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STUDENT NOTES
Health warning
These notes are for guidance only. They are not a substitute for the recommended
reading and provide only a sketch of a possible answer, as opposed to
comprehensive coverage of the issues.
Advise her.
(b) Is this so notwithstanding that she only works part-time and her income is
supplemented by her son?
In Case 139/85 Kempf, the Court held that a part-time worker whose income was
supplemented by social assistance satisfied the definition of worker, so long as the
work was genuine and effective. On this basis, it appears that Melania will equally fulfil
the criteria as developed by the Court.
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community.’ In Case C-32/75 Cristini, it was held that this includes concessions on rail
travel.
Note also that Art 45(2) TFEU prohibits both overt and covert discrimination on grounds
of nationality. The scheme in question does not overtly discriminate on grounds of
nationality, but falls more heavily on non-nationals due to the residency requirement.
It does not appear that the criteria to justify covert discrimination are satisfied (Case
C-55/94 Gebhard).
Note in particular that Art 27(2) provides that the threat must be a present one, it must
be based on personal conduct of worker, and that a decision to limit free movement
must be proportionate. Art 28 provides that, before deciding to expel, the Member
State must take the worker’s circumstances into account.
NB for permanent residents (generally those who have resided in MS for 5 years),
there must be ‘serious grounds of public policy or public security’ to justify expulsion.
For citizens who have been resident in the Member State for 10 years or more,
expulsion must be justified on ‘imperative grounds of public security’ (Art 28 CRD).
3
Although Melania is not subject to the higher standards of protection since she has not
resided in the UK for the required period of time, it does not appear that her conduct
satisfies the Bouchereau test.
(f) Does Melania enjoy procedural rights in respect of the deportation order?
Art 30 of Directive 2004/38 provides that the citizen is to be notified of a decision to
expel, as well as of possibilities of appealing the decision. The right to appeal or review
the decision is enshrined in Art 31. Should the decision to deport be upheld, Melania
will have a right to apply for readmission after 3 years (Art 32).
Donald has a Russian girlfriend, Vladimira, who has been living with
him since he began his studies. When Vladimira arrived in the
United Kingdom, she was given leave to remain for six months. That
period has now expired, and consequently Vladimira has received
a letter from the Home Office requiring her to leave the United
Kingdom within four weeks.
4
(2) Advise Vladimira whether she would have the right under EU law
to remain in the United Kingdom if she were to marry Donald
(although this would not change her nationality), or whether she has
this right to remain even if she and Donald do not marry.
5
personal circumstances and shall justify any denial of entry or residence to these
people.’
In Case C-184/99 Grzelzcyk, the Court held that ‘Union citizenship is destined to be
the fundamental status of nationals of the Member States’. While this dictum does not
necessarily bear close scrutiny, it is certainly true that EU citizenship has been
deployed to extend the rights to free movement of citizens and their family members
(e.g. Case C-200/02 Zhu and Chen).
The traditional distinctions between different classes of moving citizens are further
blurred as a consequence of the right conferred on all citizens to remain in another
Member State if they ‘have sufficient resources for themselves and their family
members not to become a burden on the social assistance system of the host Member
State during their period of residence and have comprehensive sickness insurance
cover in the host Member State’ (Directive 2004/38, Art 7(1)(b)).