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Case law - Family members

This case concerned persons who are married, but no longer living together. The Court ruled that a marital relationship cannot be regarded as dissolved, as long as it has not been terminated by the competent authority. If persons live separately the marriage is not dissolved, even if they have the intention to divorce at a later date.
Consequently, to qualify for a right of residence as a family member under Regulation No 1612/68 (Article 10), it was not necessary to live permanently with the worker. (full text)

This case concerned the residence rights of unmarried partners. The concept of ‘spouse’ in Article 10 of Regulation No 1612/68 referred to a marital relationship. As a consequence an unmarried partner had no right of residence based on this Regulation.
The social developments of the Member State were invoked in this case. However, the Court ruled that an interpretation of a legal term on the basis of these developments must take into consideration the situation within the whole Union, not just in one State.
Furthermore the Court stated that the right to be accompanied by an unmarried companion is a social advantage and governed by the principle of non-discrimination. It follows that a Member State cannot grant an advantage to its own nationals and refuse it to other EU workers based on their nationality. (full text)

In this case, the parent of a child returned to the Member State of origin. The child could not continue his/her studies in the host Member State because there was no coordination of school diplomas and he/she had no choice but to return to the country where he attended school in order to continue studying. The Court held that in this situation a child of a Union worker retains the status of member of a worker’s family within the meaning of Regulation No 1612/68. (full text)

This case confirmed an EU residence right for the spouse of a national who returns to his/her Member State of origin. This right of residence arises from Union law and prevents a situation of reverse discrimination. This is important since a national could be deterred from leaving his/her country to pursue an activity in another Member State if his/her spouse and children would not be permitted to enter and reside in his/her Member State of origin afterwards. (full text)

The rules on free movement cannot be applied in respect of an EU citizen, national of the host Member State, who has never exercised the right to free movement within the Union, since this is an internal situation. As a consequence, in this situation a member of the family of the worker cannot rely on Union law since the worker has not exercised his/her free movement right. (full text)

This case confirmed that Member States must have regard to EU law, when exercising their powers in the sphere of nationality.
In this case, the family members were dual Moroccan and EU nationals. Since they had been naturalised, they could not rely on their Moroccan nationality to fall under the equal treatment provision on social security in Article 41 EC-Morocco Cooperation Agreement. The term ‘members of the family’ in Article 41 EC-Morocco Cooperation Agreement includes persons having a close family relationship with the worker. This concerns relatives in the ascending line, including those related to the worker by marriage. However, these persons have to live actually with the worker. (full text)

The extra condition of previous lawful residence in the EU restricting the free movement of third-country national family members of EU migrants is incompatible with the text and the aim of Directive 2004/38/EC and with the objective of the internal market.
It is irrelevant whether the marriage was concluded before or after the Union citizen migrated to the host Member State, where the marriage was concluded and whether the third-country national entered the host Member State before or after the marriage. (full text)

In circumstances such as those of the main proceedings in this case, the children of a national of a Member State who works or has worked in the host Member State and the parent who is their primary carer can claim a right of residence in the latter State on the sole basis of Article 12 of Regulation  No 1612/68, without such a right being conditional on their having sufficient resources and comprehensive sickness insurance cover in that State. (full text)

The right of residence in the host Member State of the parent who is the primary carer of a child exercising the right to pursue his/her education in accordance with Article 12 of Regulation No 1612/68 is not conditional on that parent having sufficient resources so as not to become a burden on the social assistance system of that Member State during the period of residence and having comprehensive sickness insurance cover there. The right of residence in the host Member State of the parent who is the primary carer for a child of a migrant worker, where that child is in education in that State, is not conditional on one of the child’s parents having worked as a migrant worker in that Member State on the date on which the child started in education.
The right of residence in the host Member State of the parent who is the primary carer for a child of a migrant worker, where that child is in education in that State, ends when the child reaches the age of majority, unless the child continues to need the presence and care of that parent in order to be able to pursue and complete his/her education. (full text)

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