Metock case and the influence on the danish inmigration law

[fundiver199]

It is derived from the reasoning in the ruling of the EU-court in the cases involving secondary free movement, of which the last was the Eind case, where the reasoning is found in point 36:

http://eur-lex.europa.eu/LexUriServ/Lex ... 91:EN:HTML

35. A national of a Member State could be deterred from leaving that Member State in order to pursue gainful employment in the territory of another Member State if he does not have the certainty of being able to return to his Member State of origin, irrespective of whether he is going to engage in economic activity in the latter State.

36 . That deterrent effect would also derive simply from the prospect, for that same national, of not being able, on returning to his Member State of origin, to continue living together with close relatives, a way of life which may have come into being in the host Member State as a result of marriage or family reunification.

The central sentence here is "continue living together with". If you did not live together with your husband in Belgium, it could also not have deterred you from moving to Belgium, that you could not be sure to be able to continue living with your husband upon your return to Holland.

And it is on this deterrent effect on leaving your own country, that the EU-court leans its entire ruling in Eind as well as preceding cases.

With a similar line of reasoning, there have also been rulings against policies meaning, that you are worse off in your own country, if you have left it for a period to stay in another EU-country, e.g. in the social system.

In the Eind-case the court rules against an argument made by the danish and dutch governements, that you could not be deterred from moving to Belgium because of your husband, if your husband does not have a residence permit in Holland.

But for the deterring effect to excist, and thus for this to be a matter for the EU and not just a national dutch matter, you must have had a family life with your husband during your stay in Belgium.

And trying to challenge this is, with the words of skaanebo, to test the limits of the rules. And in doing so you will be up against the whole power of the dutch and danish and verious other governments. So by far the easiest solution is just to accept, that it is like this, and to have your husband with you, while you live in the other country.

Upon a direct question the head the the danish Immigration Service has said, that there is no time limit on, how long your husband should have lived with you in the other country, and that in principle 1 day could be enough. I.e. if your husband join you on february 3 and you move back to your own country on february 4, after having lived there yourself for a while, the conditions might already by met. But again why test the borders of the rules, why not just have your husband live with you for a regular amount of time, before you move back?

This is by far a lot easier and faster than fighting the dutch and danish and a number of other governments in the court.

[zandvoortzandvoort]

If it all depends on those facts and verdicts, than were comes in the fact that the Directive is not barking that vieuw? For it is not a written requierment to do it togheter, according to the outlay of the declaration.
Why should you have to live there together or even be there together, if the other familiemembers are not asked to do that? They simply talk about the familymembers having those rights as to join you, or to accompany you. That also includes spouses and than, the rest of that family. They dont say, you and your spouses have to be there together, no, they say that your familymembers have the right to do so. Is there not a differance there than, between rights and obligations?

Could you send some of those cases to me?

[fundiver199]

Directive 2004/38 EU only cover the situation, where you want to travel to or live in another EU-country than your own. It does not at all cover the situation, that you want to move back to your own country and live there.

Principially in that situation, you should be able to rely on your national rights as e.g. dutch or danish citizen. And the only reason, why the EU-court has found it necessesary to interfeer in this situation at all, is that some countries are treatning their own citizens so bad upon their return, that it might deter someone from using their right to free movement at all.

In the Eind case e.g. the child should obviously have been granted a residence permit after national dutch law, and it only became an EU-matter, because national dutch law was crazy in this respect and did not protect the rights of dutch citizens sufficiently.

[zandvoortzandvoort]

This is by far a lot easier and faster than fighting the dutch and danish and a number of other governments in the court.
fundiver199

findiver199, Thank you, that what you say is true and that is what i will do, but i just cant help myself to find out the truth. I believe in justice and i will fight for our rights no matter how long. And we dont know each other, but i am a happy human beeing. And wil stil live life to the fullest, with my ey,s directed at God, while having fun, playing with mankind and Governements. The EU is my safier. And I will not easely give up on the rights that they set up for us, to use us help make Europe a saver place.They set it up to stop the fighting and we have to stop the fight now, against the "Foreigners" as they motivaded us setting it up, at the time. Now is our time, not to accept, but to fight them on this issue now! Together as families. There comes the word, "together" again! Smile?

p.s. I should add that i will show your comments if that is alright with you, to the person(s), lawers etc whom are looking at this unsolved situation, presently?

by fundiver199 » 31.10.2010 01:25:47

Directive 2004/38 EU only cover the situation, where you want to travel to or live in another EU-country than your own. It does not at all cover the situation, that you want to move back to your own country and live there.

