8 November 2012 saw the judgment of an interesting case in the line of development of Union citizenship. Many cases in this area have been made relevant and indeed, been eagerly anticipated by scholars following the seminal C-34/09 Ruiz Zambrano case exactly 1 year and 8 months ago. The principles laid out in that case established an autonomous role for Article 21 TFEU, which sets out the right to free movement and residence. It appears that now it is no longer conditional upon proving a cross-border link with the Treaty but rather on a relatively vague ‘genuine enjoyment’ test. Iida could have played a potentially enlightening role in decrypting this elusive concept, but like its predecessors (see C-434/09 McCarthy and C-256/11 Dereci) the question was clearly distinguished from the facts at hand.
Mr. Iida is a Japanese national married to German national. They have a daughter who was born in America. She has German, Japanese and American nationality. The family moved to Germany from the USA, upon which Mr. Iida obtained a residence permit as spouse of a Union citizen. He works full-time on unlimited contract. Relations soured between Mr. Iida and his wife (though it is categorically noted not between Mr. Iida and his daughter) prompted by her move to Austria with their daughter where she worked full time. Currently, Mr. Iida and his wife enjoy joint custody though are permanently separated. After separation, however, Germany revoked Mr. Iida’s spousal residence permit. He currently has a work permit subject to discretionary renewal, but wants a residence card of family member of Union citizen. He applied for long-term residence as a third country national, but withdrew this application.
The questions referred relate to the meaning of ‘family member’ under the Citizenship Directive, 2004/38 especially where the applicant does not maintain the Union citizen, nor is the Union citizen accompanied or joined by him. The questions of applicability of the Charter of Fundamental Rights and the European Convention on Human Rights (ECHR) as regards to the national laws in question as well as interpretation of Art 21 TFEU are also in discussion.
The AG’s Opinion
AG Trstenjak provides a comprehensive review of this fairly unique situation, distinctive because the applicant is claiming rights not upon the Member State of his daughter’s residence, but rather her origin. Upon addressing first the application of the Directive, careful analysis of the wording suggests that the circumstances at hand do not, in fact, confer a right of residence on Mr. Iida. This also renders reliance on the Charter and ECHR inapplicable. Although Art 6 TEU guarantees Charter rights and accedes to the ECHR, Art 51(1) of the Charter does not allow recourse to these provisions if there is nothing to link EU law to the situation.
However, AG Trstenjak finds this link through the rights Mr. Iida’s daughter has under Art 20 and 21 TFEU (the citizenship provisions). Whilst it is ‘unclear’ that denial of the residence card would deprive Mr. Iida’s daughter of the genuine enjoyment of the substance of her free movement rights (the Zambrano test), AG Trstenjak states the it would interfere with her rights to free movement if her father were to move further away. This is supported by way of reliance of the rights under Art 8 ECHR and Article 7 Charter (right to privacy and family life) as well as Art 24(3) Charter (child’s rights to a personal relationship and contact with their parents). This interference with Mr. Iida’s daughter’s rights should allow him access to the residence card.
The Court of Justice of the European Union (CJEU) is more comprehensive in their assessment of which provisions Mr. Iida cannot satisfy, beginning with rejecting the application of Directive 2003/109 on long-term residency for third country nationals because he withdrew his application.
They continue to then, like AG Trstenjak, to reject application of Directive 2004/38 clarifying that whilst his daughter and wife fall squarely within its remit having moved to Austria, Mr. Iida does not satisfy the definition of ‘dependent family member’ upon his daughter’s rights because she is not reliant on him, but he does come under the spouse definition because separation is not legally synonymous to divorce. However, as it is crucial for him to reside with the Union citizen to benefit, he may not rely on its provisions.
The Court then analyses the validity of the case under Arts 20 and 21 TFEU. It is held that despite not having the residence card Mr. Iida seeks, his family has not been discouraged from the genuine enjoyment of their rights to free movement – they have moved. Therefore, the Court finds that it is incorrect to rely on hypothetical situations of discouragement of movement and arbitrary links with EU law simply to find oneself within the scope of the Treaty. Without a link to the Treaty, there could be no recourse to fundamental rights under the Charter or the ECHR. The Court does not consider the daughter’s rights, thus holding that Mr. Iida did not have rights to the residence card.
The coherence between AG Trstenjak and the Court is striking, and fairly rational. The slightly unique situation because the dependent (Mr. Iida’s daughter) is not reliant on her father is dealt with in a reasonable manner interpreting the Directive’s provisions. The circumstances stand in contrast to previous case law, namely C-200/02 Zhu and Chen where a third country national mother did derive the right to reside from her newborn Union citizen baby. However the distinction between this case and that is that Mr. Iida already has residency as a worker, and it is less imperative he “remain” with his daughter as she is not materially ‘dependent’ on him.
The Court also acknowledges there is an exceptional line of case law which allows third country nationals reliance on the rights conferred by the Treaty if the Union citizen would have to leave the EU territory altogether, the Dereci reasoning. The circumstances are not so severe here, thus no rights are conferred. It would insinuate a high threshold as to what constitutes deprivation of the genuine enjoyment of substance of Union citizenship rights.
However, most problematic would be the rejection of the application of fundamental rights because the Court failed to establish a link to EU law. Unlike AG Trstenjak, they refused to stretch their conferral to rights of Mr. Iida’s daughter. The judgment may have turned differently on reasoning in C-148/02 Garcia Avello where hypothetical situations of free movement were invoked as a valid application of the Treaty to allow mutual recognition of double-barrelled surnames, or the more far-reaching C-60/00 Carpenter case where a tenuous link with potential services to be provided overseas prevented a family from being deported. It is that statement of the judgment which is most puzzling for followers of the developments thus far. Perhaps it suggests a diverging line of reasoning, though is limiting for the scope of Union citizenship’s ‘fundamental status’.