CITIZENS OR MIGRANTS? PRECARIOUS RESIDENCE IN THE CONTEXT OF EU CITIZENSHIP

I. INTRODUCTION[Up]

There is, in EU law, a legal trichotomy that distinguishes between nationals, EU citizens and third-country nationals (Blázquez Rodríguez, I. (2020). El Estatuto Jurídico de los Nacionales de Terceros Países. Cuadernos de Derecho Transnacional, 72 (1), 27-‍52. Available at: https://doi.org/10.17103/redi.72.1.2020.1.01.‍Blázquez Rodríguez, 2020: 29). Whereas domestic citizenship, as a form of membership, combines the values of belonging, rights and participation, EU citizenship is characterised by an attempt to develop a sense of belonging through the conferral of rights, and to employ new and more selective forms of participation (Bellamy, R. (2008). Evaluating Union Citizenship: Belonging, Rights and Participation within the EU. Citizenship Studies, 12 (6), 597-‍611. Available at: https://doi.org/10.1080/13621020802450676.‍Bellamy, 2008: 597). To date, however, it seems that it is only in the sphere of rights that EU citizenship is well advanced. And yet, EU citizenship is no doubt one of the main achievements of European integration. By creating a form of belonging that shifts away from the State and minimises the distinction between nationals and EU citizens, it is to a large extent a story of success, and widely regarded as the most advanced form of post-national membership (Benhabib, S. (2004), The Rights of Others: Aliens, Residents and Citizens. Cambridge: Cambridge University Press. Available at: https://doi.org/10.1017/CBO9780511790799.‍Benhabib, 2004; Soysal, Y. N. (1994). Limits of Citizenship: Migrants and Postnational Membership in Europe. University of Chicago Press.‍Soysal, 1994; Mindus, P. (2017). European Citizenship after Brexit: Freedom of Movement and Rights of Residence. Cham: Palgrave Macmillan. Available at: https://doi.org/10.1007/978-3-319-51774-2.‍Mindus, 2017). Moreover, the Court of Justice of the EU (CJEU), and later the European legislator, have made clear that EU citizenship would not be a trivial form of membership but the “fundamental status” of the citizens of Member States. The existential, “fundamental” or “quasi-national” nature of EU citizenship as a form of membership has been forged, to a great extent, through an extensive jurisprudence of the CJEU, which has made clear that free movement is not only crucial for economic growth and integration, but that it is now a fundamental right of EU citizens that contributes substantially to social and political integration (Martín Martínez, M. (2014). Límites a la libre circulación de personas en la UE por razones de orden público, seguridad o salud públicas en tiempos de crisis: una reevaluación a la luz de la jurisprudencia del TJUE. Revista de Derecho Comunitario Europeo, 49, 767-‍804.‍Martín Martínez, 2014: 771). But the “fundamental” character of EU citizenship has not only been pursued by means of a generous interpretation of free movement provisions, which are the subject of study of this Note. In the meantime, the Court has also extended the reach of EU law to situations without a cross-border element that would otherwise fall outside of the reach of EU law,^‍[2] and has been willing to recognise the legal validity, in the host Member State, of private juridical situations arisen under the legal order of the State of origin of a mobile EU citizen, among others (Blázquez Rodríguez, I. (2017). Libre Circulación y Derecho Internacional Privado: Un Análisis a la Luz de la Jurisprudencia del TJUE. Cuadernos de Derecho Transnacional, 9 (2), 106-‍126. Available at: https://doi.org/10.20318/cdt.2017.3867. ‍Blázquez Rodríguez, 2017). Against this backdrop, the analysis of EU citizenship would, prima facie, appear irrelevant for the study of illegality and non-removability.^‍[3]

However, the development of Union citizenship, far from being a linear progression, constitutes a “hesitant process of polity building” beyond the State (Shaw, J. (2019). EU Citizenship: Still a Fundamental Status? In R. Bauböck (ed.). Debating European Citizenship Cham (pp. 1-‍17). Cham: Switzerland: Springer. Available at: https://doi.org/10.1007/978-3-319-89905-3_1.‍Shaw, 2019: 5), in which there has been room for diverse processes of “othering” involving EU nationals, particularly in the context of poverty and criminality. EU citizenship is also a dynamic process which is deeply permeable to the historical evolution of the European project and to its economic, social and political crises (Martín Martínez, M. (2014). Límites a la libre circulación de personas en la UE por razones de orden público, seguridad o salud públicas en tiempos de crisis: una reevaluación a la luz de la jurisprudencia del TJUE. Revista de Derecho Comunitario Europeo, 49, 767-‍804.‍Martín Martínez, 2014: 768). The concepts of illegality and EU citizenship are not easy to reconcile, and yet irregular residence is no doubt a possible legal status for EU citizens living in a Member State other than their own (Menezes Queiroz, B. (2018). Illegally Staying in the EU: An Analysis of Illegality in EU Migration Law. Oxford: Hart Publishing.‍Menezes Queiroz, 2018: 48).

