Juanita is a Colombian citizen which is not a member state of European Union (EU). Consequently, she does not have any right on her own status under European Law (EU). However she is married to Roger who is a British citizen. As a British citizen Roger is also citizen of the European Union. Article 20(1) Treaty on the Functioning of the European Union (TFEU). Juanita can claim certain rights under EU law as Roger’s spouse. So, Roger’s status and rights need to be determined. As a European Union citizen Roger can move to any member states of EU and take up employment. Article 45 of Treaty on the Functioning of the European Union (TFEU) provides, “freedom of movement for workers shall be secured within the Union”. In “Lawrie-Blum” the European Court has laid down three essential characteristics for a European citizen to be recognised as a worker, which are: S/he is providing some type of service, under the direction of another person and in return for remuneration. We can assume from the fact that he is working full time for the University. From the given fact we can say that Roger fulfils these criteria and therefore he is a worker. Article 7(2) of the Directive 2004/38 provides that worker’s family members, irrespective of their nationality have the right to accompanying or join with the worker in the host country if they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State.
Article 2(2) of the Directive 2004/38 provides that family member includes spouse. In State of the Nederland v Reed it has been decided that ‘spouse’ refers to genuine marital relationships only. It is immaterial where or when the marriage was solemnised.
Article 10 of the Directive 2004/38 provides that, on the application a non EU family member of a Union citizen, the host state has to provide a "Residence card of a family member of a Union citizen" within six months. The family member has to provide a valid passport, a document attesting to the existence of a family relationship or of a registered partnership and the registration certificate or, in the absence of a registration system, any other proof of residence in the host Member State of the Union citizen whom they are accompanying or joining.
Article 23 of the Directive 2004/38 provides that “Irrespective of nationality, the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or self-employment there”. From the above mentioned treaty articles and cases it can be argued that Holland is under treaty obligation to provide Juanita "Residence card of a family member of a Union citizen" and allow her to take up employment. Juanita and Roger have to show documentary evidence that Juanita would not be a burden on Holland’s social assistance system during her stay and she has comprehensive sickness insurance cover in Holland. Juanita and England visa: If Juanita apply for entry to England while Roger is working in England and has not moved to any other EU country to exercise his right of free movement than they cannot invoke EU law. This is a pure internal situation and England’s immigration law will be applicable. However, if Roger move to Holland and bring Juanita there to join him and then on returning to England they can invoke Art 45 of TFEU. The purely internal rule mentioned above does not apply where a person has exercised his/her rights of free movement, by working on other member state and then ‘returning’ home. Article 35 of Directive 2004/38 provides “Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience.”
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