The Consistency of EU Law rests upon the Fundamentals

In the case of C-93/18 Ermira Bajratari v Secretary of State for the Home Department, the Court of Justice of the European Union interpreted Article 7(1)(b) of Directive 2004/38, to include income of illegal employment to constitute as sufficient resources so long as the Union Citizen has access to the resource, to prevent becoming a burden on the social assistance system of the host member state during their residency. A member state may be inclined to exclude illegal work as it risks the Union Citizen becoming a burden to their social assistance system, it would be disproportionate as it would detract from the European Economic Area national minor’s fundamental rights, including free movement under Article 21 of the Treaty on the Functioning of the European Union as the legality of employment is not the objective of the Article. The CJEU stated, the only requirement to fulfil is that the Union Citizen child has the resource at their disposal. The CJEU expressed that there is no requirement that the only resource of the parent of Union Citizens derived solely from lawful employment. Thus the application of Chen is fulfilled, and the parents should obtain residency. Regarding this decision, it shall be argued that the CJEC was correct in their judgement as it maintained continuity regarding the free movement of individuals, union citizenships, and their fundamental rights of protection.

These are the case facts: The Bajrataris were married, non-EEA nationals. Mr Bajratari previously held a residence card from his previous relationship, and while the card was expired it was never revoked. The Bajrataris had three children, two of whom held Irish nationality. Mr Bajratari was employed at times without his residency card and continues to be the family’s primary source of income, although his employment is illegal. Mr Bajratari paid taxes, and there is no evidence to suggest they required social security assistance, ergo were never a burden to the state. When Mrs Bajratari applied for residency as the primary caretaker for the children, she was denied residency despite fulfilling the requirements in the Chen application. The United Kingdom argued that Chen was not fulfilled under Article 7(1)(b) of Directive 2004/38, where a Union citizen must have sufficient resources. The United Kingdom argued that the resource was obtained illegally ergo, not sufficient, and was formally rejected on the grounds of their public policy.

The CJEU ruled with continuity of EU law principles, when interpreting Article 7(1)(b) of Directive 2004/38, and rejecting the United Kingdom’s argument of rejecting their application on the grounds of public policy.

The importance of interpretation of this Directive is that it is a prerequisite for Article 21 of the TFEU, which provides the right of Union Citizen to reside in the territory of a host member state. By fulfilling the Chen application, this Directive would grant residency to family members without the Union Citizen triggering the cross border element. The United Kingdom’s interpretation of the Directive prevented the Bajratari children from extending their right of residency to their parents. In interpreting “sufficient resources” from Article 7(1)(b) of Directive 2004/38, the CJEU referred to a previous ruling from Rendón Marín, C-165/14EU:C:2016:675, paragraph 48. This ruling explained that EU law does not have any requirements as to their origin inter alia by a third-country national who is a parent of the Union Citizens who are minors. In maintaining consistency, the CJEU reaffirmed to Singh and Others, C-218/14, EU:C:2015:476, which explains the availability of the resource is more important than how it is obtained. Meaning the resources obtained by a third-country national parent in a host state can be relied upon. The CJEU’s interpretation is that there is no requirement for “resources” under Article 7(1)(b) of Directive 2004/38. The CJEU was explicit that the only requirement is that the Union Citizen child has the resources at their disposal.

The CJEU acknowledged that the resource by illegal work, bears the risk that should the sufficient resource be lost, then the Union Citizen Minors would become a greater burden to the social assistance system. They ruled that while a member state may be inclined to exclude illegal income as reasons aforementioned, to introduce requirements for resources, would be disproportionate and would interfere with the right of free movement of an EEA national minor, under Article 21 of the TFEU and that such requirements would detract from the objective; emphasizing that illegal work cannot be excluded.

The Court related Article 7(1)(b) of Directive 2004/38 to the Bajrataris. Although their Union Citizen minor has relied on resources obtained by the employment of a third-State national parent without a residence card and work permit, the family was able to support themselves without relying on the social assistance system of the Member State. The Bajrataris proved they would not be a burden to the state. Therefore the public finances would be protected.