Principially in that situation, you should be able to rely on your national rights as e.g. dutch or danish citizen. And the only reason, why the EU-court has found it necessesary to interfeer in this situation at all, it that some countries are treatning their own citizens so bad upon their return, that it might deter someone from using their right to free movement at all.

In the Eind case e.g. the child should obviously have been granted a residence permit after national dutch law, and it only became an EU-matter, because national dutch law was crazy in this respect and did not protect the rights of dutch citizens sufficiently.
fundiver199

[fundiver199]

Of course. This is a public forum, so everyone is free to read, what is written here.

[zandvoortzandvoort]

Than this comes to mind while reading your posting again. In the Eind case it was not a spouse, but a chield. There was a case lately in the Netherlands about the governement demending that one sister of a third lander, whom already had been given the EU titel, the sister had not previously lived with them in that first member state. They argued that the sisiter could not get a visa to come and join them in Holland, for she had never lived together with the Union husband and her sister, of whom she wanted to live with, in the other first member state!

They lost, becouse the udge said that it was no requierment for the sister to have previously have lived together with them in the other member state! Than why do they ask this of the spouses than? Is it not a little bit strange that the husband, becouse they have to have a family life before, in a other member state, so that they can continue that in Holland upon return, has to do that, but the rest of the family dont?

[zandvoortzandvoort]

http://translate.google.nl/translate?hl ... shOptouts/

http://translate.google.nl/translate?hl ... shOptouts/

Europeiske Union> Den danske opt-outs
EUROPEISKE UNION

[fundiver199]

There was a case lately in the Netherlands about the governement demending that one sister of a third lander, whom already had been given the EU titel, the sister had not previously lived with them in that first member state.

Could you post a link to that case?

About the danish opt-outs, the union citizenship is in accordance with the text in your link no longer among them, because the formulation of this became coincident with the danish wishes in a later treaty. So whatever the EU-court decides, that involves the scope on the union citizenship, will therefore also have full effect in Denmark, unlike what skaanebo wrote.

The directive about family reunification, however, is part of the legal cooperation in which Denmark does not participate at all, so changed in this directive will have no effect in Denmark (or Ireland or UK, who also have an opt out here).

This is the reason, why Denmark unilke e.g. Holland can legally have a 24-year age limit for spouses, a 15 year age limit for children, an attachment demand, a bank garantie and several other restrictions on the right to family reunification.

[zandvoortzandvoort]

I understand the explenation about the opt out, then you are worse of indeed, than we. I could sent the link, but the problem is, that it is in Dutch? Dou you still want it than?
I will sent it, maby you can translate is somehow?

http://jure.nl/bl7327

In this verdict the udge also sais that it is not requiered to be there with the EU citicen.

8.3. Eiseres stelt voorts dat nu haar dochter en referent rechten ontlenen aan de verblijfsrichtlijn, zij eveneens rechten kan ontlenen aan die richtlijn, omdat zij dient te worden aangemerkt als familielid zoals bedoeld in artikel 8.7, eerste lid en tweede lid, van het Vb 2000. Verweerder, Ministry of Justice, stelt hiertegenover dat, nu eiseres niet bij referent in Duitsland heeft verbleven er geen aanknopingspunten met de verblijfsrichtlijn zijn, waardoor eiseres niet in aanmerking komt voor een visum.


De rechtbank, the courd, overweegt in dit verband dat in bovenvermeld beleid zoals neergelegd in de paragraaf A2 /6.2.2.2 van de Vc 2000 dit niet als vereiste wordt vermeld,
Note:(niet) means, not.


waarbij de rechtbank er nogmaals op wijst dat niet in geschil is dat referent en zijn echtgenote in Nederland rechten ontlenen aan de verblijfsrichtlijn. In het beleid wordt een limitatieve opsomming gegeven van de redenen waarom een visum kan worden geweigerd als is vastgesteld dat een persoon een familielid is als bedoeld in de verblijfsrichtlijn. Niet is gesteld dat een van deze weigeringsgronden van toepassing is. Nu verweerder, gelet op het bepaalde in artikel 4:84 Algemene wet bestuursrecht (Awb), is gehouden om conform zijn eigen beleid te handelen, is de rechtbank van oordeel dat verweerder onvoldoende heeft gemotiveerd dat eerder genoemd vereiste aan eiseres kan worden tegengeworpen.

I will try to do it for you, but a little later, oke? And I thougt it was the sisiter, but it turns out to be, the womans doughter.

