Protecting EU Citizen Minors' Right to Identity in the Transnational Family Context

Abstract

INTRODUCTION This chapter considers how living in a transnational context might affect the identity of children who are EU citizens and how EU law protects their identity against Member State (MS) measures that could threaten its integrity and cross-border continuity just because of the children's transnational situation. The key question is whether, despite the lack of a specific competence, the EU legal framework provides effective protection for constitutive elements of children's identity in transnational situations and, then, under which circumstances this legal framework applies to prevent national measures from jeopardising that identity. In answering this question, this chapter goes beyond the traditional approach that circumscribes research to the question as to how the denial of recognition of personal and family status in cross-border situations could jeopardise people's identities within the EU. First, the traditional approach considers just cross-border situations, i.e. in which the exercise of free movement rights within EU territory give rise to issues affecting identity, whereas this chapter also considers situations in which a static EU citizen minor invokes the right to reside in and to not leave a MS territory. Moreover, the approach here adopted demonstrates that, even when dealing with cross-border situations, children's identity can be affected in various ways beyond the non-recognition of family status and, notably, the denial of the right to family reunification (with a certain family member). Ultimately, this chapter traces the evolution of the CJEU's approach to the issue; it began as an ‘all about internal market or migration’ approach and then became an approach also significantly based on fundamental rights. IDENTITY AS A FUNDAMENTAL RIGHT UNDER INTERNATIONAL AND EU LAW Issues of ‘identity’ can arise on numerous grounds – nationality, gender, sexuality, ethnicity, family relationships and so on – relating to the concrete, unequivocal circumstances of someone's personality and social life as cultural, professional, religious, political and social experiences. Starting from birth, an individual's identity is formed and preserved by registration as somebody's son or daughter, the bestowal of a name and the acquisition of State citizenship. Then, as an individual develops a personality, enters social groups and gains various social experiences, identity becomes more complex, needing broader legal protection from public or private interference.