Family reunification rights of (migrant) Union citizens: Towards a more liberal approach

Over the years, in the case-law of the European Court of Justice (ECJ) determining the availability of family reunification rights for migrant Member State nationals, the pendulum has swung back and forth, from a „moderate approach‟ in cases such as Morson and Jhanjan (1982) and Akrich (2003), towards a more „liberal approach‟ in cases such as Carpenter (2002) and Jia (2007). Under the Court‟s „moderate approach‟, family reunification rights in the context of the Community‟s internal market policy are only granted in situations where this is necessary for enabling a Member State national to move between Member States in the process of exercising one of the fundamental freedoms; in other words, where there is a sufficient link between the exercise of one of the fundamental freedoms and the need to grant family reunification rights under EC law. Conversely, under the Court‟s „liberal approach‟, in order for family reunification rights to be bestowed by EC law it suffices that the situation involves the exercise of one of the fundamental freedoms and that the claimants have a familial link which is covered by the Community‟s secondary legislation: there is no need to illustrate that there is a link between the grant of such rights and the furtherance of the Community‟s aim of establishing an internal market. The recent Eind and Metock judgments (and the Sahin order) have shifted the pendulum towards the „liberal approach‟ side by making it clear that it is not necessary a) that the family members of migrant economic actors have been lawfully resident in another Member State, prior to their move to the host State where they accompany or join the migrant; or b) (according to Metock and Sahin) that they have been family members of the migrant economic actor at the time that that person had exercised his freedom to move. In this paper it will be explained that the fact that the EU is aspiring to be not only a supranational organisation with a successful and smoothly-functioning market but also a polity the citizens of which enjoy a number of basic rights which form the core of a meaningful status of Union citizenship, is the major driving force behind this move. In particular, the move towards a wholehearted adoption of the „liberal approach‟ seems to have been fuelled by a desire, on the part of the Court, to respond to a number of problems arising from its „moderate approach‟ and which appear to be an anomaly in a Citizens‟ Europe. These are: a) the incongruity caused between the (new) aim of the Community of creating a meaningful status of Union citizenship and the treatment of Union citizens (under the Court‟s „moderate approach‟) as mere factors of production; and b) the emergence of reverse discrimination. The paper will conclude with an explanation of why the adoption of the Court‟s liberal approach does not appear to be a proper solution to these problems