Case No. UKUT-00593-(IAC)
Upper Tribunal Immigration and Asylum Chamber

Case No. UKUT-00593-(IAC)

Fecha: 08-Sep-2015

O, B, S and G

, where the Netherlands authorities had refused to grant a right of residence to a third-country national who was a family member of an EU citizen of Netherlands nationality. The Court held as follows: (i) Article 21(1) TFEU and Directive 2004/38 do not confer any autonomous right s on third-country nationals. Any rights conferred on them by provisions of EU law on Union citizenship are rights derived from the exercise of freedom of movement by a Union citizen. (ii) Directive 2004/38 does not establish a derived right of residence for third-country nationals who are family members of a Union citizen in the Member State of which that citizen is a national. (iii) The purpose and justification of a derived right of residence is that the denial thereof would interfere with the Union citizen’s freedom of movement by discouraging him from exercising his rights of entry into and residence in another Member State . The trigger for the derivative right is the return of the Union citizen to his Member State of nationality. (iv) The conditions for granting a derived right of residence to the third-country family member should not, in principle be stricter than the grant of a derived right of residence under the Directive, even though this does not govern the return of the Union citizen to his home Member State , following his migratory movement to a host Member State in the exercise of Treaty rights . (v) The effectiveness of the right to freedom of movement of workers may require that a derived right of residence be granted to a third-country national who is a family member of the Union citizen in the latter’s Member State . Such a derived right of residence may arise in circumstances where its refusal would interfere with the exercise of fundamental freedoms guaranteed by the Treaty. Thus the link between the relevant provisions of primary and secondary Community legislation continues to feature in the Court’s jurisprudence. 15. Accordingly, where an EU citizen has, pursuant to and in conformity with the provisions of the Directive relating to a right of residence for a period exceeding three months, genuinely resided in another Member State and, during such period, a family life has been created and /or fortifi ed, the effectiveness of Article 51 TFEU requires that the citizen’s family life in the host Member State continue upon returning to his Member State of origin. In such cases, the third-country national who is a member of the EU citizen’s family may qualify for the grant of a derived right of residence. An essential pre requisite is that the third-country national must have had the status of family member of the EU citizen during at least part of the period of residence in the host (or second) Member State .