Firstly , Very very very few on Stamp 2's got upgraded, but some did. (Stamp 2 is excluded), its a minor pointMorrisj wrote:First of all,most people under stamp1,2,3 has upgraded,secondly most cases were withdrawn from the court and they have been granted residency(those in the state) again those citizenship granted this year,would still pending for ages if Shatter didnt come in.Dermot Ahern would have done worse than this,you know that well and to my understanding,you like the Dermot's way.Dereci Judgment didnot mention minor children or parents,it was about non national joining Adult Union citizen,yet Mr dereci won by marria
I have acknowledged they did get upgraded, so why repeat what I have said?
Secondly,
Most cases have NOT being withdrawn from the court, as a matter of fact! There are quite a number still waiting for the December list, from what I hear.
There are threads on this site still asking about when they will get a decision, despite being on all fours with Zambrano
Thirdly
As for the citizenship, no, you are wrong. Decisions on most of them had being decided and communicated to the Secretary and Minister before Shatter came in. They were simply waiting for a scribble from the Minister. Nice try sunny boy.
Demott Aherne is what was wrong with politics, trust me, he was a gobshite in every way.
Fourthly
Here is what the Courts were asked in Dercei and Co
a) Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country - whose spouse and minor children are Union citizens - residence in the Member State of residence of the spouse and children, who are nationals of that Member State, even in the case where those Union citizens are not dependent on the national of a non-member country for their subsistence? (Dereci case)
(b) Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country - whose spouse is a Union citizen - residence in the Member State of residence of that spouse, who is a national of that Member State, even in the case where that Union citizen is not dependent on the national of a non-member country for his or her subsistence? (Heiml and Maduike cases)
(c) Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country - who has reached the age of majority and whose mother is a Union citizen - residence in the Member State of residence of the mother, who is a national of that Member State, even in the case where it is not the Union citizen who is dependent on the national of a non-member country for her subsistence but rather that national of a non-member country who is dependent on the Union citizen for his subsistence? (Kokollari case)
(d) Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country - who has reached the age of majority and whose father is a Union citizen - residence in the Member State of residence of the father, who is a national of that Member State, even in the case where it is not the Union citizen who is dependent on the national of a non-member country for his subsistence but rather the national of a non-member country who receives subsistence support from the Union citizen? (Stevic case)
If any of the questions under 1 is to be answered in the affirmative:
Does the obligation on the Member States under Article 20 TFEU to grant residence to nationals of non-member countries relate to a right of residence which follows directly from European Union law, or is it sufficient that the Member State grants the right of residence to the national of a non-member country on the basis of its law establishing such a right?
(a) If, according to the answer to Question 2, a right of residence exists by virtue of European Union law:
Under what conditions, exceptionally, does the right of residence which follows from European Union law not exist, or under what conditions may the national of a non-member country be deprived of the right of residence?
(b) If, according to the answer to Question 2, it should be sufficient for the national of a non-member country to be granted the right of residence on the basis of the law of the Member State concerned which establishes such a right:
Under what conditions may the national of a non-member country be denied the right of residence, notwithstanding an obligation in principle on the Member State to enable that person to acquire residence?
In the event that Article 20 TFEU does not prevent a national of a non-member country, as in the situation of Mr Dereci, from being denied residence in the Member State:
Does Article 13 of Decision No 1/80 of 19 September 1980 on the development of the Association, drawn up by of the Association Council set up by the Agreement establishing an Association between the European Economic Community and Turkey, or Article 41 1 of the Additional Protocol, signed in Brussels on 23 November 1970 and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972, which, according to Article 62 thereof, forms an integral part of the Agreement establishing an Association between the European Economic Community and Turkey, preclude, in a case such as that of Mr Dereci, the subjection of the initial entry of a Turkish national to stricter national rules than those which previously applied to the initial entry of Turkish nationals, even though those national provisions which had facilitated the initial entry did not enter into force until after the date on which the aforementioned provisions concerning the association with Turkey entered into force in the Member State in question?
The case lost on EU law, law you lot rely on. It won on a separate provision, under a Treaty between the EU and Turkey, a Treaty that has no relevance to you lot. But it did clarify EU law since Zambrano
Facts :
Mr Dereci, who is a Turkish national, entered Austria illegally and married an Austrian national by whom he had three children who are also Austrian nationals and who are still minors. Mr Dereci currently resides with his family in Austria. Mr Maduike, a Nigerian national, also entered Austria illegally and married an Austrian national with whom he currently resides in Austria.
