Nalini Chenchooliah v Minister for Justice and Equality.
Date: 2019-09-10
54


That having being clarified, it is appropriate to observe, first of all, that, in accordance with Article 3(1) of Directive 2004/38, Union citizens who move to or reside in a Member State other than that of which they are a national, and their family members, as defined in Article 2(2) of that directive, who accompany or join them, fall within the scope of the directive and are beneficiaries of the rights conferred by it (judgment of 14 November 2017, Lounes, C‑165/16, EU:C:2017:862, paragraph 34 and the case-law cited).
58


As the Court has previously held, the words ‘family members [of Union citizens] … who accompany … them’ in Article 3(1) of Directive 2004/38 are to be interpreted as covering both the family members of a Union citizen who entered the host Member State with that citizen and those who reside with that citizen in that Member State, without it being necessary, in the latter case, to make a distinction according to whether the third-country nationals entered that Member State before or after the Union citizen or before or after becoming members of his family (judgment of 25 July 2008, Metock and Others, C‑127/08, EU:C:2008:449, paragraph 93).
61


As the Court has observed, that requirement, which is also set out, inter alia, in Article 6(2) and Article 7(2) of Directive 2004/38, is consistent with the purpose of and justification for derived rights of entry and residence which that directive provides for family members of Union citizens. The purpose of and justification for such derived rights are based on the fact that a refusal to allow such rights would be such as to interfere, in particular, with the effective exercise by the Union citizen concerned of his right to freedom of movement and the exercise and effectiveness of the rights which Article 21(1) TFEU confers on such a citizen (see, to that effect, judgments of 8 November 2012, Iida, C‑40/11, EU:C:2012:691, paragraphs 62 and 63, and of 14 November 2017, Lounes, C‑165/16, EU:C:2017:862, paragraph 48).
62


Furthermore, the concept of ‘beneficiary’ within the meaning of Article 3(1) of Directive 2004/38 is a dynamic concept in that, even though acquired in the past, the status of beneficiary may subsequently be forfeited if the requirements laid down by that provision are no longer met (see, by analogy, judgment of 14 November 2017, Lounes, C‑165/16, EU:C:2017:862, paragraphs 38 to 42).
63


In that context, the Court has held that the application of Directive 2004/38 solely to the family members of a Union citizen who ‘accompany’ or ‘join’ that citizen within the meaning of Article 3(1) of the directive is equivalent to limiting the rights of entry and residence of family members of a Union citizen in the Member State where that citizen resides (judgment of 25 July 2008, Metock and Others, C‑127/08, EU:C:2008:449, paragraph 94).
64


The Court added that, from the time when a third-country national who is a family member of a Union citizen derives rights of entry and residence in the host Member State from Directive 2004/38, that State may restrict those rights only in compliance with Articles 27 and 35 of the directive (judgment of 25 July 2008, Metock and Others, C‑127/08.
EU:C:2008:449, paragraph 95).
87


As indicated in paragraph 65 above, the provisions of Articles 27 and 28 of Directive 2004/38 are applicable only if the person concerned currently derives from that directive a right of residence in the host Member State which is either temporary or permanent (see, to that effect, judgment of 25 July 2008, Metock and Others, C‑127/08, EU:C:2008:449, paragraph 95).