[fundiver199]

If I understand it correctly, then the case is about a dutch citizen with a non-EU spouse, who moved together from Germany to Holland, and as a result thereoff the non-EU spouse now have a residence card in Holland after EU-rules.

And in that situation the dutch court say, that the child of the non-EU spouse can therefore also move to Holland after EU-law, even the child did not live with the dutch citizen and her mother, while they resided in Germany.

Please correct me, if this is wrong.

If it is right, then it is a somewhat special case and does not really cover the situation of simply wanting a residence card for your spouse.

The court might rightly enterpret, that a denial of allowing the child to live in Holland would effectively mean, that the mother would be strongly encouraged to leave Holland, and that this would therefore in practice have the same effect on the dutch citizen, as if his spouse herself was denied the right to risidence after his return to Holland.

If the woman had only joined the dutch citizen in Holland, after he moved back there, I am pretty sure, that the decision of the court would have been different. So the conclusion seems to be, that although your spouse must live with you in the other EU-country, this does not count for eventuel children, that your spouse might have from a previous relationship. They can join you later and will still be covered by EU-rules, if you and your spouse are.

[zandvoortzandvoort]

If I understand it correctly, then the case is about a dutch citizen with a non-EU spouse, who moved together from Germany to Holland, and as a result thereoff the non-EU spouse now have a residence card in Holland after EU-rules.
Yes.


And in that situation the dutch court say, that the child of the non-EU spouse can therefore also move to Holland after EU-law, even the child did not live with the dutch citizen and her mother, while they resided in Germany.
Yes, but the Ministry had argued that the chield did not live with them in Germany!


Please correct me, if this is wrong.
No, that is right.

If it is right, then it is a somewhat special case and does not really cover the situation of simply wanting a residence card for your spouse.
That is correct, it is a residance card, for the chield of the foreign wife. By the way, we dont specify that card here as a residance card, but as a recidance status.


The court might rightly enterpret, that a denial of allowing the child to live in Holland would effectively mean, that the mother would be strongly encouraged to leave Holland, and that this would therefore in practice have the same effect on the dutch citizen, as if his spouse herself was denied the right to risidence after his return to Holland.
Yes and no, becouse the udge said that the chield had that right anyhow, so, therefore the dicision of the Minisry could not be uphold. So that was not the reason, and it was also not discussed by the udge.

If the woman had only joined the dutch citizen in Holland, after he moved back there, I am pretty sure, that the decision of the court would have been different. So the conclusion seems to be, that although your spouse must live with you in the other EU-country, this does not count for eventuel children, that your spouse might have from a previous relationship. They can join you later and will still be covered by EU-rules, if you and your spouse are.

She would have been denied than if she had not been there together with her husband, dont we know that by now? It is still going on even today, also about people whom put in for the status today. I have a verdict about received right. Will place it as soon I have found it.


Yes, but the udge also said that this was a right for familiemembers, and that includes the foreign wife too, than, for she also falls onder the definition of familiemember. It is not defiend that the spouses have to live there and the rest of the family not! So what the udge concluded, is, that should than, just as much, also count for the wife, eventhough she and her husband had lived together in Germany, in other words, it is NOT a requierment. Than to come back to the demand of the various governements, that seems to be unlawfull to claim that, just for the spouses than? Nobody said that we had to have had a familylife there first, for being married and having a livingcontract, points out that there is a familylife. The Brax arrest points that out too!

[fundiver199]

I think it is important to understand, that EU-law is a very dynamic thing, which develop to a large extend through interpretations and decisions by the EU-court.

As I have said already, the interpretation in Denmark is the same as in Holland i.e. the non-EU family member must have lived with the EU-citizen in the other country, and they must move to the EU-citizens own country together.

Apparently there is now a dutch judge, who interpret the EU-law in a different and more citizenfriendly way. That does not mean however, that the dutch judge is right and those authorities, who interpret the rules in a more restrictive manner, are wrong.

Ultimative it is the EU-court, who has the last word, and it is rulings by the EU-court, that might force the national government to give the citizens further rights. Like it happened after the rulings in the Carpenter, Eind and Metock cases.

So perhaps in the future there will not be a demand, that your spouse need to have lived with you in the other EU-country, or even that you need to have moved yourself. But for now there is, and the decision in your case is not any different from, how a similar case would in all likelihood have been decided in Denmark.

We must recognize also, that this whole area is a highly political one, and that the protection of citizens rights clashes against the political desire to limit immigration from non-EU countries to the EU. And in this battlefield the EU-court has traditionally played the role of expanding citizens rights at the cost of the po-litical wishes of being able to control immigration. Which has often led to accusations against the court for being “politically activistic”.