The CJEU ruled on the United Kingdom’s rejection of the Bajrataris on the grounds of public policy. They stated rejection on the grounds of public policy is only implemented if there is a genuine, present, and sufficiently serious threat affecting a fundamental interest of society. Due to its serious nature, it should be interpreted strictly, citing *C-304/14, EU:C:2016:674* as their source.

In reviewing this case, the decision was consistent with EU law principles of free movement of individuals, union citizenship, and their fundamental rights of protection.

Considering the free movement of individuals, the CJEU holds the importance of pursuing the objective of Article 21 of the TFEU. The court recognized the principle of the right of residence from Article 21 preconditioned from the limitation from the Directive, specifically as what constitutes as “sufficient resources” to prevent the Union Citizens from becoming a burden to the host member state. The court specified that there are no requirements for “sufficient resources” except that the resource is at the disposal of the Union Citizen Minor. They recognized that adding a requirement for “sufficient resources” would detract from the main objective of allowing free movement of individuals. However, Marco Gerbaudo argued that Bajratari does not align with the free movement of individuals as evident in Court of Justice, the judgement of 3 October 2019, case C-302/18, X, where the free movement was denied on the basis of the source of Mr X which originated from a third-state national sibling. Thus the origin of the resource played a role as to whether the requirement was fulfilled. Geraudo did consider that the “resources” for Mr X were formally denied for their continuity and stability. What Geraudo failed to consider was Article 24 (2) of the Charter of Fundamental Rights of the European Union 2012/C 326/02. Therefore the case is distinguished from Bajratari by the fact that the CJEU had the fundamental responsibility to decide in favour of the child’s best interest, while the CJEU did not have that responsibility for Mr.X. This application of EU law and fundamental rights affirms the right of free movement of individuals as it was an unforeseen foundation for this decision.

The CJEU judgement prioritizes union citizenship rights in conjunction with fundamental rights, ergo aligning with their previous judgements. Children’s rights are considered fundamental rights under Article 24 of the Charter of Fundamental Rights of the European Union 2012/C 326/02, which states that children have the right to protection and care necessary for their well being, any action taken either private or public should be in the best interest of the child, and should it be in their interest, the child has right to a relationship with their parents. There is no surprise that in the Bajratari judgement, the CJEU held a firm conviction that the only requirement for sufficient resources is that it is available for the child. While Geraudo, would argue that the CJEU is inconsistent in their judgements, the reality is that their judgements are guided by these fundamental rights, such as the child’s rights as aforementioned. The reality is that while this judgement seems inconsistent, this judgement was guided by the children’s fundamental rights, which were not applicable in Mr X’s case as they were not fundamental to his case. Fundamental rights tend to work unseen regarding union citizenship. AG Sharpton has argued that there are overtones of fundamental rights in cases regarding rights to family life and children’s rights and that in these cases, the CJEU tend to apply generous interpretations on treaty provisions that involve citizenships . Thus the CJEU remains consistent in their judgement for taking a generous interpretation of Article 7(1)(b) of Directive 2004/38 to benefit the children, and in doing so the respect the EU law principles, specifically Article 24 (2) of the Charter of Fundamental Rights of the European Union 2012/C 326/02 where the action was taken was in the best interest of the children.

In conclusion, the Bajratari judgement has consistently aligned with EU law principles of free movement of individuals, union citizenships, and their fundamental rights of protection. This case concerned the interpretation of Article 7(1)(b) of Directive 2004/38, while it was criticized for not aligning with a current EU Case, further analysis demonstrated that this decision implicitly used fundamental rights in their judgement that concerned the mentioned EU law principles. After the Bajratari judgement, there is a certainty that the parents will obtain residency and work permits, thus reaffirming Chen, in affirming this case law it guarantees the fundamental rights, particularly Article 24 (2) of the Charter of Fundamental Rights of the European Union 2012/C 326/02.

Bibliography

Article 7 of Directive 2004/38

Article 24 of the Charter of Fundamental Rights of the European Union 2012/C 326/02

Article 21 of the Treaty on the Functioning of the European Union

Case of C-93/18 Ermira Bajratari v Secretary of State for the Home Department

Case C-200/02 Zhu & Chen v Secretary of State for the Home Department [2004] ECR I-9925

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