The right of residence is one of the key manifestations of both domestic and EU citizenship, albeit subject to conditionality in the EU case. This paper focuses on restrictions on residence rights and the existence of grey areas which relate to the setup of Directive 2004/38 and its interpretation by the CJEU.^‍[4] The Directive distinguishes between three types of residence available for EU nationals: short-term residence (up to three months), medium-term residence (from three months to five years), and permanent residence (for those who have resided legally for five years in the host State).^‍[5] In the case of medium-term residence, Article 7 establishes that EU citizens must be either economically active by being workers or self-employed or, alternatively, have comprehensive sickness insurance and sufficient resources “not to become a burden on the social assistance system of the host Member State”.^‍[6] The conditional right to reside held by economically inactive EU citizens by virtue of Article 7 offers one of the most controversial and widely discussed elements of EU citizenship law. It is also one in which the distinction between the EU citizen and the third-country national, and between regular and irregular residence, may have become particularly hazy and at times unable to encompass the experiences of an important number of mobile EU citizens.

Section II provides an analysis of the CJEU’s case law in this field, looking back at the Court’s foundational stage (section II.1) and subsequently analysing the Court’s shift to doctrinal conservatism in Dano (section II.2). Section III illustrates how, for poor EU citizens who do not fulfil residence conditions, lack of access to social benefits, precarious residence and non- removal is a possible outcome in between lawful residence and expulsion. These situations are ultimately the result of a policy choice of States not to remove, though tightly constrained by the EU legal order and its interpretation by the CJEU. Indeed, the legal link between the right to reside and equal treatment implies that restricting access to welfare in the host State ought to be followed by precarious residence, yet in a context of free movement whereby EU citizens are free to leave and re-enter the (expelling) Member State. This is framed as the outcome of an ambiguous EU framework that struggles to accommodate diverging dynamics of opening and closure and facilitates the emergence of precarious residence and non-removal. Lastly, section IV argues that, as much as the non-removal of EU citizens is strongly linked to the structural ambiguities and contradictions embedded in the Directive, EU law may also provide the tools to tackle at least some of these issues relating to precarious residence in the context of EU citizenship.

II. CITIZENSHIP CONDITIONALITY UNDER DIRECTIVE 2004/38 [Up]

III. WHAT NEXT? LEGISLATIVE AND JUDICIAL AMBIGUITIES AND MEMBER STATE PRACTICE[Up]

The shifting jurisprudence of the CJEU exposes the ambiguities of a Directive that seeks to reconcile both “the logic of closure which underpins national dispositions and practices of social sharing, and the logic of opening which typically inspires the European integration project” (Ferrera, M. (2005). The Boundaries of Welfare: European Integration and the New Spatial Politics of Social Protection. Oxford: Oxford University Press. Available at: https://doi.org/10.1093/0199284660.001.0001.‍Ferrera, 2005: 252). Certainly, the development of European citizenship is marked by a fragile balance between the Directive’s commitment to facilitating the exercise of the fundamental right to free movement, while reassuring Member States that EU citizens will not become a financial burden on their welfare systems. At the legal level, however, the tension between these different dynamics is buried under a seamless link between residence rights and equal treatment.

The jurisprudential turn in Dano has generally made it easier for States to find that mobile EU citizens do not satisfy residence conditions. But, if the “Danos” are no longer legally resident under EU law, one wonders: What is their status in the host country? Are they considered irregular migrants? Can these citizens be expelled solely on the basis of their lack of sufficient resources? Are they deported in practice? It is no longer feasible to postpone answering these questions.

In this context, it must be noted that becoming an “unreasonable burden” is directly related to becoming an unlawfully staying citizen (Menezes Queiroz, B. (2018). Illegally Staying in the EU: An Analysis of Illegality in EU Migration Law. Oxford: Hart Publishing.‍Menezes Queiroz, 2018: 54), and if a Union citizen does not have a right of residence, the host Member State will be legally entitled to expel him or her from its territory. There is, in EU law, no legal obstacle to the expulsion of EU nationals who do not fulfil residence conditions under Directive 2004/38 beyond those stemming from Member States’ obligations under Article 8 ECHR (Article 7 of the Charter), yet this is far from being a common practice of Member States. Notwithstanding the seemingly unequivocal outcome in Dano (that poor and economically inactive citizens are not legally resident under Directive 2004/38), the status of these citizens remains unclear in practice. As the following paragraphs illustrate, Member States, constrained by an institutional framework that is not built to deport undesirable EU citizens (except in cases of public policy, public security and public health derogations), may instead opt for precarious residence, and not expulsion, for those EU citizens that do not fulfil Article 7 conditions.

