EU Treaty Rights
EU Treaty Rights refers to the rights of every EU citizen (i.e. a citizen of a Member State of the EU) and to EEA citizens to move, reside, work and/or study within the EU.
Once a person demonstrates that they are an EU citizen, these rights are automatically extended to their immediate family members, namely a spouse/civil partner, dependent children, dependent parents and/or dependent grandparents.
Other extended family members may also be the “beneficiaries” of these rights but they are not automatically available to them.
Should an EU citizen wish to reside/work/study in another Member State for more than 3 months, they must apply for a specific type of residence card showing they are an EU citizen exercising EU Treaty Rights. Periods of less that 3 months do not require a specific residence card.
The Court of Justice of the European Union (CJEU) has delivered a vast number of judgments in relation to how Member States should apply EU Treaty Rights rules. The principles set out below cases are of particular importance for EU citizens exercising EU Treaty Rights in Ireland in light of Brexit.
Surrinder Singh C-370/90
This case arose in the UK and has led to the development of a new stream of permissions for UK citizens who resided in another Member State. The CJEU held that the right of free movement included a right of return to the Member State of nationality, and that once a EU citizen had resided in another Member State for 3 months (i.e. without having obtained the specific residence card) this triggered the application of the EU Treaty Rights rule.
O & B C-456/12
This clarified the Singh case by saying that the residence in the host Member State must be a genuine residence for 3 months during which family life must have been strengthened or created. It also stated that the principle of the Singh case was applicable to all EU citizens and not merely “workers”.
This clarified that in order to exercise EU Treaty Rights an element of physical movement is required. In other words the EU citizen must have actually moved from their Member State of nationality to a host Member State. Mrs. McCarthy had dual Irish–British citizenship, but had never resided anywhere but the UK.
This established the principle that non EU/EEA national parent of an EU national child is entitled to reside in the Member state of which the EU citizen child is a national, without the need for a work permit, so as to enable the child to enjoy their EU citizen rights. Additionally, the non EU/EEA national parent cannot be removed from the EU and returned to their country of origin, if to do so would mean that the EU citizen child would also have to leave the EU and thereby be deprived of their EU citizen rights.
It is the EU citizen child and not the non EU/EEA national parent who is entitled to exercise EU Treaty Rights.
Once an EU citizen has resided in a host Member State for a period of 5 years, they are entitled to apply for permanent residence under the EU Treaty Right rules. This permanent residence is not the same as citizenship.
Member States are entitled to restrict the exercise of EU Treaty Rights, but only on a very limited basis, on the grounds of public health, public security (Tzakouridis C-145/09 a Greek national was prevented from continuing to live in Germany following a conviction for drug dealing/trafficking) and public policy (the protection of children, Infusino C-348/09 an Italian national was returned to Italy as a result of evidence that he abuse his partners children).