Can She Stay, or Must She Go…? Spouses’ and Family Members’ Retained and ‘Derived’ Residence Rights after Ibrahim and Teixeira

The paper critically examined aspects of EU and Member States' restrictions on access to labour and social rights by the family members of European Economic Area nationals who are unable to demonstrate the requisite 'residence' rights - for example if they have been divorced or are separated, and are otherwise unable to come within the narrowly defined categories for retention of residence rights, whether at EU or national level. In the case of the United Kingdom, this required a close analysis of incompatibilities between provisions in the Citizens Directive (Dir 2004/38) and the UK's 'right to reside' regime. Typically, difficulties have been experienced by, in particular, groups like third country nationals who may have been married to, or living with, EU nationals but who cannot come within explicitly prescribed routes to retention, and instead have utilise so called 'derived' residence rights - particularly as a means of establishing access to social rights. The paper included an analysis of the problems highlighted by leading cases like Ibrahim and Teixeira (both referred to the ECJ/CJEU by UK courts).