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Deadlines: Motivation departement: 24 June 2019 Written observations: 10 September 2019 (ultimate deadline)
Keywords : migration; free movement persons
- Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice (SCA);
- Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC;
Facts of the case:
Appellant (MCC) is a Canadian national. She married a Norwegian national (CAG, who resided in Norway) in June 2012. MCC applied for family reunification with CAG under Chapter 6 of the Immigration Act, but her application was refused by decision of the Directorate of Immigration. The Immigration Appeal Board upheld the refusal on 12.12.2012. On 05.06.2014 MCC applied for a right of residence as a family member of an EEA citizen, see Chapter 13 of the Immigration Act. She stated that she had lived with her spouse in Sweden from December 2012 until January 2014. The Directorate of Immigration refused the application on 23.09.2014 and at the same time adopted a decision to reject MCC from Norway on the ground that she lacked the necessary permit under the Immigration Act. The Immigration Appeals Board upheld that decision on 23.12.2016, as, in its opinion, MCC did not meet the conditions for a right of residence under the EEA rules. Nor did the Immigration Appeals Board find it disproportionate for the purposes of the Immigration Act to reject MCC. Following an application for reversal of the decision, on 19.01.2017 the Immigration Appeals Board adopted a decision not to reverse its earlier decision. That decision was upheld by decision of 25.01.2017, by way of reply to notice of legal action. The question in the case is whether Directive 2004/38/EC, through an application by analogy, can give family members a derived right of residence upon return to the EEA national’s home State in cases such as the present one.
Questions with a request for an Advisory Opinion:
1. In the light of the EU Court of Justice’s recent case law in which the view of the Grand Chamber in its judgment of 12 March 2014 in Case C-456/12 O. and B. concerning the derived right of residence has been maintained, and on the basis of the homogeneity principle, is Article 7(1)(b) of Directive 2004/38/EC, read in conjunction with its Article 7(2) , applicable by analogy to a situation where an EEA citizen returns to the home State together with a family member?
2. What does the requirement of ‘continuous’ residence under the Directive as expressed in paragraph 80 of the EFTA Court’s judgment of 26 July 2016 in Case E-28/15 entail? It would be especially useful if the EFTA Court could comment on:
a) whether and, if so, to what extent there can be interruptions in residence, and
b) whether the cause of a possible interruption – such as its being for work-related reasons – may be of import for the assessment of whether the residence is continuous within the meaning of the Directive.
3. What is required by the condition that the EEA citizen’s residence in the host State must have been ‘genuine such as to enable family life in that State’, as expressed in, inter alia, paragraph 80 of the EFTA Court’s judgment of 26 July 2016 in Case E-28/15,; paragraph 51 of the judgment of the EU Court of Justice of 12 March 2014 in Case C-456/12, O. and B., read in conjunction with paragraphs 56 and 57 thereof; and paragraphs 24 and 26 of the latter Court’s judgment of 5 June 2018 in Case C-673/16, and read also in the light of the abuse of rights provision in Article 35 of the Directive?
Cited (recent) case-law: E-28/15; C-456/12 O. and B; C-457/12 S. and G; C-133/15; C-673/16; C-89/17;
Policy area: JenV-dmb