ECJ right to reside advocate general’s opinion

attached link to advocate general’s opinion in

Case C-34/09, Gerardo Ruiz Zambrano v Office national de l’emploi (ONEM)

conclusions include that european citizens have right of residence independent of the right to move between states.

cheers ros

Interesting interrelationship between national and EU law. It only “works” because domestic Belgian nationality law gave the two Belgian-born children of Colombian parents Belgian nationality on the particular facts of the case. For an equivalent in the UK you would be reliant upon British nationality law which might not have the same effect. It seems for reasons that escape me that the children would otherwise have been regarded as stateless. I’m not sure that the same circumstances would apply in our law - a child can be given British antionality if they would otherwise be stateless, but I don’t know if they woudl be considered stateless here.

further ECJ right to reside advocate general’s opinion -

Case C?434/09 - Shirley McCarthy v Secretary of State for the Home Department

takes opposite view to Zambrano in terms of EU right of residence for someone who has not moved between states but does say that it’s consistent with aims of EC Directive 2004/38 for ‘the group of persons entitled to permanent residence to be extended to those Union citizens whose residence entitlement in the host Member State results solely from the latter’s domestic law on foreign nationals since, when assessing the degree of integration of a Union citizen in the host Member State, it is of secondary importance where his right of residence originates from.’ (para 52)

ECJ now given judgment in McCarthy - holds that -

‘1.    Article 3(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, must be interpreted as meaning that that directive is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State.

2.    Article 21 TFEU is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State, provided that the situation of that citizen does not include the application of measures by a Member State that would have the effect of depriving him of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen or of impeding the exercise of his right of free movement and residence within the territory of the Member States.’

here’s link to judgment -

ECJ McCarthy judgment