Firstly, it must be highlighted that neither the Directive nor the Commission Communication on the transposition of the Directive foresee a procedure for the expulsion of EU citizens on the basis of a lack of sufficient resources or comprehensive sickness insurance.^‍[31] Moreover, Article 15 of Directive 2004/38 prohibits the issuing of entry bans if residence is lost “on grounds other than public policy, public security or public health”.^‍[32] This prohibition on limiting the re-entry of EU citizens affects both the receiving and the sending State. In Jipa, the Court of Justice confirmed that Romania could not restrict a citizen’s right to move to another Member State from which he had been expelled unless he was deemed to pose a “genuine, present and sufficiently serious threat to one of the fundamental interests” of the host society.^‍[33] This means that, if expelled, the “Danos” can simply fly back to the host State, showing the paradox of applying the concepts of illegality and expulsion to EU citizens in the context of European integration and internal open borders. Following the (so far uncontested) logics of opening, citizenship rights, when lost, can be re-activated by leaving and re-entering the host Member State, offering the citizen another opportunity to justify his or her free movement rights (by, for example, showing to be a jobseeker with a reasonable chance of success) or simply go unnoticed by State authorities. As a result, States’ prerogative to deport people is deeply undermined inasmuch as it is not accompanied by the competence to regulate and control entry. It then comes as no surprise that little evidence of expulsion taking place in these cases can be found across Member States even if media rhetoric in some Member States suggests otherwise (Shaw, J. and Nic Shuibhne, N. (2014). General Report: Union Citizenship: Development, Impact and Challenges. In U. Neergaard, C. Jacqueson and N. Holst-Christensen (eds.). Union Citizenship: Development, Impact and Challenges, The XXVI FIDE Congress in Copenhagen, 2014 Congress Publications Vol. 2. Denmark: DJØF Publishing.‍Shaw and Nic Shuibhne, 2014: 93).^‍[34]

This does not mean, however, that Member States do not have recourse to expulsion at all. In fact, the lack of clarity of an EU framework that neither prohibits expulsion, nor offers clear rules on the procedures leading to the expulsion of EU citizens, might facilitate selective and discriminatory deportation. An example of this can be found in the expulsion of Roma people from some Member States. The most salient example is provided by France, where 80 % of the EU citizens who are deported are either Romanian or Bulgarian citizens (13 241 in the first 10 months of 2010 alone) (Basilien-Gainche, M.-L. (2020). European States Returning European Citizens: France and the Roma Populations. In E. Guild, P. Minderhoud and S. Mantu (eds.). EU Citizenship and Free Movement Rights Taking Supranational Citizenship Seriously (pp. 265-‍283). Leiden; Boston: Brill. Available at: https://doi.org/10.1163/9789004411784_013.‍Basilien-Gainche, 2020: 268).^‍[35] Even if many of the citizens removed from France might not fulfil residence conditions, it seems to be the case that, if not by the law, these communities are targeted by administrative practices and that their Roma origin constitutes a significant motive for their arrest and expulsion (Maslowski, S. (2015). The Expulsion of European Union Citizens from the Host Member State: Legal Grounds and Practice. Central and Eastern European Migration Review, 4 (2), 61-‍85. ‍Maslowski, 2015: 73). Another example is provided by the “hostile environment” policies implemented by the UK towards rough-sleeping EU citizens, which often led to their deportation even without them seeking access to social assistance (Evans, M. (2020). Abusing or Misusing the Right of Free Movement? The UK’s Policy towards EU Nationals Sleeping Rough. In E. Guild, P. Minderhoud and S. Mantu (eds.). EU Citizenship and Free Movement Rights Taking Supranational Citizenship Seriously (pp. 302-‍322). Leiden; Boston: Brill. Available at: https://doi.org/10.1163/9789004411784_015.‍Evans, 2020). In both cases, the letter of EU citizenship law might certainly allow for the expulsion of many of these economically inactive citizens, and yet the fact that States selectively pick the victims of an all-of-a-sudden strict interpretation of EU law raises serious questions about the compatibility of these practices with the principle of non-discrimination under EU law.

Despite these practices, however, expulsion is not necessarily the tool for States to manage the issue of unlawfully staying EU nationals. In practice, it might be easier for States to follow a “starve them out” strategy (Nic Shuibhne, N. (2015). Limits Rising, Duties Ascending: The Changing Legal Shape of Union Citizenship. Common Market Law Review, 52 (4), 889-‍937.‍Nic Shuibhne, 2015: 933; Thym, D. (2015a). When Union Citizens Turn into Illegal Migrants: The Dano Case. European Law Review, 40 (2), 249-‍262. ‍Thym, 2015a: 260), denying access to social benefits or residence, or issuing deportation orders which will never be enforced in practice, hoping that people leave by their own means. With Dano, the CJEU facilitates such an interpretation of EU law, as it makes it easier for States to find that an EU citizen ought to leave, yet in a legal setting that, unlike the migration acquis, does not enable Member States to realistically expel as a norm. Again, deportation is simply too expensive (and time-consuming) a venture for a State with no power to decide over the re-entry of returnees. This interpretation can create an underclass of EU citizens who are simply “present” until or unless they are issued a residence permit or actually removed. A few domestic examples are provided below.

