily on a teleological interpretation of Article 21(1) TFEU to derive an obligation on a Member State to facilitate the provision of residence permit for a third-country national who is the unregistered partner of an EU national returning to their home Member State.⁷⁴

On the procedural front, the national court raised the very important question of the scope of judicial protection required by EU law for ‘extended’ family members. This was a point not covered by the CRD. Under the law of England and Wales, Ms Banger did not have the right to appeal against the decision of the national competent authority, with judicial review being the only remedy available to her. Ms Banger contended that the system of judicial review under national law did not allow for a full review of the facts in question. By contrast, had she been a ‘core’ family member she would have had the right to appeal, with the opportunity of a fuller judicial scrutiny. In essence, the key issue was whether the judicial protection safeguards contained in Articles 15 and 31 CRD applied to ‘extended’ family members of the mobile EU citizen in the same manner as they applied to ‘core’ family members, which are the natural beneficiaries of the full protection of the CRD.

In his leading Opinion, Advocate General Bobek considered the complexion of the right to an effective judicial remedy for extended family members in the light of two converging interpretative sources. These were, first, the provisions of the CRD itself and, second, the requirements emanating from Article 47 of the Charter and from the classical remedial principles of effectiveness and non-discrimination.⁷⁵ In the application of the former, he acknowledged that a literal interpretation of Article 15 CRD meant that only ‘core’ family members would be clearly protected but that such textual interpretation was transparently contrary to the spirit of the CRD because the refusal of a residence card to extended family members could be construed as a ‘restriction to free movement rights of the Union citizen himself’.⁷⁶ However, it was the use of Article 47 of the Charter⁷⁷ that provided him with a solid platform to conclude that, even if the CRD did not explicitly apply the relevant procedural safeguards to extended family members, that provision required not only access to judicial redress but also a full judicial scrutiny of the broad discretion granted to Member States under Article 3(2) CRD. Advocate General Bobek concluded that it was ultimately for the national court to ascertain whether the national system of judicial review did satisfy those requirements.

The judgment of the Court, while terser in its reasoning than the Opinion of the Advocate General, reached the conclusion that the provisions of the CRD had to be interpreted in the light of Article 47 of the Charter and that this meant that a national court should be able to ascertain whether a decision refusing a residence permit to an extended family member is based on a sufficiently solid factual basis and is compliant with procedural safeguards, which would include the obligation of the national competent authority to undertake an extensive examination of the applicant’s personal circumstances and to justify any denial of entry or residence.⁷⁸

The decision in Banger thus demonstrated that ‘extended’ family members were entitled to the procedural protection offered by the CRD, a result that was achieved through the primary application of the principle of effective judicial protection enshrined in Article 47 of the Charter to the interpretation of Articles 31 and 15 CRD.

8.4 Conclusions

The principle of effective judicial protection, first recognised in the case law of the CJEU, acquired ultimate visibility by taking its place among the provisions of the EU Charter of Fundamental Rights which, by its own admission, aims to ‘strengthen the protection of fundamental rights’.⁷⁹ While this principle has remained intertwined with the traditional remedial principles of national procedural autonomy, effectiveness, and non-discrimination,⁸⁰ the use of Article 47 of the Charter as an interpretative platform in cases concerning the legality of national procedural rules has become commonplace in the case law on national remedies. Of course, this seems a natural evolutionary step considering the proclamation of the Charter as a solemn political declaration at the time of the Treaty of Nice and its subsequent entry into force with the Treaty of Lisbon. However, the direct allusion to Article 47 of the Charter has represented much more than a cosmetic change. This is because it has yielded a body of case law that has bolstered the potential of this principle, offering a broader range of protection to those whose substantive rights under EU law might have been infringed.⁸¹

This chapter has sought to argue that the approach in the general case law on national remedies has recently found a reflection in the specific appraisal by the CJEU of the procedural rights of family members of mobile EU citizens under the CRD. Both the CRD and the measures preceding it have taken as a starting point for the entitlement to free movement rights – and for the assessment of the legality of any restrictions to them – the notion that family members are not entities on their own right but merely recipients of derivative rights. Against that unpromising backdrop, the case law of the CJEU has neatly illustrated both a teleological approach to the configuration of the substantive rights to free movement of family members⁸² and a rise to prominence of the principle of effective judicial protection as the primary interpretative tool shaping the procedural guarantees available in cases where the rights to entry and residence have been restricted.

The case law interpreting the minimum standard of procedural protection offered by Directive 64/221, as well as the early case law considering the more generous ones contained in the CRD, mostly reflected an approach wedded to the insular confines of those pieces of legislation which was progressively infused by the need to ensure the maximum effectiveness of the available remedies. However, cases like ZZ⁸³ and Banger⁸⁴ exemplified a much bolder leap by using Article 47 of the Charter to deploy the full force of the principle of effective judicial protection in cases where even the more generous parameters of the CRD might not have allowed for the protection sought by the EU citizen and their family members. This is significant on three counts. First, because it means that the case law in this area is no longer out of step with the evolution of the general body of case law on national remedies given that it confirms a shift towards the primary interpretative role of Article 47 of the Charter in securing the right to an effective remedy under EU Law. Second, because, in this context, the force of Article 47 of the Charter is applied to the construction of procedural guarantees articulated by EU secondary legislation. Until now, much of the case law illustrating the potent effect of that provision has referred to scenarios where the effectiveness of national procedural rules has been at stake.⁸⁵ This move thus neatly reflects the two-pronged effect of Article 47 on both national and EU-derived remedies. Finally, and more importantly for the purposes of this collection, the approach of the Court in this area does much to address, at the level of enforcement of EU rights, the uncertain position of ‘core’ and, particularly, ‘extended’ family members under the CRD. Such a trend should be welcomed so that the commitment of the EU to the rights to free movement and family life is fully realised.