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Accepted Paper:

Bordering ingeniousness by lawfulness - the creative use of overlapping legal systems in family reunification  
Hester Kroeze (Ghent University)

Paper short abstract:

Conditions to family reunification are governed both by European law and national law. This overlap creates tensions and questions of equality, but also offers the opportunity for families to pursue the most favourite regime. The paper explains existing tensions and the strategies to deal with them.

Paper long abstract:

EU-directive 2004/38/EC regulates the free movement of persons in the European Union and protects the right of all Union citizens and their family members to travel to- and/or reside on the territory of all Member States of which they do not have the nationality, under favourable conditions. These family members may be other Union nationals, but they may also be third country nationals with or without a permit. The ratio of this set up is to make cross-border movement within the Union as attractive and easy as possible. The European regimes contrasts with family reunification law at the national level, which is often more stringent. The result thereof is the emergence of a creative use of Union law that serves to legalize an illicitly residing third country national family member of a Union citizen through movement between Member States. Moreover, the case law of the European Court of Justice provides for the possibility to 'take once acquired rights back home' (C-370/90 Surinder Singh, ECLI:EU:C:1992:296), which allows for the application of a U-turn construction to avoid national immigration law - the so-called 'Europe-route'. This paper elaborates on the question whether this behavior is lawful or should be addressed as abuse of law. The main question that is addressed is: 'To what extent does family reunification on the basis of Directive 2004/38 Amount to Abuse of Law?'

Panel P066
The impact of law on transnational families' staying, moving and settling
  Session 1 Wednesday 15 August, 2018, -