Firstly, in the (pre-Brexit) UK immigration regulations, the Secretary of State was legally entitled to verify any EU citizen’s right to reside and to enforce removal when residence conditions were not met.^‍[36] However, a report on the implementation of the Directive conducted in collaboration with British authorities in 2014 revealed that “[t]he solution adopted by the UK courts is to treat EU citizens who do not enjoy a right of residence by virtue of [Article 7 of the Directive] as simply “present” in the United Kingdom. That status does not confer any right of residence in the UK under either EU or national law” (Shaw, J. and Nic Shuibhne, N. (2014). General Report: Union Citizenship: Development, Impact and Challenges. In U. Neergaard, C. Jacqueson and N. Holst-Christensen (eds.). Union Citizenship: Development, Impact and Challenges, The XXVI FIDE Congress in Copenhagen, 2014 Congress Publications Vol. 2. Denmark: DJØF Publishing.‍Shaw and Nic Shuibhne, 2014: 90).

In Austria, EU citizens must show that they fulfil residence conditions in order to obtain the necessary registration certificate to reside in the country for longer than three months. Moreover, the right of residence is reviewed each time that an EU citizen asks for a supplementary pension, as welfare authorities often notify immigration authorities (Heindlmaier, A. and Blauberger, M. (2017). Enter at Your Own Risk: Free Movement of EU Citizens in Practice. West European Politics, 40 (6), 1198-‍1217. Available at: https://doi.org/10.1080/01402382.2017.1294383.‍Heindlmaier and Blauberger, 2017: 1209). Even if according to Austrian law EU citizens should be expelled when “the prerequisites for this right of residence do not apply or no longer apply”,^‍[37] between 2008 and 2013 only 752 out of 9 887 unlawfully staying EU citizens (Aufenthaltsverbote) were issued with expulsion orders (Heindlmaier, A. and Blauberger, M. (2017). Enter at Your Own Risk: Free Movement of EU Citizens in Practice. West European Politics, 40 (6), 1198-‍1217. Available at: https://doi.org/10.1080/01402382.2017.1294383.‍Heindlmaier and Blauberger, 2017: 1208). However, these statistics do not show the reasons leading to removal. According to Heindlmaier and Blauberger, Austrian officials noted, when interviewed, that lack of resources was hardly ever the reason due to the ineffectiveness of expulsions without a re-entry ban (Heindlmaier, A. and Blauberger, M. (2017). Enter at Your Own Risk: Free Movement of EU Citizens in Practice. West European Politics, 40 (6), 1198-‍1217. Available at: https://doi.org/10.1080/01402382.2017.1294383.‍2017: 1208). Thus, it is to be assumed that, considering the already low numbers of expulsion orders issued to EU citizens from Austria, those expelled due to the lack of fulfilment of residence conditions constitute a negligible amount of the unauthorised population. In the meantime, EU citizens are asked to leave the country voluntarily and often live under the threat of being deported, although hardly ever followed by a formal expulsion order (Heindlmaier, A. and Blauberger, M. (2017). Enter at Your Own Risk: Free Movement of EU Citizens in Practice. West European Politics, 40 (6), 1198-‍1217. Available at: https://doi.org/10.1080/01402382.2017.1294383.‍Heindlmaier and Blauberger, 2017: 1209).

