Yunying Jia v Migrationsverket – Court of Justice of the European Communities

Extract

What governs the first entrance to the territory of a member state by a third country national who is a family-member of a European citizen who has migrated to that member state: (secondary) Community law or national law? This question, of the utmost constitutional importance as it regards the power to decide on the entrance of foreigners on national territory, one of the pearls in the crown of traditional national sovereignty, was facing the Court of Justice of the European Communities in the case of Yunying Jia v. Migrationsverket. Earlier the Court had sent out different signals. Now, in the long-awaited and remarkably short full Court decision of 9 January 2007, the Court carefully manoeuvred between Scylla (the member states are in full control) and Charybdis (Community law decides all): a member state is not required to make the grant of a residence permit to a third country national subject to the condition of lawful residence in a member state – but it apparently may do so. It is quite unlikely that this judgment once and for all settles the question.