Right of Exit and Entry

This chapter examines the right of exit and entry provided for in the citizens’ Directive. Articles 4 and 5 of Directive 2004/38 affirm the right of Union citizens and members of their family to leave their Member State of origin and to enter any other Member State of their choosing. As such, these Articles constitute a ‘gateway’ for the exercise of rights of residence and rights of permanent residence provided for in the Directive. In addition to affirming the right of free movement, Articles 4 and 5 specify the administrative documentation and procedures governing travel between Member States. However, there have been significant failures to transpose these provisions correctly, with some Member States imposing exit controls on their own citizens, while some Member States blatantly ignore the clear legal requirements of the Directive.

Restrictions on the Right of Entry and the Right of Residence on Grounds of Public Policy, Public Security, or Public Health

This chapter assesses the restrictions on the right of entry and the right of residence on grounds of public policy, public security, or public health. The secondary legislation adopted specifically to give precision to this exception was Directive 64/221, which continued to apply until it was repealed by Directive 2004/38. It set out the meaning of and limitations upon the right of Member States to exclude or expel EU citizens or their family members on grounds of public policy, public security, and public health. All EU citizens and their family members who move from their home Member State to another Member State are entitled to enter and reside unless the host Member State can establish that one of these three grounds applies. These exclusions are foremost among the ‘limitations’ referred to in Article 21 TFEU on citizenship of the Union.

Right of Residence

This chapter details the right of residence provided for in the citizens’ Directive. The citizens’ Directive regulates and gives detailed expression to the right of free movement and residence conferred by the Treaties on Union citizens. At its simplest, the Directive regulates residence on the basis of the intended duration of a stay in another Member State. The chapter then evaluates case law which concerns the relationship between the right to equal treatment, on the one hand, and the right of residence, on the other, and whether mobile Union citizens could rely on the principle of equality as a basis for claiming a right to access social benefits and maintaining a right to reside in a host Member State.

Withdrawal Agreement

This concluding chapter studies the citizens’ rights set out in Part Two of the Brexit withdrawal agreement. There are also some relevant provisions in Part One, setting out the ‘Common Provisions’, and Part Six, containing the ‘Final Provisions’. The relevant Part One provisions include Article 4, which states that the withdrawal agreement has the same legal effect as EU law in the UK, including the principle of supremacy; that the Court of Justice of the European Union (CJEU) judgments up until the end of the transition period shall be binding; and that subsequent CJEU rulings are to be taken into account. Meanwhile, the last provisions in Part Two of the agreement refer to publicity about the acquired rights of citizens, permit more favourable provisions to be applied, and confirm that the agreement provides life-long protection for those covered by the scope of the provisions.

General Provisions

This chapter discusses the general provisions of the citizens’ Directive (Articles 1–3), which state its purpose and define its territorial and personal scope. Essentially, the Directive applies to EU citizens and their family members who move to another Member State. While the basic tenets of the Directive can be described quite simply—EU citizens have the right to move to another Member State and to bring their family members with them—the detailed interpretation of the key rules defining the scope of that simple tenet has proven increasingly complex and controversial. The chapter then addresses three issues—the definition of EU citizens, the requirement of movement between Member States, and the position of family members—that determine the application of the rest of the Directive, and so delineate exactly which persons have the right to enter and reside, enter the labour market, resist expulsion, claim social benefits, and obtain permanent residence status.

The EU Citizens’ Directive—An Introduction

This introductory chapter provides an overview of the EU Citizenship Directive. The European Union Directive 2004/38 or the EU Citizenship Directive gives effect to the right which EU law provides to all EU citizens and their family members of any nationality to move, reside, and exercise economic activities if they so choose on the territory of any EU Member State. The right to move and reside anywhere in the EU is a right which is accorded to Union citizens by virtue of Articles 20(2)(a) and 21 of the Treaty on the Functioning of the European Union (TFEU) and enshrined in Article 45 of the EU Charter of Fundamental Rights. The right of free movement of persons in their capacities as workers, self-employed persons, or service providers straddles two of the four fundamental freedoms of the European Union—free movement of persons and services.

Final Provisions

This chapter explores the final provisions of the citizens’ Directive, which do not concern a single specific issue. Rather, they concern the effective implementation of the Directive as a whole. They include provisions which are absolutely essential for the Directive to have any legal effect at all as well as those deemed necessary to ensure its effective implementation in practice. The most significant provision of these is Article 35, which concerns fraud or abuse of rights. This Article is unobjectionable to the extent that it confirms prior case law and merely reiterates that persons who do not qualify for the rights in the Directive cannot rely upon it. However, this statement begs the question as to who benefits from the rights in the first place. In the interests of legal certainty, it would be useful if the Court of Justice took an early opportunity to clarify the meaning of this clause.

Provisions Common to the Right of Residence and the Right of Permanent Residence

This chapter addresses Chapter V of the citizens’ Directive, which sets out a number of overarching provisions that apply both to the right of residence and the right of permanent residence. The Articles in Chapter V define the territorial scope of residence rights (Article 22) and confirm the entitlement of family members of EU citizens who move within the EU to engage in economic activity (Article 23). Further provisions elaborate on the application of the principle of equal treatment to migrant Union citizens and their family members (Article 24) and clarify the status of residence documents issued by national authorities (Article 25). Chapter V also regulates the entitlement of Member States to carry out checks on non-nationals (Article 26). Chief among these provisions is the principle of equality, which also overlaps with equal treatment rules in legislation governing the free movement of workers and the Treaty rules on equal treatment in relation to EU citizenship.

Right of Permanent Residence

This chapter focuses on the right of permanent residence provided for in the citizens’ Directive. Article 16, which creates a general status of permanent residence for EU citizens and their family members, is one of the novelties of Directive 2004/38. It builds on the conditional right to permanent residence for workers and the self-employed and their family members, which already existed, and which has been incorporated into the Directive at Article 17. Meanwhile, Article 18 provides for a permanent residence right for those third-country national family members whose EU citizen principal is no longer available as a source of rights, and who have retained rights of residence under Articles 12(2) or 13(2). The chapter also looks at the provisions of Articles 19–21 on administrative formalities, which are an important part of the protections for EU citizens and their family members.