Disputed Issues and Case Law
While the directive is visionary and has far reaching implications, it is also the product both of a historical development and of conflicting interests. So it is not surprising that it contains unclear requirements and sometimes even contradictory statements, that require further interpretation. The main open questions are presented below.
Does the directive apply if a family member is currently outside of the EEA, or is illegally present in the EEA? The text of the directive seems to imply this, but there is also legal precedence to the contrary. The ECJ has passed a number of unclear judgements on this issue, which leaves a degree of discretion in the implementation. In the Akrich case, a remark limits the applicability to legal residence of the EEA. However, in the MRAX case, the unconditional right of family reunion is reiterated for spouses. In the Metock case, the ECJ has ruled that the non-community spouse of an EEA citizen can move and reside with that citizen in the Union without having previously been lawfully resident in a member state.
Does a residence card from one state serve as a visa for another? Again the text of the directive implies this, but it is not made explicit. Within the area of the Schengen Agreement this is not an issue, but the UK does not recognise cards issued by other member states. As of December 2008 five Member states have not transposed the Directive Article 5(2) correctly.
What are the rights of a separated spouse before or during divorce? While the directive says that the family member is covered until the decree absolute is issued, the rights can be difficult to use. Without the cooperation of the EEA citizen, or if the EEA citizen leaves the country, the non-EEA spouse is left in a legal vacuum.
In which circumstances can the right of free movement apply to the home country of the EEA national? In the case of Surinder Singh, the ECJ rules that a worker can bring his spouse back to his home country after working in another EEA state for at least 6 months. However, this judgement was based on previous legislation, and it is unclear whether it also applies to more recent treaty rights.
Read more about this topic: Directive 2004/38/EC On The Right To Move And Reside Freely
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