question 8. EU. students’ rights.

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LA3024 EU law 8 Question 8 Elisabeth is a Dutch national working as a secretary in Livorno, Italy since October 2014. Her son, Koen, is enrolled in the University of Florence, where he is studying history of art. Koen decides to apply for a ‘scholarship of excellence’ offered by the School of Arts to students according to their grades, but is rejected because he is not of Italian nationality.

Elisabeth’s partner, Louise, joins them in December 2014, after quitting her job in The Hague and selling all her property. She decides to register with the immigration office immediately, but is rejected because she cannot provide a certificate of employment. She is told that if she does not find a job in three months’ time, she has to go back to the Netherlands.

Louise is trained as a nurse but all her applications to several hospitals in Livorno and Florence failed, because she cannot speak Italian.

While coming back home one evening after a party, Elisabeth and Louise are stopped by the police who finds marijuana in their car. They are prosecuted for consumption of illegal substances, facing three months imprisonment and expulsion from the Italian territory.

Advise Koen, Louise and Elisabeth.

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Workers get the same rights in another member state as nationals of the said state. This is as per TFEU. Cf Grzelszyk v Centre Public pour l’aide Sociale 2001. Students do not get this treatment. Bidar and Forster also reached the same conclusion. However, Forster said if a student showed a high degree of integration then he or she should be eligible for a scholarship. He has been there only a year so is unlikely to qualify. However, he is doing a course of training so a directive will help him.

Blaizot v University of Liege can help him.

Louise can use her Dutch employment certificate. The rule about providing an employment certificate is pursuing a legitimate aim but it can be achieved by using the Dutch documentation. It is overly onerous to require an Italian one.

Language tests are only allowed if strictly necessary. Many EU nurses practise in other countries without being able to speak the language.

Her qualifications as a nurse will be recognised unless they are well under the Italian standard which is very unlikely.

Baumbast v Secretary of State for the Home Department can be cited to let them stay.

Explusion from Italy for possession of cannabis is disproportionate. The Orphanopolous case can be cited. It is a legitimate aim to keep nationals of other states out for reasons of public safety. They will almost certainly be allowed to remain in Italy. Even people convicted of murder in other EU countries have been allowed to move to another. These people can use their Charter of Fundamental Rights entitlements. If one is to be deported the others can plead the right to family life. Zhu and Chen 2004 will also be instructive. So will Ruiz Zambrano where even someone who was an illegal immigrant and non EU citizen was allowed to stay for family reasons.

Articles 20 and 21 TFEU work in favour of the trio. They have the right to family life. A lesbian couple have the same rights as a straight couple.

Directive 2004/38 allows nationals to live in other states so long as they are not a burden on the state. It says nothing about same sex couples. The case law is now very favourable to gay couples.

The couple will win but the student might not.

 

 

 

 

 

 

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General remarks This is a question about the free movement of workers, citizenship and the impact of the Charter of Fundamental Rights. Law cases, reports and other references the examiners would expect you to use

Case C-184/99 Grzelczyk v Centre Public d’Aide Sociale [2001] ECR I-6193; Case C-482/01 Orfanopoulos [2004] ECR I-5257; Case C-413/99 Baumbast v Secretary of State for the Home Department [2002] ECR I-7091; Case 200/02 Zhu and Chen [2004] ECR I-9925; Case C-34/09 Ruiz Zambrano; Directive 2004/38;

Charter of Fundamental Rights. Common errors Analysing one or two factual situations only. Not discussing citizenship or the right to family life. A good answer to this question would… Regarding Koen, the case law on students and citizenship rights such as Grzelczyk, Bidar and Forster is relevant.

Elizabeth is an EU national working full time. Member states are of course entitled to deport nationals on specific grounds such a ‘serious threat to public security’. In this case you should discuss first of all whether the conduct of Elizabeth – a migrant worker – could be considered to fall within the definition of serious threat to public security (see the case law of the Court – such as Orphanopoulos) and whether the deportation is proportionate. Then discuss the position of his family members under the Directive that extends workers’ protection to their family. You could also refer to the citizenship provisions (Articles 20–21) and the case law of the Court in judgments such as Baumbast or Zhu and Chen.

The question of same sex partnership should also be analysed. Directive 2004/38 is basically silent on the point so you might need to discuss whether same sex partnership should fall within the scope of the Charter rights or the prohibition on discrimination on sexual orientation.

A specific point for Louise is the question of language requirement, which should be assessed in the context of the case law on free movement of workers. Student extract [Discussion on the use of Articles 20 and 21 TFEU in education]

For instance in the case of Blaizot v University of Liege, the ECJ held that university Examiners’ reports 2015 9 education which provides for specific training would be a form of vocational training. Since Koen enrolled in a university and the course of study was in history if art it may be argued that this provides for an era of specific training. His enrolment could also qualify under part 1 of art 7 (1) (c) of the Directive. [..]

The issue of his rejection for a scholarship remains. In Forster the ECJ held that member states can limit study grants to those who have shown a sufficient degree of integration into the host member state.

Considering that Koen had only been in Italy for less than a year, (since October 2014) it may be argued that he has not sufficiently I integrated in the host MS and the refusal to grant a scholarship maybe acceptable. However in Bidar the ECJ held that although the MS have the power to limit the grants to those students sufficiently integrated, a blanket prohibition would be accepted as it would men that no students would qualify [moves to develop this argument].

Comment on extract The style is extremely concise but all the relevant points are examined. The use of case law is very good. In particular, as the question asks the candidate to advise several individuals, the candidate rightly decided to present to the clients all possible solutions in particular citizenship rights and secondary legislation. The analysis of the legal situation of Koen is very good as all the relevant authorities are well used, in particular the case law on students’ mobility is properly used and the candidate manages also to critically discuss some possible frictions in the case law of the Court itself.

This extract shows that answers to complex problem questions can be concise and exhaustive at the same time. The mark is in the mid/upper 2.1 range. Interpretation of the question: very good Relevance of the answer to the question: very good Substantive knowledge: very good Use of authorities: excellent Articulation of argument: good Accuracy of information: good Clarity of expression: good Legibility: good

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About Calers

Born Belfast 1971. I read history at Edinburgh. I did a Master's at UCL. I have semi-libertarian right wing opinions. I am married with a daughter and a son. I am allergic to cats. I am the falling hope of the not so stern and somewhat bending Tories. I am a legal beagle rather than and eagle. Big up the Commonwealth of Nations.

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