Residency Rights in the UK under European Union Law - Essay Example

?Residency Rights in the United Kingdom under European Union Law Law Introduction The European court of Justice has always been given the mandate of constructing free movement provisions. However, in the recent past, the scope of free movement of persons has been broadened in an attempt to adopt a non-discriminatory assessment of member state workers. 1 Two theories have been used in an attempt to elaborate on the EU provision of free movement of persons. The discrimination theory aims at eliminating protectionism and ensuring that persons and goods are treated formally and the same way as the nationals of the particular states. The courts should refrain from involving with Community law as long as there is no encroachment of the Community rights of the foreigner, See2. Double burden theory illustrates that there should be set rules that govern the free movement of persons. This theory asserts that regulation should only occur once and no double burden limiting the free movement of persons should be imposed, See3. In this case, Nero is a French man married to Manisha, lives in the UK, graduated in 2006 as a French Pharmacist and though having applied for 10 work positions in the UK has not gotten any interview. Orphelia is Manisha’s great grandmother in the Philippines and desires to come to live in the UK with Manisha but there is fears UK border controls.4 Community Law asserts that the free movement of individuals is one of its fundamental freedoms. This is an essential element of European citizenship and has been described as the most important right for individuals under the Community Law. With reference to worker, this freedom of movement has existed since 1957 when the European Community was founded and is documented down.5 This encompasses the right to seek employment in EU member State and also the right to work in the different member state. Moreover, the article provides the right to reside and remain in a member State on the prospect of looking for employment or actually working in the country. In conjunction, the article provides that equal treatment with reference to working conditions and employment should be provided to the worker in an attempt to make their integration into the Host State successful. This stipulation has been interpreted and generated into the European Court of Justice which embedded the worker concept. This illustrates that Nero being from French which is a member of the EU qualifies as a worker and should thus be bequeathed the rights stipulated in this article as pertains to the free movement of persons.6 The legal foundation of the right to free movement is anchored in the European Union Treaty that creates a market which is internal and lacking barriers as pertains to the free movement of people.7 This is especially with particular reference to the endorsement of the right that every EU citizen has to move freely within the EU territory. However, despite this provision of free movement, it has encountered resistance and there are still aspects challenging the intra-European mobility that are still being perceived in the EU countries. With reference to this treaty, the only free provision of workers that is provided is with reference to workers in the steel and coal industry and not the general workforce.8 With reference to the case presented, Nero has acquired free movement provision since he resides in UK with his wife Manisha yet he is French. However, with reference to his profession (Pharmacist) it is not included in the provision of free movement of workforce and hence explaining the current challenges Nero is facing is search of employment. With reference to Article 18 described above, the advice to Nero is that though there is no restriction of free movement for him, there no provision yet as pertains to his profession since it is not included under coal and steel hence explaining the difficulties in getting an interview of 10 applications he has made.9 In particular 10 Article 18 provides prohibition of any discrimination as pertains to workers of member states on the basis of their nationality. This is made with reference to the remuneration, working conditions, dismissal, unemployment and integration into the profession.11 Consequently, it sanctions the right of the worker to enjoy similar tax and social advantages as its nationals and also to gain entry to vocational schools training. On the basis of this regulation, this provides that Nero being French should be accorded the same employment rights as the British nationals. It is unfortunate that he has to bear the double burden of having French qualifications and lacking an employment opportunity in Britain yet there is provision for free movement of people. Nero can file litigation on the basis of violation of the free movement provision.12 Recognition of diplomas and other professional qualifications in the EU nations have been a progressive process seeking to address each profession