Unit 5: Internal Market: Free

Movement of Persons (workers) and

(citizenship)
TUTORIAL 5: FREE MOVEMENT OF PERSONS IN PROBLEM SCENARIOS

To tackle a problem question, you will need to address the followings

Identify the legal issues raised in the factual scenario. Try to articulate your answer as concisely
as possible
Explain the applicable law using relevant legal authorities.
Apply to the facts of the scenario. Have you considered all relevant legal avenues?
Conclusion: do your clients have a claim and, if so, how strong or weak is it?

For example.

Erin is UK national and her registered civil partner, Paula, is Spanish. Their civil partnership was
created in the UK. Erin has been living and working in Germany, for NASA, for four years. Paula
has been living with Erin for all of this time but has not been economically active because she is
the primary carer for her six-year old son, Patrick.
Erin is injured in an accident at work and is unable to continue in her employment.
Paula, who is a qualified and experienced nurse, decides to seek employment because Patrick is
starting school. When she visits the German job centre she finds that there is a separate section
for non-German jobseekers with a very limited number of jobs made available. She is told that
jobs in state owned hospitals are reserved for German nationals because they are public service
jobs. However she finds details of a position as a nurse in a private hospital. She applies for this
post but is unsuccessful because the hospital prefers nurses who qualified in Germany. Paula
applies for a state benefit, which is given to all unemployed German parents, but this application
is refused because she is not a German citizen.
Bored and in pain, Erin uses cannabis for which she is arrested, convicted and fined. Five months
after Erins accident the German authorities tell her that she must leave the country because she
is unlikely to ever fully recover from her injuries and work again and she is a convicted criminal.
Paula is also told to leave because she has failed to find work and her application for state benefits
proves she is becoming a burden on the state.
Advise Erin and Paula.
WORKSHOP 5 : FREE MOVEMENT OF PERSONS
Essential cases
Levin v Staatssecretaris van Justitie (Case 53/81 [1982] ECR 1035)
Kempf v Staatsecretaris van Justitie (Case 139/85 [1986] ECR 1741)
Lawrie-Blum v Land Baden-Wrttemberg (Case 66/85 [1986] ECR 2121)
Steymann v Staatsecretaris van Justitie (Case 196/87 [1988] ECR 6159)
Commission v Belgium (Case 149/79 [1982] ECR 1845)
Cristini v SNCF (Case 32/75 [1975] ECR 1085)

Secondary legislation
Directive 2004/38
Reg 492/11
1. Analyse critically how the CJEU has expanded the meaning of workers and applied derogations narrowly
in order to give full effect to FMoP as envisaged in Art3 TEU.

2. Free Movement of Workers and family members Problem question

a) Advise whether Paul and Tracy are entitled to free movement and on what
basis?

Paul is a British artist. He has been living happily in London with his long term Malaysian
girlfriend, Tracy. However, his recent work has been uninspiring and sales have dried up.
Paul decides to move to Spain in the hope that a change of environment will boost his
creativity. Whilst he waits for sales of his work to improve, Paul lives partly on benefits
and partly as a seasonal worker in the farming industry. Tracy soon decides to join him.
They find the place so romantic that they decide that they will get married on the Costa
del Sol during the following summer. Tracy soon becomes pregnant. A baby daughter, Gin
Yi, is born the following year.

b) Assuming the entitlement to FMoP has been established, advise whether the
extensive equal treatments rights guaranteed in Regulation 492/2011 and
case law should apply to the following:
Paul and Tracy are now getting into serious debts. Paul decides to set the art aside until better times come
and look for a proper job. In the job centre there is a separate section for non-Spanish jobseekers with a
very limited number of jobs made available. Tracy decides to seek employment as a nurse. She is told that
jobs in state owned hospitals are reserved for Spanish nationals because they are public service jobs.

c) Advise as to the application of the FMoP rules should Paul or Tracy loose their
status (such as loss of employment, family breakdown etc)

The financial situation has put a serious strain on Paul and Tracys relationship. Two
years after their romantic wedding, Paul and Tracy separate. Tracy moves to another
Spanish seaside resort together with their daughter. Tracy is now contemplating
obtaining a divorce from Paul. The Spanish authorities have refused to renew her
residence permit on the ground that she is no longer living with her husband and she is
not a EU citizen. Gin Yi would also have to go as she is too young to look after herself and
needs a parent.
d) Advise as to whether Paul may be deported on the grounds that he has a previous
conviction for armed robbery.

3. Jens is a Danish citizen. When travelling around Italy, he meets and joins an occult group, The Visionaries.
They require him to work within the Community, where he will be supported. He works as a gardener with
special responsibility for fruit trees. The fruit are sold to raise money. After 2 years, he contacts The
European Association Against Cults (EAAC) and they get him out and into a safe house in Florence. He is
now unable to work and supported by an EAAC fund. He wants to claim disability benefit, but the Italian
authorities refuse.

Whilst in Florence, Jens meets and falls in love with Iva, an Australian national. They decide to set up home
in Sicily and get married. Jens is now fully recovered and is working as a salesman, but Iva becomes
pregnant and decides to be a full time mother.
Jens is made redundant and gets involved with the Mafia. The Italian authorities want to deport him, but
Iva wants to remain in Sicily with their son.
Advise Jens and Iva as to the application of the law on the free movement of persons to their
respective situations