Chapter 4 End-of-chapter question guidance

Freedom of movement for EU national

1. What are the key differences between EU free movement law and domestic immigration law? Do you agree with the Johnson government’s statement that removing EU free movement law promotes equal treatment?

Consider and compare the principles and sources of domestic immigration law in Chapter 1 with the distinct principles applicable in EU free movement law. Explain the main differences between the two models. Consider the effects of the UK’s withdrawal from the EU on EU citizens seeking to visit, live or work in the UK after 11pm on 31 December 2020. Is this a fairer or more equal immigration policy? Explain why you agree or disagree with the UK Government’s position as set out in the question.

2. What, in your view, should be the proper meaning of the words ‘genuine enjoyment of the substance of [EU] rights’ as first set out in the Zambrano case? Does the CJEU hold the same view? Has the meaning attributed to the words by the Court changed over the development of the case law?

Read the Zambrano case (C-34/09) and the case law that follows, in particular cases C-256/11 Murat Dereci, C-133/15 Chavez-Vilchez, C-304/14 CS and C-165/14 Rendón Marín. Distinguish what, in these cases, the CJEU identifies as the genuine enjoyment of the substance of EU rights. What does this mean in practice? Are there any patterns or trends in the CJEU’s approach to the meaning of ‘genuine enjoyment'? What, in your view, should the words mean? Provide reasons for your view.

3. How has the CJEU used human rights in its free movement case law? What in your view should be the role of the right to the protection of family and private life Article 8 ECHR/Article 7 CFR in free movement law?

Read the cases 60/00 Carpenter and C-457/12 S & G and read the further items listed on the reading list relevant to the question of fundamental rights in EU law. Consider how the CJEU justified reliance on human rights in the Carpenter case. What, drawing on the resources in the further reading list, might be the reasons for the CJEU’s reliance on free movement rights (rather than fundamental rights) in S & G?

4. In your view, should imprisonment break the continuity of residence for the purpose of obtaining permanent residence and/or enhanced protection from deportation? Discuss the CJEU developing case law in your answer.

Read Joined Cases C-316/16 and C-424/16 B v Land Baden-Wurttemberg and Vomero v SSHD and the related case law on the question of continuity of residence following a term of imprisonment. Provide a summary of what the CJEU held in the key cases, including the factors taken into account by the Court, and give your views on what the impact of criminality and imprisonment on the continuity of residence should be. Are all the factors identified by the case law equally important? Explain in your answer what should be the most important factor(s) in guiding the assessment of whether continuity is broken. Give reasons for your view.

5. In your view, how far should Article 20 permit the free movement of economically inactive EU citizens? How have the courts approached this question?

Read the text of Article 20 TFEU and the items on the further reading relating to EU citizenship. List the arguments for and against this proposition. What, in your view, is closest to the approach taken by the CJEU?