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Intro & Class Questions EU LAW

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  Unit 5: Internal Market: Free Movement of Persons (workers) and (citizenship)   TUTORIAL 5: FREE MOVEMENT OF PERSONS IN PROBLEM SCENARIOS To tackle a problem question, you will need to address the followings Identify the legal issues raised in the factual scenario. Try to articulate your answer as concisely as possible Explain the applicable law using relevant legal authorities. Apply to the facts of the scenario. Have you considered all relevant legal avenues? Conclusion: do your clients have a claim and, if so, how strong or weak is it? For example….  Erin is UK national and her registered civil partner, Paula, is Spanish. Their civil partnership was created in the UK. Erin has been living and working in Germany, for NASA, for four years. Paula has been living with Erin for all of this time but has not been economically active because she is the primary carer for her six-year old son, Patrick. Erin is injured in an accident at work and is unable to continue in her employment. Paula, who is a qualified and experienced nurse, decides to seek employment because Patrick is starting school. When she visits the German job centre she finds that there is a separate section for non-German jobseekers with a very limited number of jobs made available. She is told that jobs in state owned hospitals are reserved for German nationals because they are public service jobs. However she finds details of a position as a nurse in a private hospital. She applies for this post but is unsuccessful because the hospital prefers nurses who qualified in Germany. Paula applies for a state benefit, which is given to all unemployed German parents, but this application is refused because she is not a German citizen. Bored and in pain, Erin uses cannabis for which she is arrested, convicted and fined. Five months after Erin’s accident the German authorities tell her that she must leave the country because she is unlikely to ever fully recover from her injuries and work again and she is a convicted criminal. Paula is also told to leave because she has failed to find work and her application for state benefits proves she is becoming a burden on the state. Advise Erin and Paula. WORKSHOP 5 : FREE MOVEMENT OF PERSONS Essential cases Levin v Staatssecretaris van Justitie (Case 53/81 [1982] ECR 1035) Kempf v Staatsecretaris van Justitie (Case 139/85 [1986] ECR 1741) Lawrie-Blum v Land Baden-Württemberg (Case 66/85 [1986] ECR 2121) Steymann v Staatsecretaris van Justitie (Case 196/87 [1988] ECR 6159) Commission v Belgium  (Case 149/79 [1982] ECR 1845) Cristini v SNCF  (Case 32/75 [1975] ECR 1085) Secondary legislation Directive 2004/38 Reg 492/11    1. Analyse critically how the CJEU has expanded the meaning of workers and applied derogations narrowly in order to give full effect to FMoP as envisaged in Art3 TEU. 2. Free Movement of Workers and family members –  Problem question a)   Advise whether Paul and Tracy are  entitled to free movement and on what basis? Paul is a British artist. He has been living happily in London with his long term Malaysian girlfriend, Tracy. However, his recent work has been uninspiring and sales have dried up. Paul decides to move to Spain in the hope that a change of environment will boost his creativity. Whilst he waits for sales of his work to improve, Paul lives partly on benefits and partly as a seasonal worker in the farming industry. Tracy soon decides to join him. They find the place so romantic that they decide that they will get married on the Costa del Sol during the following summer. Tracy soon becomes pregnant. A baby daughter, Gin Yi, is born the following year. b)   Assuming the entitlement to FMoP has been established, advise whether the extensive equal treatments rights  guaranteed in Regulation 492/2011 and case law should apply to the following: Paul and Tracy are now getting into serious debts. Paul decides to set the art aside until better times come and look for a ‘proper job’. In the job centre there is a separate section for non -Spanish jobseekers with a very limited number of jobs made available. Tracy decides to seek employment as a nurse. She is told that jobs in state owned hospitals are reserved for Spanish nationals because they are public service jobs. c)   Advise as to the application of the FMoP rules should Paul or Tracy loose their status   (such as loss of employment, family breakdown etc…) The financial situation has put a serious strain on Paul and Tracy’s relationship. Two years after their romantic wedding, Paul and Tracy separate. Tracy moves to another Spanish seaside resort together with their daughter. Tracy is now contemplating obtaining a divorce from Paul. The Spanish authorities have refused to renew her residence permit on the ground that she is no longer living with her husband and she is not a EU citizen. Gin Yi would also have to go as she is too young to look after herself and needs a parent. d)   Advise as to whether Paul may be deported on the grounds that he has a previous conviction for armed robbery. 3. Jens is a Danish citizen. When travelling around Italy, he meets and joins an occult group, The Visionaries. They require him to work within the Community, where he will be supported. He works as a gardener with special responsibility for fruit trees. The fruit are sold to raise money. After 2 years, he contacts The European Association Against Cults (EAAC) and they get him out and into a safe house in Florence. He is now unable to work and supported by an EAAC fund. He wants to claim disability benefit, but the Italian authorities refuse. Whilst in Florence, Jens meets and falls in love with Iva, an Australian national. They decide to set up home in Sicily and get married. Jens is now fully recovered and is working as a salesman, but Iva becomes pregnant and decides to be a full time mother.  Jens is made redundant and gets involved with the Mafia. The Italian authorities want to deport him, but Iva wants to remain in Sicily with their son.  Advise Jens and Iva as to the application of the law on the free movement of persons to their respective situations
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