The clearest example of an institutionalised “starve them out” strategy is however provided by Belgium, which stands out due to its openness to disclose the number of return orders issued strictly on Article 7 grounds.^‍[38] Between 2012 and 2018, expulsion orders due to the lack of fulfilment of residence conditions ranged from 1 350 to 2 712 per year (Valcke, A. (2020). Expulsion from the “Heart of Europe”: The Belgian Law and Practice Relating to the Termination of EU Residence Rights. In E. Guild, P. Minderhoud and S. Mantu (eds.). EU Citizenship and Free Movement Rights Taking Supranational Citizenship Seriously (pp. 265-‍283). Leiden; Boston: Brill.‍Valcke, 2020: 178). Whereas the statistics on enforced removals are only available for those expelled on grounds of public policy and public security, the Belgian Secretary of State explicitly noted that expulsion orders based on other grounds are purely symbolic and that “the removal of a European national will only take place if and only if there is fraud or problems linked to public order” (Valcke, A. (2020). Expulsion from the “Heart of Europe”: The Belgian Law and Practice Relating to the Termination of EU Residence Rights. In E. Guild, P. Minderhoud and S. Mantu (eds.). EU Citizenship and Free Movement Rights Taking Supranational Citizenship Seriously (pp. 265-‍283). Leiden; Boston: Brill.‍Valcke, 2020: 184). In a recent work based on ethnographic fieldwork conducted with Italian citizens in Belgium, Lafleur and Mescoli found that the Belgian government uses, since 2010, a policy of systematic cross checking between migration and social security databases to determine whether EU nationals are using non-contributory benefits for “too long” or have “no reasonable chance of finding employment” (2018: 486). If this is the case, they are considered an “unreasonable burden” on the Belgian welfare state, their residence permits are withdrawn, and they are issued with expulsion orders. Unlike in the case of Roma minorities or other “less deserving” EU citizens, for Italian nationals (like for French or Spaniards) deportation is only a theoretical possibility which does not materialise in practice (Lafleur, J.-M. and Mescoli, E. (2018). Creating Undocumented EU Migrants through Welfare: A Conceptualization of Undeserving and Precarious Citizenship. Sociology, 52 (3), 480-‍496. Available at: https://doi.org/10.1177/0038038518764615.‍Lafleur and Mescoli, 2018: 484). However, their unlawful stay is characterised by lack of access to rights, the removal of their data from residence registries, personal intimidation in bureaucratic interactions, and a threat of being deported (Lafleur, J.-M. and Mescoli, E. (2018). Creating Undocumented EU Migrants through Welfare: A Conceptualization of Undeserving and Precarious Citizenship. Sociology, 52 (3), 480-‍496. Available at: https://doi.org/10.1177/0038038518764615.‍Lafleur and Mescoli, 2018: 487-‍488). These EU nationals have, de facto, become non-removable migrants, staying unlawfully and under the threat of deportation, but never actually removed. In these cases, it is not the existence of a legal or technical obstacle that impedes the expulsion of these individuals (as it often occurs with third-country nationals), but a policy choice of States not to do so. A similar practice was reported by Spanish citizens residing in Belgium, who noted that, once they rejected the expulsion order that was issued to them, they were not forcibly deported, but simply removed from all the official registries. This precludes them, for instance, from signing a rental contract or having access to health care or education.^‍[39]

In sum, the restriction of the mobility of the poor in the context of EU citizenship does not seem to be generally carried out by means of deportation, even when domestic legislation so provides. This can possibly be explained due to the high costs of expelling a person who can freely fly back to the host country, for the sake of friendly relationships with fellow EU governments, or other reasons. The draconian interpretation of Dano undertaken by some Member States, according to which an EU citizen with a valid residence permit who asks for social benefits gets exposed not only to having the benefits denied, but to become an irregular migrant, requires legal residents to be aware of the latest EU law developments coming from Luxembourg so as to know whether the mere act of asking for a benefit can put an end to their rights as EU citizens altogether.

The general scarcity of available data on the expulsion of EU nationals (Ballesteros, M., Kelly, G., Meurens, N., and Perego, A. (2016). Obstacles to the Right of Free Movement and Residence for EU Citizens and Their Families. Brussels: European Parliament, Study for the LIBE and PETI Committees. Available at: https://bit.ly/3cQSROF.‍Ballesteros et al., 2016: 122), as well as the fact that some States might take a more liberal stance towards the residency of EU citizens, make it difficult to draw conclusions on the quantitative relevance of the issue. It is thus not my contention that this is the way through which Member States deal with economically vulnerable citizens, but rather that when these situations occur, they can be understood as a by-product of EU law. In Dano, the Court facilitates the withdrawal of residence rights by bringing to life the dynamics of closure embedded in the Directive. However, the dynamics of opening which are (too) rooted in the Directive remain untouched as regards citizens’ right to re-enter the country from which they are expelled on residence conditionality grounds, limiting States’ capacity to deport in practice. Between de jure non-removable and de facto non-removed, these EU citizens ultimately remain due to a policy choice of the host Member State which makes a decision not to enforce removal (yet one that is deeply constrained by EU law). In this context, Belgium provides the clearest example of a Member State that takes full advantage of the ambiguities of the EU legal framework while being generally compliant with the Directive.

IV. EU LAW TO THE RESCUE? EU LAW SOLUTIONS TO AN EU LAW PROBLEM[Up]

The obscure relationship between access to welfare, residence and expulsion in Article 7 has made it possible for some States to trap EU citizens into a circular interpretation of this provision. According to this interpretation, EU citizens can only ask for social benefits if they are legal residents, but asking for social benefits may reveal a lack of resources and make them automatically lose social benefits, legal residence and protection from expulsion altogether. This is particularly relevant considering that no individual proportionality assessment seems to be required according to Dano. Moreover, these ambiguities also make it possible to expel certain EU citizens following a strict interpretation of the Directive. Whereas the issues highlighted above are, to a great extent, the result of the application of an EU legal framework which is too often ambiguous in its application, EU law also provides for the necessary tools to address its most adverse effects.