By contrast, Mrs Heiml, a Sri Lankan national, married an Austrian national before entering Austria legally where she currently lives with her husband, despite the subsequent expiry of her residence permit.
The most relevant answer for many people was (and taking into account children, but realising that its the parent's who determine the child's life),
The first question
37 The first question must be understood as seeking to determine, in essence, whether European Union law and, in particular, the provisions concerning citizenship of the Union, must be interpreted as precluding a Member State from refusing to grant residence within its territory to a third country national, although that third country national wishes to reside with a family member who is a European Union citizen, resident in that Member State and a national of that Member State, who has never exercised his right to free movement and who is not maintained by that third country national.
Observations submitted to the Court
38 The Austrian, Danish, German, Irish, Netherlands, Polish and United Kingdom Governments and the European Commission consider that the provisions of European Union law concerning citizenship of the Union do not preclude a Member State from refusing to grant a right of residence to a third country national in situations such as those in the main proceedings.
39 According to those governments and to the Commission, firstly, Directive 2004/38 does not apply to the disputes in the main proceedings, given that the Union citizens concerned have not exercised their right to free movement and, secondly, the provisions of the TFEU concerning citizenship of the Union do not apply either in so far as the disputes concern purely internal situations that possess no connecting factors to European Union law.
40 In essence, they consider that the principles laid down in Ruiz Zambrano apply to very exceptional situations in which the application of a national measure would lead to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of the status of citizen of the Union. In this case, the events which gave rise to the disputes in the main proceedings differ substantially from those which gave rise to the aforementioned judgment in so far as the Union citizens concerned were not at risk of having to leave the territory of the Union and thus of being denied the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union. Similarly, according to the Commission, neither is there a barrier to the exercise of the right conferred on Union citizens to freedom of movement and residence within the territory of the Member States.
41 Mr Dereci, on the other hand, considers that European Union law must be interpreted as precluding a Member State from refusing to grant residence within its territory to a third country national, although that national wishes to reside with his wife and three children who are European Union citizens resident in that Member State and who are nationals of that Member State.
42 According to Mr Dereci, the question whether there is a cross-border situation or not is irrelevant. In that regard, Article 20 TFEU should be interpreted as meaning that the question to be taken into consideration is whether the Union citizen is denied the genuine enjoyment of the substance of the rights conferred by virtue of his status. This is the case for Mr Dereci’s children in so far as they are maintained by him, and the effectiveness of that maintenance is likely to be compromised if they were subject to expulsion from Austria.
43 Lastly, the Greek Government considers that developments in the case-law of the Court impose an obligation to be guided, by analogy, by the provisions of European Union law, in particular by the provisions of Directive 2004/38, and therefore to grant residence to the applicants in the main proceedings, provided the following conditions are satisfied. First of all, the situation of the Union citizens who have not exercised their right to free movement should be similar to that of those who have exercised that same right, which would mean, in this case, that a national and his family members must satisfy the conditions laid down by that directive. Second, the national measures should entail a significant infringement of the right of free movement and residence. Third, national law should not provide at least equivalent protection to the party concerned.
The Court’s reply
– Applicability of Directives 2003/86 and 2004/38
44 It should be noted at the outset that the applicants in the main proceedings are all third country nationals who have applied for the right of residence in a Member State in order to live with their family members who are European Union citizens and who have not exercised their right to free movement within the territory of the Member States.
45 In order to answer the first question, as reformulated by the Court, it is necessary to analyse at the outset whether Directives 2003/86 and 2004/38 are applicable to the applicants in the main proceedings.
46 So far as concerns, first of all, Directive 2003/86, it must be stated that, under Article 1, its purpose is to determine the conditions for the exercise of the right to family reunification by third country nationals residing lawfully in the territory of the Member States.
47 However, in accordance with Article 3(3) of Directive 2003/86, that directive is not to apply to members of the family of a Union citizen.
