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Summary Tutorial 3 - Free movement of persons
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Tutorial European Union Law: Substantive 2016
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Tutorial 3 - Free movement of personsIssue 1
She wants to move so you need a trigger so there is a wholly internal situation. There is no
here, so in principle Ireland can impose it. Are there exceptions? Yes. (Garcia Avello?
answer student but no confirmation whether this was good) Zambrano, Dereci.
First check crossborder element, there isnt so see if there is any way to go around it. A good
way to do is is to see if there are children involved as they need a caretaker. Adults cannot
trigger the EU rights or at least you should double-check. Ymeraga case: wholly internal but
TCN and EU rights, the EU citizen can therefore not enjoy it, then the internal situation falls
away. If the principle is the same and you didn’t mention Ymeraga (but fe Dereci), then that
is okay too.
Issue 2
Circumventing the irish procedure by moving to france. Then the directive triggers, so if they
only stay 3 months then there is no problem. Principle right of free movement and EU citizen
and TCN who is family member can freely move. O&B case: genuine residence, is living a
few weeks a year a genuine residence? It is a. genuine residence and b. strengthen/create
the family life. Sync nine mungh, alley: the TCN can be the source of money. You need to
have a genuine situation but you cannot cirumvent it. Safest answer: no right to return
because it is only an internship and after it they don’t have to , what can they do to make the
link more genuine? Establish family life from O&B AND argue that there is a genuine link!!. If
after the internship he gets a job so if the internship was a training after which he can get a
job, then it is fine but you have to argue that it is.
Here you need to extract the principle: it is genuine, argue up to you. Then argue the three
months. Favor the genuine over a period of time named in the case. Most important is that
you extract the principle. Also use as much case law as possible!
Issue 3
Michael is about to be thrown out of the Netherlands, and the diagram comes in handy here.
First go to the measure, which is expulsion. Then, in the diagram, you see that he is
standing firstly in the 5-10 years (so fourth box), but cases Onuekwere and MG say that the
stay in prison is not legal residing and that it falls outside of article 7. Onuekwere tells us that
time in prison doesn’t count, so he doesn’t have permanent residence. This would put him in
the second box. Art 28 does not apply as no permanent residence because the years in
prison don’t count. Then, you check 27 (2) so check if he is sufficiently serious threat to
society. Argue nature of the crime, visavis the measure (expulsion). Make sure that you
mention something about proportionality!! So whether the measure is or is not proportionate.
What is public security? Tsakouridis case, so public security when there is danger to the
public must be balanced with the level of integration and duration of residence and
seriousness of offense. No strong link with the Netherlands and serious crime, so likely to be
expelled. Ties are not that strong, perhaps a threat to the public as such would probably be
proportionate. PI: nature of the crime is so serious, a way to broaden public security. So
when you’re arguing on public security, remember that its something that concerns the
public at stake but it was broadened by the court in the PI case, can also be more narrow but
it depends on the seriousness of the crime. Go back to 27 (2) as it is a general clause and
then you go back to proportionality which is really important! Argue and cite the cases in
footnotes. Fe: all time in prison would be counted, to michael this provision is applicable
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