Firstly, for those who are expelled for no longer fulfilling residence conditions, this might take place, as anticipated above, in a manner contrary to non-discrimination provisions despite removals being enforced following a literal application of EU law. In 2010, when the French government dismantled over 500 Roma settlements and expelled more than 1 000 EU citizens between July and September (Basilien-Gainche, M.-L. (2020). European States Returning European Citizens: France and the Roma Populations. In E. Guild, P. Minderhoud and S. Mantu (eds.). EU Citizenship and Free Movement Rights Taking Supranational Citizenship Seriously (pp. 265-‍283). Leiden; Boston: Brill. Available at: https://doi.org/10.1163/9789004411784_013.‍Basilien-Gainche, 2020: 267), the European Parliament condemned the practice as being discriminatory on the ground of origin and constitutive of mass expulsion,^‍[40] although the Commission surprisingly did not initiate infringement procedures against France (Maslowski, S. (2015). The Expulsion of European Union Citizens from the Host Member State: Legal Grounds and Practice. Central and Eastern European Migration Review, 4 (2), 61-‍85. ‍Maslowski, 2015: 73). In the UK case, it was the UK High Court that ruled that the Home Office policies towards rough-sleeping EU citizens were contrary to EU law.^‍[41]

For those who are not removed, some have advocated for an interpretation of Dano according to which lawful residence and unconditional access to social benefits do not necessarily go hand in hand. This would satisfy statist concerns about “benefit tourism” while maintaining a reasonably meaningful (though incomplete) status for EU citizens. Soon after Dano, Spaventa anticipated that this ruling, while undeniably a step back in many respects, offered an opportunity to close a gap in citizenship law that dated back to Martínez Sala. As highlighted above, Martínez Sala provided incentives for Member States to closely monitor which citizens were truly fulfilling residence conditions before these asked for social benefits on the basis of their residence. In other words, “Member States who were pretty laissez-faire in relation to residence of non-economically active migrants might become stricter if hospitality came with a price tag attached” (Spaventa, E. (2016). Once a Foreigner, Always a Foreigner: Who Does Not Belong Here Anymore? Expulsion Measures. In H. Verschueren (ed.). Residence, Employment and Social Rights of Mobile Persons (pp. 89-‍110). Cambridge: Instersentia.‍Spaventa, 2016: 95). The key question will thus be to ascertain whether Dano implies that the conditions for residence rights differ from those of equal treatment rights. Indeed, the CJEU rules, beyond reasonable doubt, that Member States are not obliged to grant social benefits to those EU citizens that do not fulfil Article 7 conditions. But, according to Spaventa, if the EU citizen in question does not have access to the welfare system of the host State, it is hard to envisage how he or she could become an “unreasonable burden” on its social assistance system. There would be, as a result, little harm in allowing citizens in this situation the possibility to reside in the host State (Spaventa, E. (2016). Once a Foreigner, Always a Foreigner: Who Does Not Belong Here Anymore? Expulsion Measures. In H. Verschueren (ed.). Residence, Employment and Social Rights of Mobile Persons (pp. 89-‍110). Cambridge: Instersentia.‍2016: 98). Thus, a strict interpretation of Article 7 would apply as far as equal treatment is concerned, but a more expansive interpretation based on primary law and individualised proportionality would apply for residency and protection against expulsion. This interpretation would address States’ concerns about “welfare tourism”,^‍[42] maintain a reasonably meaningful concept of EU citizenship and avoid vulnerable people facing precarious residence and threat of expulsion solely on the basis of economic considerations.

Remarkably, time might have proven Spaventa right (but only to a certain extent). Already in Alimanovic, the Court showed some hints that the right to reside and equal treatment might not be inevitably linked. Despite denying access to benefits on the basis of a strict interpretation of the Directive, the Court argued that Ms. Alimanovic and her daughter could rely on Article 14(4)(b) in order to enjoy a right of residence in the host State due to her status as a jobseeker, although the provision only provided for protection against expulsion and not for lawful residence.^‍[43] In this case, however, the separation between lawful residence and access to welfare derived from an express derogation enshrined in Article 24(2) of the Directive, which enables States to deny social assistance to first-time jobseekers.

More recently, in Bajratari the Court had to interpret Article 7(1)(b) in the context of a minor EU citizen whose “sufficient” resources derived from the unlawful employment of his father, an irregular migrant from Albania. In this case, the Court not only established that both the EU citizen and his father had a right to reside under the Directive, but it did so in a way that resembles more the reasoning of the Court in Brey than that of Dano. The CJEU remarked that the objective of the Directive is to “facilitate the exercise of the primary and individual right to move and reside freely”^‍[44] and, paraphrasing Brey, it argued that free movement is the general rule and that “the conditions laid down in Article 7(1)(b) of Directive 2004/38 must be construed in compliance with the limits imposed by EU law and the principle of proportionality”.^‍[45] What follows is an individualised proportionality test in light of primary law which, breaking free from Alimanovic, establishes that making lawful residence dependent on having resources obtained from legal work would be “a disproportionate interference with the exercise of the Union citizen minor’s fundamental right of free movement and of residence under Article 21 TFEU”.^‍[46] In doing so, it carefully considers (in a Baumbast-like manner) the applicant’s individual circumstances, including his father’s tax and social security contributions, as well as the fact that in 10 years none of them had received social assistance in the UK.^‍[47]

The case of Bajratari thus supports the claim that the Court might have de facto adopted different standards as to what “sufficient resources” and comprehensive sickness insurance mean depending on whether the case is about residence only, or whether it also includes a claim to social assistance. It thus seems to be easier for litigants to obtain a positive outcome from Luxembourg if social benefits are out of the equation. This would probably be the only way to make sense of the CJEU’s leap from Brey to Dano, and back to individualised proportionality in Bajratari, and one that might address the issue of precarious residence for some non-removed EU citizens.

