The European Union Court Of Justice Law European Essay

Published Date: 02 Nov 2017

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Dr Soiderdine Hajimaditchama is an Italian citizen, and therefore qualifies for the European Union citizenship. This is because Italy is part of the Union. Cathy is wife, is a Papuan citizen, and she is married to Dr. Soiderdine for five years. The Italian Law number 91 of the 1992 gives her the right to possess the Italian nationality. The law sets a benchmark of three years of stay in marriage. Due to her emotional problems, Cathy sought to re-unify with her four children, whom she left in Papua.

However, according to the laws of New Caledonia, there is no provision for family re-unification with children, and the best relief that Cathy can get is applying for help at the European Court of Justice. In her application, Cathy argued in terms of the right of free citizenship movement, and the family re-unification directive.

However, the tribunal the local tribunal sought an application to the European Court of Justice seeking to identify whether these directives over rule the New Caledonian Law. In analyzing the freedom of freely moving, and whether the application of this law in New Caledonia amounts to overruling their laws, it is essential to define citizenship (Kochenov, 2012). Under article 17 (1) of the European Union laws, a citizen of the European Union is a person who is a national of a member state.

Section 12 of the amended European Commission treaty provides for certain rights to citizens of the European Union, and amongst them includes the right of non-discrimination, and this applicable within the provisions of the treaty. Article 18 of the amended EC treaty gives individuals the right of free movement within member’s states, but under some limitation. This right of free movement is limited to the spouse, and to their children. In the case involving the Home Department secretary of State, against Chen Lavette, the European Union Court of Justice ruled that a European Union Citizen, has the right of residing in member states of the European Union, and this right does not contravene the laws of the member state (Sawyer and Blitz, 2011).

In the case law, Catherine Chen was born in Northern Ireland; and therefore entitled to receive the Irish Citizenship. Mrs. Chen obtained an Irish passport for her, with the intention of using her child’s status to reside in Wales. However the British authorities refused to grant her residency permit, and refereed the case to the European Court of Justice which ruled in her favor (Wiesbrock, 2010). The ECJ denoted that the child was a citizen of European Union, and she had the right to reside anywhere in Europe, and since she was unable to take care of herself, she needed her parents, and therefore it is there right to obtain residency permits. Cathy is a citizen of the European Union because of her marriage relationship with Dr. Soiderdine. On this note, she has a right to reside in New Caledonia.

However she is emotionally unstable, and needs the attention of her children. These children have a right, under the European Laws to reside in New Caledonia because of the citizenship rights of their mother. This is the precedent set forth in the case law involving Catherine against the British department of home affairs. The state of New Caledonia must observe the principle of non-discrimination in granting them this right (Kochenov, 2013). This principle is one of the rights of European Union citizens.

Cathy, can appeal to the European Union Court of Justice, by stating the right of family re-unification in seeking residency for her children. According to article number 8, of the charter establishing the human rights of the European Union citizens, family re-unification is important in maintaining and protecting the family lives of residents (Wiesbrock, 2010). Section 4, of the preamble to the European Union citizenship directive, supports this notion. Section 4 states that family re-unification is an important process of creating a socio-cultural stability that facilitates the incorporation of a non-citizen into a member state.

The three children of Cathy are non-citizens of the European Union, and family re-unification is a method of incorporating them into the state of New Caledonia. In the case involving the Minister of equality, law, and justice reform against Metlock and others, the European Court of Justice ruled that preventing migrant citizens from moving with their families is unlawful under the rights of citizens established by the Citizenship directive 2004/38 (Kochenov, 2013). The directive allows for free movement and right to non-discrimination. In the case, Hanette Metlock was a Cameroonian, while Ngong was a British citizen. Hanette married Ngong in 2006, in Northern Ireland.

The two had children before they were married, and who were not nationals of Britain. When Hannete applied for a residency permit, as the wife of a citizen of the European Union, the British government referred the case to the European Court of Justice (Wiesbrock,, 2010). The European court of justice ruled that it is the legislature of the Union that has the capability of regulating entry of the family members of a citizen of the European Union. The court ruled that article number 8 of the European Human Rights convention, it is the duty of the Union to protect and respect the family life of citizens of the Union . On this basis, these rulings by the European Court of Justice do not in any way over rule the laws of New Caledonia. This is because states do not regulate free movement of people, but the legislatures from the Union.

Despite these arguments, the State of New Caledonia limits the rights of European Union citizens to enforce the element of acquis in propagating for their rights. The state limits the application of these rights to regional citizens only; therefore European Union Citizens cannot rely on the provisions of the treaty to reside in the state. This is discrimination, and violation of the human rights propositions contained in article 8 of the European Human Rights laws. Basing on these arguments therefore, the European Court of Justice does not over rule the New Caledonian Law, but protects justice and human rights.