Monthly Archives: December 2020

EU Rights Clinic focusing on systematic breaches of EU free movement rights

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A re-orientation towards strategic litigation and advocacy efforts has been underway at the EU Rights Clinic since 2019. The aim is to focus our efforts on more targeted action against systematic breaches of EU free movement rights by national authorities which create visible and hidden barriers to European citizenship rights.

As a result of this change in focus, a request for individual advice will only be taken up where there is a clear opportunity for strategic litigation or to support on-going advocacy efforts. All other requests for legal assistance are now referred to Your Europe Advice in the first instance.

Strategic Litigation

The objective of strategic litigation is to bring cases before the national courts – wherever possible seeking the intervention of the EU Court of Justice – to challenge systematic breaches of EU free movement rights committed by the Member States.

The cases taken on by the EU Rights Clinic tend to represent specific instances which are reflective of a wider pattern of systematic administrative or judicial practices that obstruct or restrict the exercise of free movement rights of EU citizens and their family members.

The Clinic currently has six live appeals pending before the Belgian, French and UK courts.

Three of these cases are on final appeal before the Belgian Council of State.

Examples of on-going strategic litigation undertaken by the EU Rights Clinic include:

  • Jobseekers: challenging an expulsion order issued against a Greek citizen on the basis that the person did not find work within five months of his arrival in Belgium. The case relates to the length of time which a jobseeker should be permitted in order to find work as well as challenging the limited scope of judicial appeals in residence-related cases. The case was filed in 2016 before the Belgian Council for Alien Law Litigation and subsequently appealed before the Belgian Council of State in 2018. The case has been referred to the EU Court of Justice for a preliminary ruling in Case C-710/19 G.M.A..
  • Family reunification: challenging a refusal to grant a residence card to a French partner of a Belgian citizen on the basis that the couple did not have sufficient resources. The case focusses on the failure of the Belgian Immigration Office to make an individual assessment of the couple’s resources. The case was filed in 2017 and is pending before the Council for Alien Law Litigation.
  • Permanent residence: challenging a refusal by the French authorities to grant a permanent residence card to a British citizen. The case relates to the imposition of a minimum resource requirement on a self-employed person. The case was lodged in 2018 is pending before the Administrative Tribunal in Rennes.

Further opportunities for strategic litigation which have been identified include national practices that impose a narrow definition of the status of a worker (particularly part-time workers) or a narrow interpretation of how jobseeker demonstrate a genuine chance of being engaged, as well as the refusal to allow homeless persons to register and the refusal to accept permanent residence status regardless of possession of a residence card. It is also anticipated that future strategic litigation efforts will extend to post-Brexit rights of British citizens residing in the EU and EU citizens in the UK.

Advocacy efforts

The objective of the Clinic’s strategic advocacy efforts is to encourage the EU institutions to monitor and prosecute systematic breaches of the EU rules on the free movement of persons.

The Clinic continued its advocacy efforts in respect of the following cases:

All of the above petitions were also the subject of formal complaints to the European Commission requesting the launch of formal infringement proceedings under Article 258 TFEU against the Member State concerned.

Hearings were last held by the European Parliament in October 2019 in which all petitions submitted by the Clinic were discussed. Following debates, the Committee on Petitions resolved to keep every petition open. The Committee also agreed to write to the national governments to enquire what is being done to resolve these issues. Attendance of hearings in person in 2020 has been suspended due to the COVID-19 pandemic.

Future advocacy efforts will relate to on-going investigations being conducted by the Clinic, including breaches of the Withdrawal Agreement by the UK and other Member, EU data protection laws as regards mobile EU citizens’ rights and breaches of the simplified visa rules which should benefit their non-EU family members by several EU member states.

Research, outreach and dissemination

The Clinic is currently involved on a research project examining residence formalities in Belgian municipalities on behalf of the Belgian federal migration agency, Myria.

In addition, the work of the Clinic has featured in an article authored by the Clinic’s founder entitled “EU Citizens’ Rights in Practice: Exploring the Implementation Gap in Free Movement Law” which was published in the European Journal of Migration and Law, one of the leading academic peer-reviewed publications in this field of EU law.

The Clinic continues to get involved in outreach efforts. Recent activities include presentations at AMA (the Belgian federation for homeless shelters), the Civic Observatory on the Rights of EU Citizens (CORE), the ELSA summer school in migration law held at the University of Kent, the Università degli studi di Palermo and Equinet (the European network of equality bodies).