However, as soon as a dispute over social benefits comes into play, the proposal of separating lawful residence from equal treatment rests on shaky legal grounds. Firstly, because Article 24(1) of the Directive rules that, “[s]ubject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty”.^‍[48] In addition, Article 34 of the EU Charter for Fundamental Rights guarantees the right to “social security benefits and social advantages in accordance with Union Law and national laws and practices” of everyone residing legally in the EU,^‍[49] and Article 18 TFEU prohibits the discrimination of Union citizens on the grounds of nationality. Whereas in Alimanovic the CJEU made use of the express derogation enshrined in Article 24(2) of the Directive so as to limit the access to social benefits of a first-time jobseeker, there seem to be no legal grounds to limit the rights of lawful residents as a general rule. This can also help explain why the Court might be eager to implicitly adopt a more generous approach when a case is only about residence, but it is however incapable of separating residence and welfare within the very same case. Indeed, as soon as a conflict over equal treatment arises, the legal link between residence rights and equal treatment drags the CJEU into adopting an “open-open” or “closed-closed” solution, despite the fact that, in the real world, both elements are affected by ongoing (and sometimes differing) dynamics of opening and closure.

And yet, some Member States like Spain (Valina Hoset, R. and Roman Vaca, C. (2016). Obstacles to the Right of Free Movement and Residence for EU Citizens and Their Families: Country Report for Spain. Brussels: European Parliament, Study for the LIBE and PETI Committees. Available at: https://bit.ly/3wBZPza.‍Valina Hoset and Roman Vaca, 2016),^‍[50] Italy (Brunello, S. and Perego, A. (2016). Obstacles to the Right of Free Movement and Residence for EU Citizens and Their Families: Country Report for Italy. Brussels: European Parliament, Study for the LIBE and PETI Committees. Available at: https://bit.ly/3iSf2rQ. ‍Brunello and Perego, 2016), Germany and, to a lesser extent, Austria (Heindlmaier, A. and Blauberger, M. (2017). Enter at Your Own Risk: Free Movement of EU Citizens in Practice. West European Politics, 40 (6), 1198-‍1217. Available at: https://doi.org/10.1080/01402382.2017.1294383.‍Heindlmaier and Blauberger, 2017), do in practice separate their policies as regards residence and equal treatment. These practices (which perhaps fail to comply with EU law by omission) are certainly hard to reconcile with the notion of EU citizenship as the fundamental status of EU citizens, as they provide for different “classes” of EU citizens based on perceived levels of deservingness. That being said, these practices retain some meaning to the status of the poor and economically inactive.

Moreover, the ambiguities of the Directive can also be used to the citizen’s advantage. Firstly, it remains the case that the CJEU has created an autonomous concept of worker based upon an expansive interpretation of the “real and genuine” economic activity needed to qualify as a worker or self-employed person.^‍[51] The economic activity might be regarded as genuine, among others, where the worker engages in brief and minor employment that “did not ensure him a livelihood”,^‍[52] in cases of traineeships,^‍[53] or in a case of part-time employment of between 3 and 14 hours per week.^‍[54] More recently, the Court had to tackle all worker status, residence rights and social benefits in the case of Tarola, where it protected the worker status of a Romanian national who had worked for two weeks in Ireland before becoming involuntarily unemployed.^‍[55] In doing so, the Court referred to the Directive’s objective “to strengthen the right of free movement and residence of all Union citizens”,^‍[56] and remarked that the interpretation of its provisions cannot be done restrictively.^‍[57] Thus, from a litigant’s perspective, it might be desirable to undertake (any) economic activity so as to be regarded as a worker under EU law and hence fall under full equal treatment, or alternatively to register as a first-time jobseeker with no access to benefits other than those intended to facilitate access to the labour market.^‍[58] Secondly, upon the loss of residence rights, EU citizens may alternatively opt to leave and re-enter the country in other to re-activate their citizenship rights. Upon re-entry, they may seek to engage into economic activities, register as jobseekers, or simply go unnoticed by State authorities if no social assistance is sought.

