Gloss to the Judgement of the Court of Justice of the European Union in Case C 129/18, SM versus Entry Clearance Officer, UK Visa Section

Abstract

The right of family members of Union citizens to live with them in the host Member State has always been considered essential for an effective freedom of movement of citizens. However, the provisions of Directive 2004/38/EC2 contain a different description of the scope of authority of Union citizens family member, taking advantage of the freedom of movement of persons as to the possibility of accompanying or joining EU citizens taking advantage of the freedom of movement of persons, depending on whether they belong to the circle of “closer” or “distant” family members. This issue acquires particular significance in the context of family members who are not citizens of any Member State of the Union. For individuals belonging to the circle of “closer” family members, the EU legislator grants the subjective right to accompany or join a Union citizen exercising the right of the freedom of movement of persons. In the latter case, the legislator only obliges the host Member States to facilitate entry and residence for such individuals in accordance with their national legislation. The glossed judgment, by * M.A., researcher and lecturer at the Department of Roman Law of John Paul II Catholic University of Lublin, katarzyna.woch@kul.pl, ORCID: 0000–0003–1176–6135. 1 Judgment of the Court of Justice of the European Union of 26 March 2019, C 129/18, SM versus Entry Clearance Officer, UK Visa Section, OJ C 134 of 16th April 2018; hereinafter: judgment C 129/18. 2 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No. 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/ EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC [Text with EEA relevance], OJ L 156 of 30 April 2004; hereinafter: Directive 2004/38/EC.