The Free Movement of Persons - Workers
Article 45 TFEU secures free movement of workers within the EU and is directly effective (Van Duyn)
Article 24(1) Directive 2004/38 provides the right to equal treatment for Union Citizens and family members lawfully residing
in a Member State
1) Is claimant a ‘worker’ or ‘family member’ of EU citizen?
Worker Family Member
A worker is a person who (Lawrie-Blum): A family member of a union citizen is a person who (Art. 2
• Performs services for another person Directive 2004/38)
• Is under the control of that person • Spouse/civil partner (depending on host state rules on civil
• Receives remuneration partnerships)
• Direct descendent under 21 or who are dependents
Includes: • Dependent relative in the ascending line and those of the
• People seeking work, therefore union citizen can spouse/civil partner
move to a MS to look for work (ex p Antonissen -
UK could deport after 6 months of looking for a job) Includes ‘other family members’:
◦ Now codified in Directive 2004/38 Art. 6(1) - • dependents (Art. 3(2)(a))
rights to residence up to 3 months - and 14(6) - • Household members with serious health grounds in need
right to enter to seek work. of person care (Art. 3(2)(a))
• Part-time work which is ‘effective and genuine’ • Non-marital relationships given it is a ‘durable
and not on ‘such a small scale’ (Levin) relationship and duly attested’ (Reed) (Art. 3(2)(b))
◦ Part-time work even if supplemented with
state benefits, remuneration doesn’t have to *’other family members’ have lesser rights relative to direct
be enough to live on (Kempf) family members - ECJ has advised MS to be more favourable
• Receiving non-pecuniary benefits instead of towards direct family members -> but MS have wide
money counts (Steymann - worked in a religious discretion and must be able to justify any refusal, which are
commune which provided him with material needs) judicially reviewable
• Work to benefit the worker in rehabilitation
programme is not sufficient (Betray - drug rehab) When family members can lose their rights:
• Death of union citizen unless:
Only nationals of MS can rely on Art. 45 ◦ have been there for one year (Art. 12(2))
• Nationality will be determined by national law and ◦ Are a child (or a parent with custody of a child) enrolled
differs between each MS (Micheletti) in education establishment (Art. 12(3))
• Departure of union citizen unless:
*Article 45 TFEU does not apply in an entirely ◦ Are a child (or a parent with custody of a child) enrolled
internal situation (R v Saunders - guilty of theft in education establishment
deported to Ireland) • Divorce: spouse may retain right to residence if they meet
one of the conditions (Art. 3(2)(a-d)):
◦ Their partnerships was registered + lasted 3 years + 1
2) do they satisfy relevant formalities? year was spent in MS
◦ person has custody over union citizen’s child
MS can require formalities in relation to rights - ◦ If there were particularly difficult circumstance (e.g.
punishment for failure to comply must be proportionate : dom. violence)
expulsion is disproportionate (Royer) ◦ If they have right of access to the child who is in the
MS
Documentations: • Separation: rights remain even if they’re not living together
• Right to entry: ID card/Passport (and visa for non- (Diatta)
union citizens = free of charge + without delay) ◦ However, union citizen cannot leave the country, or
◦ Same for right to residence for up to 3 months separated partner will lose their rights (Sandhu)
◦ Right to residence for + 3 months can require ◦ Returning migrant workers to home state should be
extra documentation allowed to bring spouses/other family members home
• Right to exit: ID card/Passport with them even if separated (Singh)
• Permanent residence:
◦ union citizen should apply to host state for a *family members of union citizens obtain rights to permanent
document certifying permanent residence residence after 5 years
◦ Family member may apply for permanent
residence cards
Article 45 TFEU secures free movement of workers within the EU and is directly effective (Van Duyn)
Article 24(1) Directive 2004/38 provides the right to equal treatment for Union Citizens and family members lawfully residing
in a Member State
1) Is claimant a ‘worker’ or ‘family member’ of EU citizen?
Worker Family Member
A worker is a person who (Lawrie-Blum): A family member of a union citizen is a person who (Art. 2
• Performs services for another person Directive 2004/38)
• Is under the control of that person • Spouse/civil partner (depending on host state rules on civil
• Receives remuneration partnerships)
• Direct descendent under 21 or who are dependents
Includes: • Dependent relative in the ascending line and those of the
• People seeking work, therefore union citizen can spouse/civil partner
move to a MS to look for work (ex p Antonissen -
UK could deport after 6 months of looking for a job) Includes ‘other family members’:
◦ Now codified in Directive 2004/38 Art. 6(1) - • dependents (Art. 3(2)(a))
rights to residence up to 3 months - and 14(6) - • Household members with serious health grounds in need
right to enter to seek work. of person care (Art. 3(2)(a))
• Part-time work which is ‘effective and genuine’ • Non-marital relationships given it is a ‘durable
and not on ‘such a small scale’ (Levin) relationship and duly attested’ (Reed) (Art. 3(2)(b))
◦ Part-time work even if supplemented with
state benefits, remuneration doesn’t have to *’other family members’ have lesser rights relative to direct
be enough to live on (Kempf) family members - ECJ has advised MS to be more favourable
• Receiving non-pecuniary benefits instead of towards direct family members -> but MS have wide
money counts (Steymann - worked in a religious discretion and must be able to justify any refusal, which are
commune which provided him with material needs) judicially reviewable
• Work to benefit the worker in rehabilitation
programme is not sufficient (Betray - drug rehab) When family members can lose their rights:
• Death of union citizen unless:
Only nationals of MS can rely on Art. 45 ◦ have been there for one year (Art. 12(2))
• Nationality will be determined by national law and ◦ Are a child (or a parent with custody of a child) enrolled
differs between each MS (Micheletti) in education establishment (Art. 12(3))
• Departure of union citizen unless:
*Article 45 TFEU does not apply in an entirely ◦ Are a child (or a parent with custody of a child) enrolled
internal situation (R v Saunders - guilty of theft in education establishment
deported to Ireland) • Divorce: spouse may retain right to residence if they meet
one of the conditions (Art. 3(2)(a-d)):
◦ Their partnerships was registered + lasted 3 years + 1
2) do they satisfy relevant formalities? year was spent in MS
◦ person has custody over union citizen’s child
MS can require formalities in relation to rights - ◦ If there were particularly difficult circumstance (e.g.
punishment for failure to comply must be proportionate : dom. violence)
expulsion is disproportionate (Royer) ◦ If they have right of access to the child who is in the
MS
Documentations: • Separation: rights remain even if they’re not living together
• Right to entry: ID card/Passport (and visa for non- (Diatta)
union citizens = free of charge + without delay) ◦ However, union citizen cannot leave the country, or
◦ Same for right to residence for up to 3 months separated partner will lose their rights (Sandhu)
◦ Right to residence for + 3 months can require ◦ Returning migrant workers to home state should be
extra documentation allowed to bring spouses/other family members home
• Right to exit: ID card/Passport with them even if separated (Singh)
• Permanent residence:
◦ union citizen should apply to host state for a *family members of union citizens obtain rights to permanent
document certifying permanent residence residence after 5 years
◦ Family member may apply for permanent
residence cards
