Union citizenship rights and the division of competence in the field of immigration: An analysis of the case law from the CJEU on the right to family reunification for Union citizens
Independent thesis Advanced level (professional degree), 20 credits / 30 HE creditsStudent thesis
In the early days of the European Union, the right to free movement for economically active Member State nationals was recognised as a necessity when creating a common market between the Member States. The right to family reunification was introduced as a measure to encourage Member State nationals to move, as they would be allowed to bring their family with them. The rationale behind family reunification was thus the enabling of the common economic market. However, after the introduction of the Union citizenship, the rights conferred on Union citizens expanded through the case law from the CJEU and was recognised as the fundamental status of the nationals of the Member States. A cross-border requirement was established and the economic consideration behind the right to free movement was abandoned. Instead, all Union citizens who could present a sufficient link with Union law, without there being any connection to the internal market, were considered to fall within the scope of Union law. Through these developments, the right to family reunification was detached from the economic rationale and became an automatic right to family life in cases where Union law is applicable. Nevertheless, a Union citizen whose situation cannot present a sufficient link with Union law is left outside of its scope and, consequently, subject to national law. When national law is stricter than Union law, the Union citizen becomes subject to reverse discrimination. In regards to the right to family reunification, reverse discrimination occurs when the immigration legislation of the Member State is more restrictive than Union law. In doctrine it has been argued that, in the light of these differences, the CJEU should prohibit reverse discrimination and extend Union fundamental rights to all Union citizens, regardless of whether there is a link with Union law. With the Courts ruling in Zambrano, it was argued that the CJEU had confirmed that Union fundamental rights constitute part of Union citizenship rights. However, in the subsequent cases the Court took a step back and the scope of Union law seems narrower now than before the ruling in Zambrano. What could have been a major development for Union citizenship rights thus seem to have been reduced to a peripheral change. In regards to the division of competence between the Union and the Member States in the field of immigration, the abandonment of the economic criteria described above has resulted in a limited discretion of the Member States. However, through the more recent developments, the pendulum seems to have swung back.
Place, publisher, year, edition, pages
2013. , 59 p.
Union citizenship, EU law, fundamental rights
IdentifiersURN: urn:nbn:se:uu:diva-205436OAI: oai:DiVA.org:uu-205436DiVA: diva2:641476
Bergström, Carl Fredrik