On the Limits of Judicial Intervention: EU Citizenship and Family Reunification Rights

European Journal Migration & Law, Vol. 13(4), 2011, pp. 443-466.

29 Pages Posted: 20 Sep 2011 Last revised: 28 May 2016

Peter Van Elsuwege

Ghent University

Dimitry Kochenov

University of Groningen - Faculty of Law

Date Written: September 18, 2011

Abstract

This article scrutinies the logic behind the recent judgments of the Court of Justice of the European Union (CJEU) in Ruiz Zambrano and McCarthy focusing on their implications for the right to family reunification under EU law. Specific attention is devoted to the phenomenon of reverse discrimination in the context of the new jurisdiction test established by the Court, which is based on the severity of the Member States’ interference with EU citizenship rights rather than on a pure cross-border logic. EU citizens unable to establish a link with EU law are often subject to stricter family reunification requirements in comparison to their migrant compatriots and even certain third country nationals. It is argued that this situation is difficult to accept in light of the principles of legal certainty, equality and the protection of fundamental rights. A new balance between EU citizenship and Member States’ regulatory autonomy is established but legislative action is required to solve the outstanding problems.

Keywords: EU Law, Family reunification, EU citizenship, Ruiz Zambrano, ECHR, Migration, Deportation, Reverse discrimination, fundamental rights

Suggested Citation

Van Elsuwege, Peter and Kochenov, Dimitry, On the Limits of Judicial Intervention: EU Citizenship and Family Reunification Rights (September 18, 2011). European Journal Migration & Law, Vol. 13(4), 2011, pp. 443-466.. Available at SSRN: https://ssrn.com/abstract=1929765

Peter Van Elsuwege (Contact Author)

Ghent University ( email )

Universiteitstraat 4
Ghent, B-9000
Belgium

Dimitry Kochenov

University of Groningen - Faculty of Law ( email )

Oude Kijk in 't Jatstraat 26
Groningen, 9712 EK
Netherlands

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