Research Papers

In recent case law we witness the emergence of a special category of privileged family members of EU citizens, namely primary carers. The ECJ has recognized that primary carers can, under certain circumstances, enjoy a right of residence in the host Member State, even if they do not satisfy the traditional inter-State requirement or the requirements regarding self-sufficiency. This begs two obvious questions: 1) why do primary carers enjoy these extensive rights?; and 2) precisely which persons can invoke these more extensive rights? These are the two fundamental questions addressed by my paper. In the first place, I examine the underlying justifications for the ECJ’s holdings, focusing on effet utile and fundamental rights related arguments. I argue that the ECJ’s extensive case law should be welcomed because it enhances the status of EU citizenship and is, in fact, mandated by the need to protect the fundamental right to respect for family life. In the second place, I determine, on the basis of these justifications, the precise scope of the primary carer concept. In this connection, I examine inter alia whether only family members qualify as primary carers and whether multiple primary cares may derive a right of residence from this status. As such the paper tries to shed light on a rather controversial line in recent ECJ case law and aims to make it more insightful. The final part of the paper offers some thoughts on the likely and desirable evolution of this case law, which is still in full development.