Must I move to be with my family? The right to family reunification in EU law and the problem of reverse discrimination

Abstract

The Court of Justice of the European Union has progressively revised the rule of purely internal situations to ensure a wider scope of application of the economic freedoms as well as the EU citizenship right to move and reside freely within the Union. This development, combined with the increasing importance of fundamental rights, has strengthened the family life protection of those EU citizens who come within the scope of EU law. The limit between the individuals who may benefit from a EU right to family reunification and fundamental rights protection and those who find themselves in purely internal situations has, however, become more legally uncertain. The disadvantage suffered by those who fall outside the scope of EU law is known as reverse discrimination. The 2011 case Zambrano confirmed the trend towards an increasingly generous EU law protection of family life in cases where the exercise of freedom of movement and enjoyment of EU citizenship rights is potentially restricted by a Member State measure. By contrast, in the subsequent McCarthy- case, it became clear that families in purely internal situations may only rely on national immigration and procedural law to obtain family reunification and protection of their fundamental rights. This problem of reverse discrimination would disappear if EU fundamental rights protection covered all Member State nationals regardless of whether there was a cross-border dimension to their case. That, however, could only be the result of a leap towards a federalized EU structure where fundamental rights would have the character of constitutional EU citizenship rights.