European Union Citizenship: Freedom of Movement and Family Reunification. Reconciling Competences and Restricting Abuse?*

EUROPEAN UNION CITIZENSHIP: FREEDOM OF MOVEMENT AND FAMILY REUNIFICATION. RECONCILING COMPETENCES AND RESTRICTING ABUSE?* Introduction All Member States of the European Union experience international migration be it legal or illegal 1 : this is symptomatic of the phenomenon of ‘globalisation in the contemporary world’. This paper will treat the right of a citizen of the Union who has exercised his/her right freely to move within the current twenty seven European Union Member States, to be accompanied or joined by his /her third country national (TCN) spouse, in spite of the latter’s illegal residence. The provisions of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (citizens’ rights Directive) 2 will be examined in context. The competence of the supranational European Union as opposed to that of each Member State, to remove barriers to the immigration of third country family members of the migrant Union citizen is affirmed, as a result of the ruling given by the Court of Justice of the European Union in July 2008 in the Metock case; 3 a ruling which accorded precedence to family life over lawful residence regardless of where and when the marriage took place, albeit subject to the proviso that there has been no abuse in the form of a marriage of convenience. 4 Ultimately, Member States, acting proportionately and in accordance with the procedural safeguards 5 of the citizens’ rights Directive, may adopt the necessary measures to refuse, terminate or withdraw any right conferred in the case of abuse of rights or fraud. 6 This ruling has constitutional significance and elicited a robust response from, inter alia, the United Kingdom government, fearful of its implications for efforts to tackle false marriages and its potential to create greater opportunities for trafficking and smuggling. The Justice and Home Affairs Council of the European Union, nevertheless,...