at a time. This is aimed in fostering the mobility of workers as stipulated in Article 47 (ex 57). It avows that there is need for countries under the EU to provide a mutual recognition for professional certificates to make it possible for professionals to pursue their professional lives in EU member countries. Pharmacist garnered professional recognition among the last profession with architects and doctors taking the lead compared to physicians.13 Recognition is based on either a diploma in the current state where a foreigner is seeking employment or issuance of an aptitude test as a basis of recognizing the professional qualifications of EU member state individual. Nero being a graduate Pharmacist, his profession is under the professions that garner recognition in the EU. Under the discriminatory theory Nero is facing discrimination in Britain as a result of his 10 applications with no interview, yet the EU treaty asserts that individuals from EU countries are accorded free movement provision as EU member citizens.14 The treaty of Rome,15 has been the most recent directive that was passed in 2004 in an attempt to unify the issue of free movement of persons among EU member countries. The directive has also encompassed third party countries with reference to a spouse or family member of a citizen in EU member country. Manisha is a citizen in Britain, which is an EU member country. However, her great grandmother lives in Philippines and wishes to come and live with her, the only family she has. Philippines is a third party country to the EU countries.16 However, the 2004 directive provided that where movement of persons involved a spouse or family member, the EU member countries should not hamper the movement of these individuals. The directive provided that these individuals are eligible to a passport and the EU country they are going to should not impose requirements like the necessity to learn a language. With reference to the case study, the UK should not deny Orphelia a visa to live with her granddaughter in the UK. Failure to this would be violation of the 2004 directive and discrimination against the free movement of a family member in a third party country to the EU. See 17 Having reviewed that under the third party country EU provision, Orphelia is free to live in EU member States on the basis of family, it is important to elaborate on the provision. Firstly, Orphelia will need to prove that Manisha is her family member and the only family she has hence necessitating the need for her to live in the UK. Moreover, her dependency needs to be evaluated on the prospects that she cannot survive in Philippines without the help of her granddaughter. Since Manisha is a citizen in the UK, she has to be assessed as pertains to whether she works and if she has the capability of taking care of her grandmother once she comes into the UK. Following the fulfillment of these provisions, Orphelia is legally permitted to live in the UK with Manisha, despite Philippines being a third party country to the UK which is EU member State.18 Conclusion There has been modifications in the free movement of persons since its conception in 1957 that are a source of reckon. Nero qualifies equal treatment to any UK citizen on the basis of being a member of the EU states. Consequently, Pharmacy is a recognized profession in the EU member states and thus Nero should not be facing difficulties in getting a job in the UK. The problem might be that Nero is not aware of his right as EU member state citizen. Furthermore, Orphelia, has the right to come and live with Manisha on the basis of being the only family member and also with reference to the third party country provision in the EU provision of free movement of persons. Bibliography CASES Case 120/78, Rewe-Zentrale AG v Bundesmonopolverwaltung fur Branntwein ("Cassis de Dijon"), [1979] Case 11/77, Patrick v Minister of Cultural Affairs, [1977] ECR 1199 ECJ Case C-157/03, Commission v Spain [2005] LEGISLATIONS Article 14 (ex 7 A) Article 18 (ex 8 A) Article 39 (ex 48) Article 45 TFEU Council Directives 85/452 and 453 Regulation 1612/68: Art, 7, n. 1 Treaty of Rome 2004 SECONDARY SOURCES Acierno, S. ‘The Carpenter judgment: Fundamental rights and the limits of the Community legal order’ (2003) 2 8 EL Rev 398. Adinolfi, A. Free movement and access to work of citizens of the new member states: The transitional measures. Common Market Law Review, 42(2), (2005): 469-498. Barrett, G. ‘Family matters: European Community law and third-country family members’ (2003) 40 CML Rev 369. Grawert, R, Free movement of workers: Changing the European society. International Journal of Law and Management, 47(6), (2005): 69-81. Spaventa, E, From Gebhard to Carpenter: Towards a (non-)economic European constitution. Common Market Law Review, 41(3), (2004): 743-773. Tryfonidou, A, In search of the aim of the EC free movement of persons provisions: Has the court of justice missed the point? Common Market Law Review, 46(5), (2009): 1591-1620. Read More