In the ongoing case, to which you referred, it will be very interesting to see, how far the judges in the EU-court are willing to go this time in a direction, which will further expand the extension of the EU-law and limit the possibilities of national politicians to implement anti-immigration policies on a national level.

Particular the inverse discrimination issue is a political minefield, since there are wishes from among others the dutch government to tighten rules for family reunification rather than loosing them up, which would be necessary to avoid reverse discrimination.

Alternatively directive 2004/38 EU will need to be revised in a direction that limit the right to free movement for those EU-citizens, who have non-EU spouses. In particular the ruling in the Metock case would need to be undone by changing directive 2004/38, so that it only involves the right to move to another EU-country and not the right to remain there, once you have moved.

That doesn`t seem particularly sensible and therefore also not particularly likely in my opinion. So presumably the end will be, that national rules for family reunification will need to be loosened in both Holland and Denmark to avoid inverse discrimination. But this is not something, that will happen without a lot of howl and scream, and it might easily take a decade or more in my opinion.

[MSH]

Fundiver:

I can't seem to find the relevant article in directive 2004/38 where the requirement that a EU citizen has to have established a HOUSEHOLD in another member state in order to be covered?

All I can see is art. 3 which states:

"Beneficiaries
1. This Directive shall apply to all Union citizens who move
to or reside in a Member State other than that of which they
are a national, and to their family members as defined in point
2 of Article 2 who accompany or join them."

'Move to' is not the same as 'reside in'. Hence the conjuction 'or' to differentiate between the two concepts.

The interpretation that a EU citizen has to have exercised his right to free movement by settling in and setting up household in another member state in order to benefit from community law have long since been abandonded by the ECJ. (See cases Zhu and Chen, Avello, Carpenter among others).

But up-keeping the illusion that free movement is defined as a cross-border physical event in which a citizen moves to AND resides in a member state other than his own is vital to far-right, anti-foreigner governments such as the Danish, British, Irish and German.

That doesn't make it legal in the eyes of the ECJ, though.

The Danish national restrictions like 24-year rule, bank deposit funds etc. are all in violation of the European human rights convention as has been pointed out by the Danish institute for human rights all the way back in 2004.

As far as pushing the limits I personally feel no new rights or freedoms are ever won unless some couragious individual decides to stand up to injustice.

Rosa Parks could have chosen to go sit in the back of the bus like a good negro but I for one is deeply grateful for her choice NOT to do so..

MSH.

[zandvoortzandvoort]

Fundiver:

I can't seem to find the relevant article in directive 2004/38 where the requirement that a EU citizen has to have established a HOUSEHOLD in another member state in order to be covered?

Becouse it is not there!

All I can see is art. 3 which states:

"Beneficiaries
1. This Directive shall apply to all Union citizens who move
to or reside in a Member State other than that of which they
are a national, and to their family members as defined in point
2 of Article 2 who accompany or join them."

'Move to' is not the same as 'reside in'. Hence the conjuction 'or' to differentiate between the two concepts.

The Union citizens can move or riside to such a state.
And their family members can accompany or join them?

So you read it good, what the Union citizens are allowed to do and that what their family members could do, nowere there is written that you have to set up a household, indeed! They can do that with you or join us. And again, nowere is written that we have to set up a household! We can spend time there under 3 months, without having to forfill any requierment than to prove that we are family or married, etc. And have a prove of ID. But to me one,s you have exersiced that right together, that should give you the right of having to be under that directive and its granted rights!

We may stay longer if we choose to do so, but there is also no time period specifide as to how long, we have to do that? Therefore the discussion about the 3 weeks, 3 months and one day or even longer asked for by our various governements, is questionable?


The interpretation that a EU citizen has to have exercised his right to free movement by settling in and setting up household in another member state in order to benefit from community law have long since been abandonded by the ECJ. (See cases Zhu and Chen, Avello, Carpenter among others).

Indeed, but the courds and most the governement do not live up to those dissisions!

But up-keeping the illusion that free movement is defined as a cross-border physical event in which a citizen moves to AND resides in a member state other than his own is vital to far-right, anti-foreigner governments such as the Danish, British, Irish and German.

Are you not fogetting the NETHERLANDS?

That doesn't make it legal in the eyes of the ECJ, though.

But what so much do they do about it, than?

The Danish national restrictions like 24-year rule, bank deposit funds etc. are all in violation of the European human rights convention as has been pointed out by the Danish institute for human rights all the way back in 2004.

