Protection of Families Composed by EU Citizens and Third-country Nationals: Some Suggestions to Tackle Reverse Discrimination

Abstract:

The CJEU, both in cases concerning EU moving and EU static citizens, is now recurring to the concept of EU citizenship in order to grant or denying the right of residence of third-country national family members of EU nationals. The aim of this article is to determine whether the EU citizenship method adopted by the Court in order to grant third-country nationals’ residence rights is capable of providing fair protection to family units composed of EU citizens and third-country nationals. In this article it will be shown that solving family reunification cases involving EU citizens and third-country nationals through the concept of EU citizenship can be positive and negative at the same time, being the negative side the issue of reverse discrimination. I will suggest that the best solution in order to grant better protection for families composed by EU citizens and third-country nationals would be to continue endorsing the EU citizenship approach but, at the same time, to try to solve the issue of reverse discrimination. Out of the several proposed options that could potentially solve this issue, I argue that the intervention of the European legislator over Article 20 TFEU and Directive 2004/38/EC seems to be the most desirable.