rosebead wrote:Case C‑456/12 (Case O & B):
http://eur-lex.europa.eu/LexUriServ/Lex ... 56:EN:HTML
And Case C‑457/12 (Case S & G):
http://eur-lex.europa.eu/LexUriServ/Lex ... 57:EN:HTML
My initial take on it is that it's probably not the best result for frontier workers (Cases S & G), in that their Member State of origin retains the right to decide whether frontier workers can keep their family members with them in their country of origin. This would be based upon whether that Member State THINKS the frontier worker would be deterred from exercising his treaty rights if his family members were prevented from residing with him. Frontier workers have not been definitively given family reunification rights by the ECJ.
As regards to those doing Surinder Singh under the new 'centre of life' rules, my take on Cases O & B is that it's ok news for returning citizens, in that their rights to family reunification should not be assessed under criteria more harsh than those for EEA nationals and family reunification in the host country. So if you conform to the conditions of Article 7 under Directive 2004/38 (also Article 16), that could be one criterion met for a right of return with family members. Paragraph 50 seems to back this up:
So far as concerns the conditions for granting, when a Union citizen returns to the Member State of which he is a national, a derived right of residence, based on Article 21(1) TFEU, to a third‑country national who is a family member of that Union citizen with whom that citizen has resided, solely by virtue of his being a Union citizen, in the host Member State, those conditions should not, in principle, be more strict than those provided for by Directive 2004/38 for the grant of such a right of residence to a third‑country national who is a family member of a Union citizen in a case where that citizen has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national. Even though Directive 2004/38 does not cover such a return, it should be applied by analogy to the conditions for the residence of a Union citizen in a Member State other than that of which he is a national, given that in both cases it is the Union citizen who is the sponsor for the grant of a derived right of residence to a third‑country national who is a member of his family.
To trigger the right of return with your family members, residence in the host country has to be "sufficiently genuine so as to enable that citizen to create or strengthen family life in that Member State." However, "residence in the host Member State pursuant to and in conformity with the conditions set out in Article 7(1) of Directive 2004/38 is, in principle, evidence of settling there and therefore of the Union citizen’s genuine residence in the host Member State and goes hand in hand with creating and strengthening family life in that Member State."
I don't like the sound of paragraph 58 though:
It should be added that the scope of Union law cannot be extended to cover abuses (see, to that effect, Case C‑110/99 Emsland‑Stärke [2000] ECR I‑11569, paragraph 51, and Case C‑303/08 Bozkurt [2010] ECR I‑13445, paragraph 47). Proof of such an abuse requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the European Union rules, the purpose of those rules has not been achieved, and, secondly, a subjective element consisting in the intention to obtain an advantage from the European Union rules by artificially creating the conditions laid down for obtaining it (Case C‑364/10 Hungary v Slovakia [2012] ECR, paragraph 58).
Is the above implying that using the Surinder Singh route to avoid national immigration laws is an "abuse" (if it can be proven) and so applications could be disregarded? I thought Akrich established that motive is irrelevant as long as the economic activity has been genuine and effective.
The other thing which doesn't appear favourable is that the Union citizen has to "create or strengthen a family life with a third‑country national during genuine residence" in the host country. The ECJ judgement doesn't define what is involved in "creating or strengthening a family life." It's very open to interpretation, which no doubt Member States like the UK and Denmark will interpret very narrowly.