Questions on Eu Law - Essay Example

?Tina is a British national. While working abroad in the EU she met her boyfriend Sylvester a French national. They moved together to the UK two years ago. Since being in the UK Sylvester has been running his own internet translation service with clients in the UK and abroad. Tina and Sylvester would like to move to the UK Tina’s frail and elderly grandmother. The grandmother is a Somali national and currently lives in Mogadishu. Currently UK government security assessment deems the UK to be at a high level risk from terrorist attack. As a result the UK has severe restrictions on entry of all Somali nationals. UK immigration controls prohibit entry of all non EU citizens who are deemed to pose a financial risk to the social security system.  Answer all of the following questions in turn.  1(a) With reference to relevant EU law explain when a person is established and when a person is a service provider for the purposes of free movement between Member States.  The freedom of movement is one of the four freedoms guaranteed by the European Union to EU citizens. To workers granted freedom of movement, the EC treaty is unequivocally clear that “such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.” There are, however, specific distinctions between the rights and status accorded to “established persons” by virtue of the freedom of establishment and the rights and status accorded to “service providers” by virtue of the rights to provide service. The basis of the rights of accorded to “established persons” and “service providers” are crystallized in the EC Treaty, with the rights of established persons under Article 43, and the rights of service providers under Article 49. Article 43 of the EC Treaty reads as follows: Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State. Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 48, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the chapter relating to capital. On the other hand, Article 49 of the EC Treaty reads as follows: Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended. The Council may, acting by a qualified majority on a proposal from the Commission, extend the provisions of the Chapter to nationals of a third country who provide services and who are established within the Community. The fundamental difference between the freedom of establishment and the freedom to provide services with respect to nationals of an EU member state working in another EU member state is that the former contemplates “permanent installation” in order to pursue an economic activity, whilst freedom to provide services means the freedom simply to perform services for profit without the primary place of business being in the country where the services are being performed. However, both freedoms require that the country in which the services are being rendered impose no discrimination on the individual and furthermore, that the authorities and the courts country in question amend its domestic legislation and policies so that it conforms to the treaty standards. A key distinction is that there must be a contribution to the economic life of the host state, in the case of established persons. As stated in the case of Gebhard, ([1995] ECR I-4165.25) “The concept of establishment within the meaning of the Treaty is therefore a very broad one, allowing a Community national to participate, on a stable and continuous basis, in the economic life of a Member State other than his State of origin and to profit therefrom, so contributing to economic and social interpenetration within the Community in the sphere of activities as self-employed persons.” If there is no such participation, or if the participation is not on a stable and continuous basis, then it cannot be said that establishment attaches. 1(b) Advise whether on the facts Sylvester is established or a service provider for the purposes of EU Law.  I would argue that Sylvester is an established person and not merely a service provider to the purpose of EU law. In the case of Factortame ([1991] ECR 1-3905.20), the concept of establishment involves “the actual pursuit of an economic activity through a fixed establishment in another Member State for an indefinite period.” The case of Sylvester appears to comply with the elements in this definition. First of all, he has an internet translation service with presumably a fixed establishment that houses the physical operations of the said translation business. Second he is in pursuit of an economic activity because the manifest intent of this establishment is to earn profits by offering his services to UK nationals and other people. Third, there is no term or limit to the period with which he is to conduct his business, hence it can be said to be for an indefinite period. Given this, I have come to the conclusion that Sylvester is an established person for the purpose of EU law and thus can be accorded all the benefits therewith, including most importantly, the right against non-discrimination. Verily, this right against non-discrimination is clear that “the rules regarding equality of treatment forbid not only overt discrimination by reason of nationality or, in the case of a company, its seat, but all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result.” (Case C-1/93 Halliburton [1994] ECR I-1137 §15). 2 With reference to EU law on cross border movement and the rights of families advise if Tina’s grandmother can enter and reside in the UK.  