Family Rights for Circular Migrants and Frontier Workers, Annotation on O and B (C-456/12) and S and G (Case C-457/12)

Abstract

The O and B (C-456/12) and the S and G (C-457/12) annotated here seek to clarify the law in relation to the family rights of own citizens when returning to the Member State of origin (circular migration); or when exercising the rights to free movement in another Member State whilst residing in the Member State of nationality (frontier migration). This is a complex area of the law in a political minefield: the Court has, broadly speaking, been generous with the rights of family members; it is sufficient here to recall the case law on the derived right of residence of parents of migrant children in education. Yet, the cases annotated here are difficult because they are at the very boundary between national and European law: indeed it is this boundary that the Court was asked to clarify. In this respect, it is clear that Member States wish to retain regulatory prerogatives in relation to the rights of family reunification of own citizens: it is not by coincidence that Article 3(1) Directive 2004/38 provides that the Directive can only be invoked against a State different from that of nationality. However, if the political will is clear, the legal situation is more complex since, pre-Directive 2004/38, the Court had already declared that Union citizens could invoke the Treaty against their State of nationality when they establish a cross-border element; and that the refusal to grant family reunification rights could be construed as a barrier to movement. Here, therefore, the Grand Chamber had to elaborate on the extent to which the primary Treaty provisions grant rights to returning nationals and to frontier workers, that is to say it had to elaborate on the conditions necessary to invoke the Singh and the Carpenter doctrines respectively. Both the Singh and the Carpenter doctrines have proven to be very contentious with the Member States; in particular, some governments do not welcome further incursions in their migration policies. Furthermore, following the introduction of Union citizenship it has become easier to satisfy some cross-border requirement: what then if Union citizens tried to rely on those doctrines too easily, without having established proper economic/cross-border credentials? The national family reunification regimes would be directly undermined, and indirectly harmonised, through the ‘clever’ exploitation of EU law. This is the problem that the Court seemingly attempted to solve in the rulings in questions. And yet, the carefully tailored solutions seem to fit no one – far from clarifying the scope of application of the Carpenter and Singh doctrines, and the reasons underlying them, it creates a system which is both confused and legally irrational.