Take them to courd than?

As far as pushing the limits I personally feel no new rights or freedoms are ever won unless some couragious individual decides to stand up to injustice.

I am trying my very best, sister.

Rosa Parks could have chosen to go sit in the back of the bus like a good negro but I for one is deeply grateful for her choice NOT to do so..

MSH.

Those enflamed by disgust, and constant witnesses of pure violation of our human rights, such induviduals are stil among us, believe you me?

[zandvoortzandvoort]

Hello everybody, I filed a complained about the demand of our Dutch government to fail to recognized the Sing, Metock, Eind, etc. And to force us to live together in a member state, before returning back to out native land. And the Commission is now done with it. I was right and such demand is against Union law. I am expecting the last conformating and the signature on the final decision, from the lawyer, whom judged my case, tomorrow. But it looks as if Holland can expect a infringement procedure.
This is the mail that I got. Please read it, and rejoice?

Europese Commissie, 1049 Brussel, BELGIË - Tel. +32 22991111
Kamer: MO59 6/68 - Tel. doorkiesnummer +32 229-9 67 97 - Fax +32 229-7 95 86 JUST-Citizenship@ec.europa.eu
EUROPESE COMMISSIE
DIRECTORAAT-GENERAAL JUSTITIE
Directoraat C: Grondrechten en burgerschap van de Unie
Eenheid C.2: Burgerschap van de Unie
Head of Unit
Brussels, 18 March 2011
JUST/C2/MM/ip (2011) s293963

Dear Ms X.

I refer to your letters, e-mails and phone calls concerning your complaint on refusal by the Dutch authorities to recognize the right of residence under EU law registered under reference number CHAP(2010)2034 (please quote this reference in any further correspondence).

As indicated in my previous reply of 13 January 2011, your complaint raises complex and novel issues of interpretation of EU law. We are also consulting your complaint internally and evaluating it in the light of the recent ruling of the Court of Justice of the European Union of 8 March 2011 in case C-34/09 Ruiz Zambrano, which provided interpretation about the protection that EU law offers to EU citizens who reside in the Member State of their nationality.

If our assessment, once finished, concludes that the Dutch rules requiring common
residence of the couple abroad are not in line with EU law, we will consider launching infringement proceedings against the Netherlands under Article 258 of the Treaty on the Functioning of the European Union (TFEU). Such proceedings take several years before the Court delivers its ruling.

Please note that the role of the Commission is to ensure that Member States comply with their obligations under EU law and, if Member States fail to do so, to compel them to come into line with EU law by instigating proceedings under Article 258 TFEU.

The Commission's role is not to satisfy individual interests EU citizens may see as
threatened by the Member State's alleged unlawful conduct. In this respect, the
Commission's right to launch proceedings under Article 258 TFEU does not provide EU citizens with an additional means of redress. The Commission does not act as an appeal body regarding the misapplication of EU law in individual cases and it enjoys limited authority to carry out investigations. It cannot replace national courts. Only the national courts can award you reparation. I therefore suggest making use of all the means of redress available at national level, which as a rule enable you to assert your rights more directly and more personally.

Yours sincerely,
Chiara Adamo
Ref. Ares(2011)301632 - 18/03/2011I

Than I spoke to him the next day by phone, to Mr Meduna, the lawyer whom had judged our cases, and he told me that the case was almost closed, but his superior had to sign it.

Because my cases can not be handled by them. One of our political parties D66, are going to ask chamber questions to put this matter before the immigration Minister. I will post the last letter accordingly as soon as it is send. He also confirmed his decision that he agreed with my judgment and that that settled the matter and they could now move on to inform the Dutch government.
When I talked to him yesterday, he said that the concept had been send to be signed and that I would have the English version by Wednesday, I am praying for that. He than send that decision to his superior to agree with that, he knew already that it was agreed. That it was indeed not in line with Union law and that the decision of our government was unlawful.

How come, you people did not discuss the Arrest of the Zambrano family? Or did I miss something? I did not see it on the site? So you see, that girl did not get up in the bus and I never stopped fighting for our rights. That having to be with our spouses while living or working etc in a other member state was unlawful from the start. Now they will hopefully finally understand the message in these Arrests? And now they all, up on to the highest court, here in Holland, will know it. The came is over and we will get our rights, and all those, that were denied, like our selfs, and we will get compensation too. My husband never worked from May 2008 until now. Count your money upon 60 Euro a day!

Greetings from Amsterdam