Tina is a UK citizen and she wants to move her grandmother to the UK to live with her. Hence, UK immigration law applies and there is no cross-border component, although of course, because the UK is a member of the European Union then to a great extent, its laws are informed by the European Union. Article 8 ECHR50 embodies the right to a family life and family reuinification. Article 8 reads as follows: 1. “Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” There are many questions and issues that Tina has to face before she is to be allowed to bring her grandmother inside the UK. First of all, it is not clear if Tina and her grandmother had a prior relationship before to establish close family ties. Have Tina and her grandmother adequately been able to form a familial bond sufficient to sustain a conclusion that they had been able to develop a “family life”, which could serve as a a basis for a claim of rights? Second, is the quality of life of the grandmother at a point of deterioration wherein granting her leave to enter the UK is the only compassionate solution? Third, is Tina her primary caregiver and will she not have access to good and efficient healthcare if she remains in her hometown in Mogadishu? The definition of “family life” has been much contested and subject to debate. But what Tina can do is argue that the definition of “family life” has been held by European jurisprudence to include the relationship between grandparents and grandchild, (as well as relationships between nephews and nieces, even foster families) for as long as the sponsor – in this case Tina – can prove “strong emotional ties” (Abdulaziz, Cabales and Balkandali v UK, ECtHR, judgment of 28 May 1983. Secondly, she may also argue on “dependency” citing the case of Kugathas (Court of Appeal, 31. Kugathas [2002] EWCA Civ).and state that her grandmother is very frail and is in dependent on her for her care and well-being. It must be remembered that a decision on the merits of the case is given on a case-to-case basis and Tina must be able to prove that indeed, her grandmother’s personal well-being is at stake if she is not allowed to come to the UK to be with Tina. In case law, specifically the case of Huang & Kashmiri v the Secretary of State for the Home Department, the ruling made by the House of Lords was that the fundamental point of inquiry that should inform the decision is -- “whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighting in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8” Should there be a reason to bring suit against the UK in the future, it is pertinent to remember that the UK is bound by Article 14 ECHR50, which states that all individuals who are covered by the said statute must “be secured without discrimination [sans distinction aucune] on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. Failure of the UK to uphold this makes it liable for breach before the European Courts. 3. Explain and advise on any right under EU law the UK has to exclude the grandmother from entering and residing in the UK. Many things must be taken into consideration. Indeed, the UK may be bound by the policies ensuring the freedom of movement and the right to family reunification but this does not mean in any way that the freedom is absolute, nor that the State cannot regulate who comes in and out of its borders if its security and public safety are at stake. States may, in exceptional circumstances, refuse entry to nationals of non-EU states who are family members of EU citizens if such entry compromises the welfare of its own community. Indeed, “States enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention [ECHR50] with due regard to the needs and resources of the community and of individuals” (Abdulaziz, Cabales and Balkandali v UK, ECtHR, judgment of 28 May 1983). This is as long as the state can prove that the actions taken were both proportional and justified to the perceived security threat. In the case at bar, it is clear that there is little chance that a frail and elderly grandmother can pose a threat to the UK, even if technically she is a citizen of Somalia and the security advisory was issued against all citizens of the country. Such security interests must be balanced with considerations of humanity and compassion. In the first place, it is highly doubtful whether the test of proportionality will be met in this case. Barring the grandmother from entry (and denying a UK national opportunity to spend time with her grandmother in possibly the twilight years of the latter’s life) because of a security threat seems an issue of disproportionality. It is difficult to imagine that a frail old woman would have full mobility and go wherever she wants to go, let alone carry a gun or detonate a bomb. There seems to be no cogent reason why she would be denied entry into the UK on those grounds. As long as Tina can prove that her grandmother is dependent on her, that these are “exceptionally compassionate circumstances” that warrant looking beyond the security regulation, and that there will be no recourse to public funds, the courts should favor the entry of Tina’s grandmother. Indeed, that is the spirit that animates the principles of the European Union. REFERENCES Abdulaziz, Cabales and Balkandali v UK (Application nos. 9214/80; 9473/81; 9474/81). Factortame Ltd & Ors V Secretary Of State For Transport. ECJ case C-213/89, ECJ decision dated 19th June 1990 followed by UK House of Lords ruling dated 11th October 1990. Reported at [1991] 1 All ER 70. Halliburton Services v Staatssecretaris van Financien [1994] ECR I-1137 Huang (FC) (Respondent) v. Secretary of State for the Home Department (Appellant) and Kashmiri (FC) (Appellant) v. Secretary of State for the Home Department (Respondent) (Conjoined Appeals). [2007] UKHL 11, [2007]  Kugathas v Secretary of State for the Home Department, Court of Appeal - Civil Division, January 21, 2003, [2003] EWCA Civ 31,[2003] All ER (D) 144,[2003] INLR 170 Reinhard Gebhard v. Consiglio dell’Ordine degli Avvocati e Procuratori di Milano, November 30, 1995, 1996 E.C.R. 1-4165. Read More