The Right to Stay at Home: A Basis for Expanding European Family Rights

In D. Kochenov (ed) EU Citizenship and Federalism: The Role of Rights (CUP, 2015, Forthcoming)

17 Pages Posted: 6 Aug 2014

See all articles by Gareth T. Davies

Gareth T. Davies

Free University of Amsterdam - Faculty of Law

Date Written: August 4, 2014

Abstract

In Ruiz Zambrano the Court found a right for Union citizens to live in the Union. Since the right to live in Member States other than one’s own is long established, and not changed by the judgment, the primary novelty of Ruiz Zambrano is in extending residence rights to include one’s own state – creating a right to stay at home. However, the elaboration of what this right involves is just as important, if less new: the second element of the judgment is the finding that the citizen’s right of residence may create a parallel residence right for members of their family. That occurs when the citizen is so dependent upon these family members that expelling them would compel the citizen to leave the Union too.

Both elements of the judgment are loyal to the Treaty text, consistent with previous case law, and display a conventional idea of citizenship. There is nothing legally radical in the case. However, that does not mean it has no consequences. On the contrary, the question when a citizen is so dependent that they cannot live in the Union without their family is a less coherent and more open one than first appears. It asks courts to make judgments about the intensity of family relationships which will, in some cases, be challenging and disruptive of national law. The fact that those questions can, and sometimes will, be referred to the Court of Justice creates the possibility of a pan-European dialogue about what family is, and when it is needed. Alongside similar judicial conversations inspired by free movement, and by the Citizenship Directive, Ruiz Zambrano facilitates the emergence of a European idea of the family.

Keywords: EU law, migration, family law, free movement, EU citizenship

Suggested Citation

Davies, Gareth T., The Right to Stay at Home: A Basis for Expanding European Family Rights (August 4, 2014). In D. Kochenov (ed) EU Citizenship and Federalism: The Role of Rights (CUP, 2015, Forthcoming). Available at SSRN: https://ssrn.com/abstract=2475847

Gareth T. Davies (Contact Author)

Free University of Amsterdam - Faculty of Law ( email )

De Boelelaan 1105
1081 HV Amsterdam
Netherlands
+31 20 5986303 (Phone)

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