mkhan2525 wrote: ↑Tue Oct 24, 2017 5:34 pm
Back on topic. How does one rely on Article 45 when O and B Netherlands more or less rewrites Singh and earlier case law?
In paragraph 54 of O and B the CJEU courts underlying objective was not to deter the EU nationals movement. The UK regulations as they are currently have the effect of detering a national from moving or returning to the member state of origin by creating uncertainy. For example there may be a situation where one is not able to work or where despite trying to find work they are unable to. Surely this is what the court in Eind was seeking to avoid hence Eind is not overturned?
It's clear from numerous case law, the CJEU court has always given significant weight to family life of EU nationals.
It doesn't rewrite Eind.
This Dutch advocate knows a lot about O&B, a decision by which Eind was most certainly not overturned, but to a certain extent was expanded-- a chapter of his book was dedicated to it and he also published a case note in the European Constitutional Law Review on another case that turned on what O&B means:
https://www.cambridge.org/core/journals ... ing-glass/
A case note (13: 383–399, 2017, published online: 26 May 2017) in the ‘European Constitutional Law Review’ refers to O&B (ECJ 12 March 2014, Case C-456/12, O v Minister voor Immigratie, Integratie en Asiel, and Minister voor Immigratie, Integratie en Asiel v B.) in relation to Eind as follows:
In July 2016, the EFTA Court issued a judgment on the circumstances under which EEA law provides for a derived right of residence in the home member state of an EEA national for the third-country national family member of that EEA national, specifically when that EEA national has returned from residing in another EEA state as an economically inactive person. In this, the Court was adding its own translation into EEA law (at least as it applies to the EFTA states, the three member states of the EEA that do not belong to the EU: Norway, Liechtenstein and Iceland) onto a veritable tower of case law from the European Court of Justice, its EU counterpart, starting with Surinder Singh, going on to Eind, and most recently restated in O&B…
... Groenendijk places the ambiguous consideration in its context: the fact that the EFTA Court so closely followed Eind in its decision must also mean that one of the key considerations of that decision applies (either because the EFTA Court meant it to apply, or in spite of the fact that the EFTA Court did not mean it to apply). And specifically: that since the right of the EU citizen (in that case) to return to his own member state after making use of the freedom of movement of workers is unconditional, the derived right of residence of his family member must also not be conditional on whether the EU citizen continues to work or not. The fact that in Jabbi and O&B, the Directive has been declared to be applicable ‘by analogy’ to that derived right of residence upon return cannot be read to mean that the provisions of the Directive also apply concerning any conditions that the EEA national has to satisfy in her home state…
… The EFTA Court may do its best to keep up the appearance of only construing rights from the classic economic freedoms of the Community that the EEA inherited at its genesis, for instance by basing its express considerations on Eind. But even in Eind, EU citizenship palpably lurks under the surface as an important addition to the fundamental freedoms. In reality, the freedom of economically inactive EEA nationals to return to their home states with their third-country national family members is not construed out of the dualistic will of the EFTA states to adopt Directive 2004/38 (if it had been, the Court would have declared the Directive to actually apply), but is anchored in a legal basis in primary law: the independence of the EFTA Court to enforce the principle of homogeneity with EU law. And that legal basis, as much as the EFTA Court may not want to admit it, provides a necessary simulacrum in EEA law for Article 21(1) TFEU and the EU citizenship that EU law has developed and that EEA nationals do not have.
(Extracts above from case note 13: 383–399, 2017 in the ‘European Constitutional Law Review’, with the author’s permission).
Bierbach, J. (2017). The Reality Test of Residence goes through the Looking Glass: Court of Justice of the European Free Trade Association States (EFTA Court), judgment of 26 July 2016, Case E-28/15, Yankuba Jabbi v The Norwegian Government, represented by the Immigration Appeals Board. European Constitutional Law Review, 13(2), 383-399. doi:10.1017/S1574019617000104.
Hope this helps everyone.
.... I spend 24 hours a day looking after them taking everyone for hospital appointment kids to school cooking cleaning washing parents doing all the daily chores etc...unless my circumstances change I dont Have a second spare 
here in the UK.
