September 20
2021
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Anjum Shabbir
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13th May 2020
Employment & Immigration

Insight: “EFTA Court rules on derived rights of residence under Article 7 of Directive 2004/38 in the EEA context: ‘different legal bases but the same protection'” by Anjum Shabbir

The European Free Trade Association (EFTA) Court provides courts and tribunals in EFTA and EEA countries (Iceland, Norway and Liechtenstein) with assistance to ensure a homogenous interpretation of EEA law and the EEA Agreement.

Today it has handed down its judgment in Campbell v The Norwegian Government (E4-19) concerning the interpretation of ‘derived rights of residence’ under the interpretation of Directive 2004/38 as interpreted under EEA law. It is important to recall at the outset that the Directive was incorporated in the EEA Agreement and adapted accordingly by EEA Decision 158/2007, and that EU citizenship is not a concept recognised under the EEA Agreement (having been replaced with ‘national(s) of EC Member States and EFTA States’, and emphasised in an accompanying Joint Declaration), there also being no parallel under the EEA Agreement for Article 21 TFEU. (It may also be of note that the Annexes of the EEA Agreement do not include Family Reunification Directive 2003/86/EC and Long-term Residents Rights Directive 2003/109/EC). Therefore, EU law and EEA law interpretations of the Directive may diverge.

The case arises as a result of a request for an Advisory Opinion made by the Supreme Court of Norway, concerning how to interpret Article 7(1)(b) and 7(2) of Directive 2004/38 (rights of residence in a host Member State for home nationals and their third country national family members) and related CJEU (especially O and B, C-456/12) and EFTA Court case law (especially Jabbi, E-28/15), in the light of the ‘principle of homogeneity’ under Article 6 of the EEA Agreement, in order to assist the Supreme Court resolve legal proceedings against the Norwegian Immigration Appeals Board, challenging its refusal of the right of residence under an application for family reunification made by a Canadian national married to a Norwegian national.

The EFTA Court has therefore been called upon to interpret the concepts ‘derived right of residence’, ‘continuous residence’, and ‘genuine residence’ under that law, in the EEA legal context.

‘Economically active’ context could apply

It should be noted that in the national proceedings, a case made by the applicant on the basis that the Norwegian national in the case was a worker (that is, economically active) was not given leave to be heard, but that the EFTA Court has readdressed this, finding that the freedom of movement of workers is relevant to consider. Consequently, the judgment also refers to those rights, which include cross-border circumstances where a working home state national lives in one state but works in another, and where third country national family members are entitled to a (conditional) derived right of residence, under Article 28 of the EEA Agreement (suggesting the Norwegian national in this case is a worker, but leaving it for the national court to make the final determination). This is significant as there is closer alignment between the EU law and EEA law approaches to residence rights where the home state national is economically active.

Upholding the EFTA Court’s ruling in Jabbi: ‘derived rights of residence’ apply 

The Court continued with its assessment of the case on the basis that the home state national was not economically active, and has held that Article 7(1)(b) and (2) of the Directive does apply to a situation such as this, in which the EEA national returns to her home state with her third country national spouse, pursuant to Jabbi (paragraph 80). In Jabbi, the EFTA Court held that third country national family members have a (conditional) derived right of residence upon their EEA national spouse’s return to the home state (those conditions being that residence is continuous, genuine, and not an abuse of rights under Article 35 of the Directive). It addressed the arguments submitted that the CJEU’s case in O and B applies (which Jabbi distinguished itself from, or from the perspective others, openly departed from), in which the CJEU held that derived rights of residence in such a case do not apply under the Directive but under Article 21 TFEU. The EFTA Court noted that the concept of Union citizenship is not recognised in the EEA context, and that the subsequent rulings of the Court of Justice upholding O and B were not delivered in the context of EEA law. Therefore, Jabbi had to apply in this case.

‘Continuous residence’ interpreted broadly

The couple in question returned to Norway after a period of time (between 2012 and 2014) during which they lived in Sweden. In that time the Norwegian national moved between Sweden and Norway where she carried out shift work. Initially she spent 7 weeks in Sweden as a jobseeker, and then worked three week shifts in Norway followed by three weeks off, which she spent either in Norway, Sweden or elsewhere, doing so until September 2013. She officially moved back to Norway in January 2014. Therefore the Norwegian Supreme Court also asked for clarification of the ‘continuous residence’ requirement set out in the EFTA Court’s ruling Jabbi.

The EFTA Court has applied a broad interpretation of the notion of continuous residence, by looking at the overall context of the Directive, and finds that ‘reasonable periods of absence which may or may not be work-related’ are allowed, as long as the duration of those periods does not contravene, or are not inconsistent with ‘genuine residence’, and as long as no abuse of rights as laid down in Article 35 has been found. Specifically with regard to the facts of the case it suggested that ‘such working schedules may not be uncommon, and that such absences do not appear inconsistent with the requirements of genuine residence’.

Genuine residence such as to enable family life’ and no ‘abuse of rights’

On ‘genuine residence such as to enable family life in that State’ it held that ‘residence in the host EEA State’ in line with Article 7 of the Directive ‘is evidence of settling there’ and ‘enables the EEA to create or strengthen family life’. In providing clarification with reference to the cases referred to above, Coman (C-673/16) and Article 35 of the Directive on abuse of rights, the EFTA Court responded that just because ‘an EEA national consciously places himself or herself in a situation conferring a right of residence in another EEA State does not in itself constitute a sufficient basis for assuming abuse’.

The judgment therefore applies the ‘principle of homogeneity’ and aligns with EEA law the derived rights of residence of third country national family members of economically inactive (as well as economically active) nationals of Norway, Iceland, Liechtenstein in terms of the outcome reached under EU law, despite EU law doing so by attaching such rights to primary law TFEU rights that have no equivalent in the EEA legal context. For other EFTA Court cases in similar circumstances and involving Directive 2004/38, see E-4/11 Clauder (on Article 16 of the Directive), E-15/12 Wahl, and E-26/13 Gunnarsson (the precursor to Jabbi, also on Article 7 of the Directive).

Read the EFTA Court’s judgment in full here and the press release here.

 

Anjum Shabbir is an Assistant Editor at EU Law Live

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