48 In so far as the disputes in the main proceedings concern Union citizens who reside in a Member State and their family members who are third country nationals who wish to enter and to reside in that Member State for the purposes of living as a family with those citizens, it must be held that Directive 2006/38 is not applicable to the applicants in the main proceedings.
49 Furthermore, as the Commission has correctly observed, although the proposal for a Council Directive on the right to family reunification ((2000/C 116 E/15), COM(1999)638 final - 1999/0258 (CNS)), submitted by the Commission on 11 January 2000 (OJ C 116 E, p. 66), included within its scope Union citizens who have not exercised their right to free movement, that inclusion was deleted in the course of the legislative process leading to Directive 2003/86.
50 Second, the Court has already had occasion to point out that Directive 2004/38 aims to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States that is conferred directly on Union citizens by the Treaty and that it aims in particular to strengthen that right (see Case C‑127/08 Metock and Others [2008] ECR I‑6241, paragraphs 82 and 59, and Case C‑434/09 McCarthy [2011] ECR I‑0000, paragraph 28).
51 As is apparent from paragraphs 24 to 26 of the present judgment, Mrs Heiml, Mr Dereci and Mr Maduike, as spouses of Union citizens, fall within the definition of ‘family member’ in point 2 of Article 2 of Directive 2004/38. Similarly, Mr Kokollari and Mrs Stevic, as direct descendants over the age of 21 of Union citizens, are covered by that definition provided that the requirement of being dependent on those citizens is satisfied, pursuant to point 2(c) of Article 2 of that Directive.
52 However, as the referring court observed, Directive 2004/38 does not apply in situations such as those at issue in the main proceedings.
53 Indeed, as provided for in Article 3(1) of Directive 2004/38, that directive applies to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 of the directive who accompany them or join them in that Member State (see Ruiz Zambrano, paragraph 39).
54 The Court has already had occasion to state that, in accordance with a literal, teleological and contextual interpretation of that provision, a Union citizen, who has never exercised his right of free movement and has always resided in a Member State of which he is a national, is not covered by the concept of ‘beneficiary’ for the purposes of Article 3(1) of Directive 2004/38, so that that directive is not applicable to him (McCarthy, paragraphs 31 and 39).
55 Similarly, it has been held that, in so far as a Union citizen is not covered by the concept of ‘beneficiary’ for the purposes of Article 3(1) of Directive 2004/38, their family member is not covered by that concept either, given that the rights conferred by that directive on the family members of a beneficiary of that directive are not autonomous rights of those family members, but derived rights, acquired through their status as members of the beneficiary’s family (see, so far as concerns spouses, McCarthy, paragraph 42, and the case-law cited).
56 Indeed, not all third country nationals derive rights of entry into and residence in a Member State from Directive 2004/38, but only those who are family members, within the meaning of point 2 of Article 2 of that directive, of a Union citizen who 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 (Metock and Others, paragraph 73).
57 In the present case, as the Union citizens concerned have never exercised their right to free movement and have always resided in a Member State of which they are nationals, it must be held that they are not covered by the concept ‘beneficiary’ for the purposes of Article 3(1) of Directive 2004/38, so that that directive is neither applicable to them nor to their family members.
58 It follows that Directives 2003/86 and 2004/38 are not applicable to third country nationals who apply for the right of residence in order to join their European Union citizen family members who have never exercised their right to free movement and who have always resided in the Member State of which they are nationals.
– Applicability of the Treaty provisions concerning citizenship of the Union
59 Notwithstanding the inapplicability to the disputes in the main proceedings of Directives 2003/86 and 2004/38, it is necessary to consider whether the Union citizens concerned by those disputes may rely on the provisions of the Treaty concerning citizenship of the Union.
60 In that regard, it must be borne in mind that the Treaty rules governing freedom of movement for persons and the measures adopted to implement them cannot be applied to situations which have no factor linking them with any of the situations governed by European Union law and which are confined in all relevant respects within a single Member State (see, to that effect, Case C‑212/06 Government of the French Community and Walloon Government [2008] ECR I‑1683, paragraph 33; Metock and Others, paragraph 77 and, McCarthy, paragraph 45).
61 However, the situation of a Union citizen who, like each of the citizens who are family members of the applicants in the main proceedings, has not made use of the right to freedom of movement cannot, for that reason alone, be assimilated to a purely internal situation (see Case C‑403/03 Schempp [2005] ECR I‑6421, paragraph 22, and McCarthy, paragraph 46).