Lastly, even if EU citizenship, as the “fundamental status” of EU citizens, is arguably intended to go well beyond States’ human rights commitments under the ECHR, violations of citizens’ rights to family and private life under Article 8 of the Convention cannot be discarded. A case in point is, again, provided by Dano, where, as noted above, the CJEU did not require German authorities to assess the number and length of the applicant’s previous stays in the country, her private and family ties with both the host country and the country of origin, or the fact that her son was born in the host State. Whereas the result of the balancing exercise is, in principle, for domestic courts to perform (particularly considering Strasbourg’s “procedural turn” (Kleinlein, T. (2019). The Procedural Approach of the European Court of Human Rights: Between Subsidiarity and Dynamic Evolution. International and Comparative Law Quarterly, 68 (1), 91-‍110. Available at: https://doi.org/10.1017/S0020589318000416.‍Kleinlein, 2019; Arnardóttir, O. M. (2017). The “procedural turn” under the European Convention on Human Rights and presumptions of Convention compliance. International Journal of Constitutional Law, 15 (1), 9-‍35. Available at: https://doi.org/10.1093/icon/mox008.‍Arnardóttir, 2017)),^‍[59] the fact that no individualised proportionality assessment seems to be required at all by the CJEU in cases like Dano, Alimanovic or García-Nieto may end up in Article 8 violations, and hence human rights litigation might prove a fruitful route to explore.^‍[60]

V. CONCLUSIONS[Up]

This article has analysed the trajectory of the Court of Justice in the much-explored field of free movement rights, yet from a different angle. The case of Dano, albeit a regrettable step back to doctrinal conservatism, opens up a space to look into past case law with fresh eyes. Indeed, the Dano case not only questions the nature of EU citizenship as the “fundamental status” of EU citizens through a strict interpretation of their basic rights as citizens of the Union, but also allows us to reflect on the structural ambiguities of EU citizenship and their consequences in terms of legal status and access to rights for economically inactive citizens.

I have argued that, for economically inactive citizens, the legal link between the right to reside and equal treatment hides a tension between divergent dynamics of opening and closure. The dynamics of opening, deeply rooted in the European project, are manifested by means of a so far uncontested right to move (and re-enter) to any Member State. Conversely, the dynamics of closure, exacerbated by the economic crisis and embraced by the CJEU in Dano, reflect the will of States to restrict welfare access for those EU citizens who are perceived as less deserving. In this context, the social and economic consequences in the wake of the COVID-19 pandemic might provide yet another test to the resilience of EU citizenship.

These ambiguities in the legal architecture of EU citizenship are manifested in the adoption of policies of closure (via irregular residence and expulsion) in a context of EU integration and open borders. Against this backdrop, this paper has provided examples of State practice along the lines of precarious residence and non-removal. It is contended that the existence of an EU legal framework that authorises expulsion but also makes it futile in practice has a key role in the creation of these liminal statuses. Whereas these situations ultimately derive from a policy choice of States not to remove EU citizens, such decisions are tightly constrained by an EU framework that severely limits States’ capacity to manoeuvre in practice.

By looking at the most recent developments in the CJEU’s jurisprudence, one last question arises: is the Court now, through a chamber judgment in Bajratari, overturning the Court’s shift in Dano and Alimanovic and going back to Baumbast and Brey? It seems highly unlikely. It must be recalled that, in Bajratari, not only there is no access to social benefits involved, but the fact that the Bajratari family had never asked for them weighted in favour of their status as lawful residents. As it has been suggested in the literature, it might be the case that the CJEU has de facto attached a greater value to the citizens’ right to reside than to their right to full equal treatment via social benefits. The Court thus seems to be adopting a double standard as to what amounts to “sufficient resources” and comprehensive sickness insurance depending on whether the case involves a demand for social benefits, or whether it is strictly about residence. In the former case, States would be allowed to restrict access to social benefits by law, with strict conditionality, and without incorporating personalised proportionality considerations to each specific case. In the latter case, lawful residence could only be withdrawn if States demonstrate in each specific case that the individual concerned is an “unreasonable burden” on the public finances of the State, by considering the length of stay and links to the host State, the records of his/her access to its welfare system, whether his/her financial difficulties seem temporary, and so on.

Whereas this reasoning flows logically when the case at hand is strictly about residence, the Court is reluctant to separate the two when equal treatment is at stake (and for good reasons). Certainly, there seems to be no legal grounds to deny equal treatment to lawfully staying EU citizens, other than those expressly provided for by the law. Thus, despite the existence of State practice in this direction, the proposed two-tier citizenship for economically inactive citizens does not seem to hold under EU law. As long as the CJEU holds on to Dano, by asking for social benefits, the citizen risks obtaining a “closed-closed” interpretation according to which they may lose both benefits and residence altogether.

In the meantime, however, EU law still offers citizens the possibility to make use of it to their advantage. Firstly, the low standards coming from Luxembourg as to who qualifies as a worker under EU law (and hence becomes a more “worthy” citizen) open up a possibility for citizens to undertake minor economic activities so as to be regarded as workers under EU law. Secondly, the ambiguities highlighted in this paper also make it possible for citizens to repeatedly lose and re-activate their citizenship rights. Unlike with third-country nationals, the loss of residence rights is not necessarily game over for EU citizens.