Another type of ‘Other’ in EU Law? AB (2) MVC v Home Office and Rahman v Secretary of State for the Home Office
| Date | 01 March 2013 |
| DOI | http://doi.org/10.1111/1468-2230.12017 |
| Published date | 01 March 2013 |
Another type of ‘Other’ in EU Law? AB (2) MVC v
Home Office and Rahman vSecretary of State for
the Home Office
Iyiola Solanke*
EU citizenship law has to date paid little attention to the extended family members of Union
citizens, a group mentioned just once in Citizenship Directive 2004/38. This note suggests that
the current EU legal framework gives too much discretion to the member states, providing scope
for the rights of EU migrant workers to be breached with impunity. It also questions whether the
new mechanisms for addressing misapplication of EU law are robust enough to hold national
authorities to account for their treatment of other family members.
INTRODUCTION
More and more citizens are moving across national borders to EU countries other
than their own, where they study, work, live – and fall in love. An increasing
number of couples live in a Member State of which they are not nationals. Out of
the approximately 122 million marriages in the EU, around 16 million (13%) have
such a cross-border dimension. In 2007, out of the 2.4 million marriages in the EU,
they represented about 300,000 couples; this was also the case for 140,000 (13%) of
the 1,040,000 divorces that took place in the EU in the same year.1
AB (2) MVC vHome Office2(AB) tells the story of one such couple: a Bolivian
and a Swede, the pair met in London and had a child together. Their story
falls outside of the mould of recent cases on EU citizenship – juxtaposed with
Zambrano, McCarthy and Dereci3it may initially appear mundane, as it revolves
around the prototype migrant Union citizen: a Swede who lives and works
in the UK. It does not raise any particular issue with regard to cross-border
movement or rights for infant EU citizens. Yet AB highlights the need to think
about third country nationals in EU law and sheds light upon a fundamental
question in EU citizenship law. Scholarship in this area often draws attention to
the right to respect for family life but what do we know about recognition as a
family member – how is the ‘family’ constructed in EU law? This case highlights
the relevance of this question for another type of ‘Other’ – the third country
national who is the co-habitee or dependent of a migrant Union citizen: such a
person is not automatically a ‘family member’ under EU law.
*School of Law, University of Leeds.
1 European Commission Citizenship Report COM (2010) 603 final, Brussels, p6.
3 C-34/09 Gerardo Ruiz Zambrano vOffice national de l’emploi (ONEm) [2011] 2 CMLR 46
(Zambrano), C-434/09 Shirley McCarthy vSecretary of State for the Home Department [2011] All ER
(EC) 729; [2011] 3 CMLR 10; [2011] Imm AR 586; [2011]. INLR 450 and C-256/11 Murat
Dereci and Others vBundesministerium für Inneres [2012] 1 CMLR 45 (Dereci).
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Iyiola Solanke
© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited. 383
(2013) 76(2) MLR 370–400
Two recent cases address persons in such situations. It is noteworthy that both
arose during the same time frame yet went to different courts: AB was decided
in the UK by the Queens Bench on 16 February 2012 without a reference being
sent to the CJEU under Article 267 TFEU; Rahman vSecretary of State for the
Home Office4(Rahman) was sent to the CJEU from the Upper Tribunal (Immi-
gration and Asylum Chamber) just a few days later on 22 February 2012. Despite
the centrality of Article 3(2) of Citizenship Directive 2004/38 to both cases,
neither refers to the other. This may be because AB concerns the misapplication
rather than interpretation of EU law. The cases also focus on different aspects of
Article 3(2): in AB, family membership was sought by route of recognition of a
durable relationship; in Rahman, the relevant pathway was dependency. Both
cases, however, elucidate further the notions of belonging underpinning Union
citizenship by drawing attention to a question that precedes the rights in the
Citizenship Directive: what happens before family membership is determined?
How must a member state behave? The CJEU could not comment on this
question in AB, and the reference under Rahman therefore gave the court an
important opportunity to clarify this important aspect of Article 3(2), in particu-
lar the scope and level of discretion left to the member states and the condition
of its exercise.
Determination of belonging had not previously been a feature of the case law
on EU citizenship: questions focused on those automatically recognised as family
members under Article 2(2) of the Citizenship Directive. The battles of the
Rahman family, Ms C, Mr B and their baby D, with the Home Office make clear
the significance of recognition and belonging for those falling outside of this
provision. In addition, like Zambrano,AB provides insight into the secretive and
mysterious world of national immigration law and its enforcers – the behaviour
displayed in this case by Home Office personnel included genuine mistakes but
also ‘pique and spite’5towards the complainants. Finally, the events in AB raise
important questions about administrative accountability for misapplication of EU
law – the judicial unravelling of the Home Office mistakes highlights the limits
of the remedy of state liability, even given the Köbler principles, and raises the
question of whether the new tools of SOLVIT and EU PILOT are robust enough
to remedy situations where national authorities flout or misapply EU law.
MAKING THE ‘STRANGER’ AT HOME: FROM ‘EXTENDED FAMILY
MEMBER’ TO A ‘FAMILY MEMBER’
Who is at ‘home’ in the EU – who ‘belongs’ to this polity? The idea of ‘home’6
can be described as a ‘space that is psychically and physically safe’,7a world both
4 C-83/11 Secretary of State for the Home Department vMuhammad Sazzadur Rahman, Fazly Rabby
Islam, Mohibullah Rahman nyr.
5AB, n 2 above at [124].
6 T. Morrison, ‘Home’ in W. Lubiano (ed), The House That Race Built (New York: Random House,
1998) 3–12.
7ibid, 10.
Another type of ‘Other’ in EU Law?
© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited.
384 (2013) 76(2) MLR 370–400
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