Sample Solution

Charlotte is married to Luis who is from Columbia. He is not an EU citizen, however, he is able to stay and live with Charlotte in London under the status of a ‘family member’. Article 2 (2) of Directive 2004/38 includes spouse in the definition of a ‘family member’. From the facts of Luis’ situation, there is no evidence to suggest that he is working or looking for a job, so I can assume that he is a dependent family member on Charlotte as she is the only one receiving any income. In the case of Centre Public d’Aide Sociale de Courcelles v Lebon , the Court of Justice held that a dependant family member is one who receives support from the EU citizen whether that be finical or non-financial support it doesn’t matter. Article 6 (1) of Directive 2004/38 specifies the right for EU citizens to reside for up to three months is also applicable to non-EU family members in Art 6 (2). Directive 2004/38 establishes the rights of family members to reside with a Union worker. In terms of his rights to free movement as a family member, under Art. 9 (2)of the Directive , he is required to apply for a residence card not more than 3 months from his arrival in the Member State. Residence cards are valid for at least 5 years which would still be in date if he had applied for it. However, the facts do not suggest that Luis has applied for his residence card. Non EU family members who have lived with a Union citizen in the host Member State for 5 years can acquire the right to permanent residency under Art. 16 subsection 2 of the Directive 2004/38 . The right to “reside on the basis of this directive in the host Member State and enjoy equal treatment of the nationals of that Member State” under Article 24 (1) of Directive 2004/38 is extended to family members who have the right of residence which Luis does.

Under Art. 20 TFEU , Bjarne is an EU citizen as he is a Swedish national. He also comes under the definition of a ‘family member’ to Charlotte in Article 3 (2) (a) of the Directive 2004/38 . He is 11 years old and has learning difficulties which means he is a “dependant direct relative” of Charlottes under Article 3 (1) (d) . As he is an EU citizen, he is also entitled to free movement. He has the right of residence in any Member State for up to three months without any conditions. He has been able to stay for the 4 years as he is a dependant family member of Charlottes which means he has the right to stay in London as long as she is. He is entitled to all the rights set out in Article 20 (2) TFEU and 21 TFEU . Most importantly, Bjar