62 Indeed, the Court has stated several times that citizenship of the Union is intended to be the fundamental status of nationals of the Member States (see Ruiz Zambrano, paragraph 41, and the case-law cited).
63 As nationals of a Member State, family members of the applicants in the main proceedings enjoy the status of Union citizens under Article 20(1) TFEU and may therefore rely on the rights pertaining to that status, including against their Member State of origin (see McCarthy, paragraph 48).
64 On this basis, the Court has held that Article 20 TFEU precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status (see Ruiz Zambrano, paragraph 42).
65 Indeed, in the case leading to that judgment, the question arose as to whether a refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside and a refusal to grant such a person a work permit have such an effect. The Court considered in particular that such a refusal would lead to a situation where those children, who are citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. In those circumstances, those citizens of the Union would, in fact, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union (see Ruiz Zambrano, paragraphs 43 and 44).
66 It follows that the criterion relating to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of European Union citizen status refers to situations in which the Union citizen has, in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole.
67 That criterion is specific in character inasmuch as it relates to situations in which, although subordinate legislation on the right of residence of third country nationals is not applicable, a right of residence may not, exceptionally, be refused to a third country national, who is a family member of a Member State national, as the effectiveness of Union citizenship enjoyed by that national would otherwise be undermined.
68 Consequently, the mere fact that it might appear desirable to a national of a Member State, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a Member State to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted.
69 That finding is, admittedly, without prejudice to the question whether, on the basis of other criteria, inter alia, by virtue of the right to the protection of family life, a right of residence cannot be refused. However, that question must be tackled in the framework of the provisions on the protection of fundamental rights which are applicable in each case.
– The right to respect for private and family life
70 As a preliminary point, it must be observed that in so far as Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’), concerning respect for private and family life, contains rights which correspond to rights guaranteed by Article 8(1) of the ECHR, the meaning and scope of Article 7 of the Charter are to be the same as those laid down by Article 8(1) of the ECHR, as interpreted by the case-law of the European Court of Human Rights (Case C‑400/10 PPU McB. [2010] ECR I-0000, paragraph 53).
71 However, it must be borne in mind that the provisions of the Charter are, according to Article 51(1) thereof, addressed to the Member States only when they are implementing European Union law. Under Article 51(2), the Charter does not extend the field of application of European Union law beyond the powers of the Union, and it does not establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties. Accordingly, the Court is called upon to interpret, in the light of the Charter, the law of the European Union within the limits of the powers conferred on it (McB., paragraph 51, see also Joined Cases C-483/09 and C-1/10 Gueye and Salmerón Sánchez [2011] ECR I‑0000, paragraph 69).
72 Thus, in the present case, if the referring court considers, in the light of the circumstances of the disputes in the main proceedings, that the situation of the applicants in the main proceedings is covered by European Union law, it must examine whether the refusal of their right of residence undermines the right to respect for private and family life provided for in Article 7 of the Charter. On the other hand, if it takes the view that that situation is not covered by European Union law, it must undertake that examination in the light of Article 8(1) of the ECHR.
73 All the Member States are, after all, parties to the ECHR which enshrines the right to respect for private and family life in Article 8.
74 In the light of the foregoing observations the answer to the first question is that European Union law and, in particular, its provisions on citizenship of the Union, must be interpreted as meaning that it does not preclude a Member State from refusing to allow a third country national to reside on its territory, where that third country national wishes to reside with a member of his family who is a citizen of the Union residing in the Member State of which he has nationality, who has never exercised his right to freedom of movement, provided that such refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union, which is a matter for the referring court to verify.
Mr Kokollari, who entered Austria legally at the age of two with his parents who possessed Yugoslav nationality at the time, is 29 years old and states that he is maintained by his mother who is now an Austrian national. He currently resides in Austria. Mrs Stevic, a Serbian national, is 52 years old and has applied for family reunification with her father who has resided in Austria for many years and who obtained Austrian nationality in 2007. She has regularly received monthly support from her father and she claims that he would continue to support her if she resided in Austria. Mrs Stevic currently resides in Serbia with her husband and their three adult children.