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Alokpa and Moudoulou – Union citizenship rights clarified? Redefining the Ruiz Zambrano decision

In October 2013 the Court of Justice of the European Union decided on yet another family reunification case involving a third-country national. Alokpa and Moudoulou brings with it a whole other set of facts. It concerned a Togolese national who came to Luxembourg, where she was refused international protection. However, she gave birth to twins in Luxembourg, who required further care due to their premature birth. Some days after their birth, Mr Moudoulou, a French national, recognised paternity of the twins. As a result of this, the boys became French nationals and were issued French passports and identity cards. No contact was maintained with the father, and mother and sons lived together in Luxembourg as a family in a hostel and were dependent on the State. Mrs Alokpa was offered a job for an indefinite period in Luxembourg, but her lack of residence and work permit impeded her from working.

When the mother’s application for a residence permit as a family member of a European Union citizen was rejected, the authorities reasoned that the children could easily receive follow-up medical treatment in France. The referring court in Luxembourg then acknowledged that the situation in the case had similarities to the case of Ruiz Zambrano, but noted that the difference was that the children did not live in the country of their nationality.

CJEU ruling

The Court of Justice ruled that Article 21 TFEU and the Directive 2004/38 grant Mrs Alokpa and her children a right to reside in the host Member State if the children are nationals of another Member State and if the parent is the minors’ primary carer (here the Court cited the previous case Zhu and Chen). The Court therefore held that the mother and her sons could continue to live in Luxembourg under the Directive.

However, this is not the surprising part of the decision. It really gets interesting once the CJEU turns to the application of Article 20 TFEU. The Court determined that if Article 21 did not apply, it would have to consider whether due to the refusal of Mrs Alokpa’s residence permit, her children would be obliged to leave the territory of the EU altogether; and thus be denied the genuine enjoyment of the substance of their EU rights. The Court concluded, following the Opinion of AG Mengozzi, that being forced to leave Luxembourg would not result in an obligation to leave the whole territory of the EU, as the children were French nationals. Mrs Alokpa therefore has the right to reside in France as the sole caregiver of minors. And thus, the refusal by the Luxembourg authorities does not constitute a deprivation of the genuine of enjoyment of the boys’ EU rights.

Comment

The decision in Alokpa and Moudoulou makes some interesting points on the relationship between Member State nationality and Union citizenship. Firstly, the Court, by ignoring this issue completely, is not interested in how a Union citizen gets this status. The Court does not consider the possibility that the twins may have obtained their French nationality through fraud, instead it follows previous decisions such as Zhu and Chen. It can be inferred that the Court leaves the acquisition of Union citizenship up to the Member States, however it does get involved in cases on the loss of that status.

In the present case, the Court effectively says that whilst Mrs Alokpa and her sons cannot make use of their Article 20 TFEU right in Luxembourg, they could move to France and make use of it there. In France, the twins would then be in exactly the same situation as the Ruiz Zambrano siblings and, living in the country of their nationality, the CJEU would have to protect their Union citizenship rights. What the Court of Justice seems to suggest is that the Member States have ultimate responsibility over their nationals. In this case, France has more of a responsibility for the twins than Luxembourg, or any other Member State for that matter.

Whilst Ruiz Zambrano is not cited once in the Alokpa decision, it is clear that the Court makes a very narrow interpretation of the case. Interestingly, it implies however that Ruiz Zambrano still stands, by advising the family to move to France. Thus, the existential and fundamental protection of a person rests with his state of nationality or origin. The Court is essentially saying that the more fundamental status of Union citizen is Member State nationality. Union citizenship might therefore not represent the federal concept that others have suggested it to be.

Maria Haag

LLB Student, Durham Law School

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