this is what happens when a worker has been in a member state for a period and wishes to remain
article 45 (3) TFEU
right to remain after a time
applies to members of the family even if the worker dies
freedom of movement shall be secured. this entails the abolition of any discrimination based on nationality as regards employment, remuneration and other conditions
this is subject to restrictions on public health, national security
right to accept jobs
right to seek jobs
right to reside after having been employed subject to conditions
article of directive 2011
employment and equality of treatment
worker who is a national. he may not be treated differently from members of that nation on any respect
he can get reinstatement or re employment
enjoys same social and tax advantages as national workers
article 12 – 2004/38
rights of residence
retention of this right in the event of death of the worker or departure of the worker
- this does not impact on the right of residence
Union citizen’s death does not take away right of residence for non citizen family members who have been living there for over a year before the death
all Union citizens can live in another member state for over 3 months if they are workers or self employed or have sufficient means not to become a burden and have comprehensive sickness insurance study or are enrolled on a course
before acquiring permanent residence it is subject to the requirements of being workers or having sufficient resources not to need social assistance
members retain right of residence on a personal basis
Baumbast – this is a case of a German who came to the UK in 1990. Father of a family lived with his Colombian wife. They had two daughters. Older daughter was a step daughter – Colombian only. The younger was German-Colombian
the man was working. 1993.. worked outside EU..
1995 wife applied for indefinite leave to remain
she appealed. ECJ said gave her the right to stay despite the fact that her husband was no longer there
social assistance criteria must be same for other EU citizens as host state nationals.
article 13 2004/ 38
divorce or end of partnership
family members can stay after this
right of residence.
divorce, annulment or termination of a registered relationship has no effect on residency.
before getting right of permanent residence the main worker needs to show he is a worker or is financially independent
article 14 of 2004/ 38 directive.
retention of the right. They can stay so long as they make no recourse to public funds
in specific cases where there is a doubt about whether a citizen or family members satisfy the conditions then the state can verify whether the conditions are fulfilled.
these checks must not be systematic – i.e. against all people from a certain state
no explusions of workers or job seekers – so long as they provide evidence of seeking a job and have a genuine chance of being hired
see Antonissen – Gustav Antonissen was a Belgian. challenged a deportation order after he was convicted of possession of cocaine. Had sought work for 2 years. The UK tended to expel people after 6 months joblessness.
ECJ had a rule referred to it. job seekers are protected for a while. ECJ said 6 months was sufficient. 6 months can be extended if the person is still seeking work
Lasalle case – court said it is v important to have the right to
Union citizens and their kin
Union citizens who have resided legally for 5 years shall have permanent residence. this is not subject to being employed or seeking work. This applies to kin who are not members of an EU state
sowolkovski and sezer
article 7 para 1.
continuity of residence is not effected by temporary absences of under 6 months. or one absence of 12 months for a good reasons such as pregnancy, study etc… or compulsory military service
right of permanent residence is lost only by absence for over 2 years
retirement? Article 17. exemptions for persons no longer working
para 1. derogation – right of permanent residence
shall be completed by workers or self employed persons have reached age for pension
workers who take early retirement so long as they lived there wfor at least 3 year and worked for 1 year or more
age conditions usually deemed to have been met at 60
no condition imposed as to length of residence in the case of incapacity.
for entitlement to right referred to – periods of employment spent in member state shall be regarded as having been spent in the host member state
involuntary unemployment, periods not worked not of the person’s own making shall be regarded as periods of employment