Article 3(2) - any wriggle room?

[Ben]

2. Without prejudice to any right to free movement and residence the persons concerned may have
in their own right, the host Member State shall, in accordance with its national legislation, facilitate
entry and residence for the following persons:
(a) any other family members, irrespective of their nationality, not falling under the definition in
point 2 of Article 2 who, in the country from which they have come, are dependants or
members of the household of the Union citizen having the primary right of residence, or
where serious health grounds strictly require the personal care of the family member by the
Union citizen;
(b) the partner with whom the Union citizen has a durable relationship, duly attested.
The host Member State shall undertake an extensive examination of the personal circumstances and
shall justify any denial of entry or residence to these people.

I've always been troubled by this line:

in accordance with its national legislation

Is there wriggle room there? Can Member States turn round and say "sorry, we have no national legislation to facilitate entry and residence to such persons"?

[Wanderer]

They do though, don't they though?

Witness EEA unmarried partners where the UK uses UK rules for 'durable relationship' to mean 'two years'!

[Ben]

Unmarried partners maybe, but certainly not any other family members, irrespective of their nationality, who, in the country from which they have come, are members of the household of the Union (or "national") citizen.

[Wanderer]

Did I read about cases where family members who entered the UK illegally weren't given the right to regularise their stay from within the UK?

I dunno if that's changed now..

[Obie]

Hi Ben,

I think they have a degree of discretion on how it is implemented.

They have to implement it in line with the directive's requirement.

The UK for example, says the Article 3 (2) family member should have lived lawfully in another member state. They have not changed that requirement inspite of the Metock ruling.

The Irish authority demand that members of the Household provide proof of dependancy even though, they say differently on their website, and the directive itself contradicts that.

However there is a window of opportunity for appeal if one feels that the fundemental requirements of the directive was not applied in their case.

I do think it could be made more explicit.

[Ben]

They have to implement it in line with the directive's requirement.

The Directive says - "the host Member State shall, in accordance with its national legislation". My point is, what if there is no appropriate national legislation in existence?

The Irish authority demand that members of the Household provide proof of dependancy

Why would you feel the Irish Department of Justice require those falling under the member of the household category to be also dependant on the EU national? In my personal experience, this has never been the case.

Even Ireland's implementation of the Directive doesn't make this demand:

Interpretation
2. (1) In these Regulations -
..
“permitted family memberâ€

[Obie]

They requested evidence of dependency from my older brother, who was living in the same household as me and my sister in the UK.

I suspect if there is no national legislation in place, then the directive will have to be implemented in its written form. This is evident in countries who have failed to meet the deadline.

What i think they mean by national legislation, is the national legislation they used to transpose the directive into national law. Like the 2006 Regulation that Ireland used to transpose directive 2004/38C into law.

In that process, they are allowed to add additional requirement for article 3 (2) family members. However they have an obligation to facilitate their entry and residence.

I hope i make sense, because i myself get baffled by this sometimes.

I am open to clarification if i am wrong.

[Ben]

What i think they mean by national legislation, is the national legislation they used to transpose the directive into national law. Like the 2006 Regulation that Ireland used to transpose directive 2004/38C into law.

Yes, I think you might be right there, Obie.

In which case, in the case of Ireland anyway, this is an example of a Member State's implementation of the Directive being less ambiguous than the Directive itself. After all, Ireland's Statutory Instrument 656 of 2006 is perfectly clear (see my previous post for relevant quotes).

What is not obvious, to me anyway, is why the Directive feels it necessary, in Article 3(2) only, to require that the host Member State shall do something specifically in accordance with its national legislation. Other areas of the Directive require the host Member State to do something, but it is not stipulated, in any other area, that it must be done in accordance with its national legislation. My understanding is that the point of the Directive, in fact - any EU directive, is to provide instruction to the Members States to transpose its contents in to national legislation.

See what I mean?

[Obie]

What is not obvious, to me anyway, is why the Directive feels it necessary, in Article 3(2) only, to require that the host Member State shall do something specifically in accordance with its national legislation. Other areas of the Directive require the host Member State to do something, but it is not stipulated, in any other area, that it must be done in accordance with its national legislation. My understanding is that the point of the Directive, in fact - any EU directive, is to provide instruction to the Members States to transpose its contents in to national legislation.

See what I mean?

Ben i wholeheartedly admire your probing or investigative skills and abilities.

My take on this, is that the directive deliberately left that area vague, in order to give member state some degree of control, or discretion on how they deal with cases involving Article 3 (2) family member.

By stating" in accordance with their national legislation" they gave them a wide area of maneuver to refuse people without justification.

The people i think will suffer most are dependent who had never lived in the same household as the EU National.

This means they can request any phoney documentation they deem fit, whereas with the Article 2 family member, there are clearly set criteria on, which documents are required and what they are suppose to prove.

[Directive/2004/38/EC]

I am not sure exactly the reason they did this.

I have a bit of a discussion at http://eumovement.wordpress.com/2008/04 ... ficiaries/ about who is covered.

Also the original DOJ press release is now on http://www.progressivedemocrats.ie/press_room/1783/ This is effectively about gay/lesbian registered partnerships, of which there is nothing in Irish legislation.

As Irish legislation does not treat registered partnerships as equivalent to marriage Ireland is not be obliged to recognise registered partners as family members. However, Ireland is obliged to facilitate the entry and residence of the partner with whom the Union citizen has a durable relationship, duly attested. In doing so an extensive examination of the personal circumstances of such relations must be undertaken.