One to Watch! Right to Reside in a Member State

Advocate General Verica Trstenjak last week issued her opinion in the case of Yoshikazu Lida v Stadt Ulm. Relying on the Charter of Fundament Rights, the Advocate General found that EU law can confer a right of residence on a third-country national parent, where that parent has custody rights and where his child has moved with the other parent to another Member State.

In this case, Mr Lida, a Japanese national, married and had a child with a German national. From 2005, the family resided in Germany where Mr Lida was granted a residence permit on the basis of his marriage to an EU national. In 2008, Mr Lida’s wife and child moved to Austria and the couple separated.

The issue then arose as to whether Mr Lida retained an entitlement to a right to reside in Germany on the basis of his status as a family member of an EU national. The German authorities refused his initial application to reside. The German court subsequently referred the case and asked the Court of Justice whether under EU law, a parent with a right of custody but who is a third-country national, has a right to reside in the EU Member State that is the origin of his child (who is an EU citizen), so as to maintain regular parental contact with that child, who has exercised free movement and resides in another EU Member State.

AG Trstenjak found that neither the Free Movement Directive nor the caselaw of the Court of Justice confers any such right of residence on the third-country national.

However, the Advocate General then considered the protections of the Charter of Fundamental Rights. The Charter protects the right of the child to maintain a personal relationship and direct contact with both parents and to respect for family life. If the third-country national parent was denied the right to reside, this may potentially deter his child from further exercising her right to free movement as an EU citizen and therefore be contrary to EU law. The extent to which such free movement would be deterred falls to the local court to determine.

The reliance here on the Charter of Fundamental Rights is of note and suggests that the now binding Charter may ground expanded free movement protections for third-country nationals within the EU, particularly with respect of family life. We will await with interest the Court’s ultimate determination and will keep you updated.

The full opinion is available here. 

An update on the opinion by PILA is available here. 

Brophy Solicitors 13.06.12