Dear Sophie,
Articles 45-48 of Treaty on the Functioning of the European Union sets out the fundamentals imposed on member states to aid free movement of workers. More specifically, Article 45 outlines 'freedom of movement for workers shall be secured within the Union'.
With regards to Sophie moving to Italy, Directive 2004/38 highlights the rights of an EU citizen to reside in another member state under Articles 6-7. Furthermore, Foster highlights the rights under Article 6 of Directive 2004/38 are 'not restricted to the economically active'. However, Article 7(1)(a) of Directive 2004/38 provides 'all Union citizens shall have the right of residence on the territory of another Member State for a period longer than three months if they: are workers'. As a result of this, it is clear Sophie could reside in another member state for three months and for more than three months if she is a worker.
On the one hand, if Sophie were to secure a job in Italy then it is necessary to address the definition of a 'worker'. This definition is provided by EU case law as there is no treaty definition. In addition, it can be seen that the court aims to maximise who can exercise the right through a broad interpretation. Catherine Barnard supports this point by writing 'although there is no definition of the term 'worker' in the Treaty, the Court has insisted that it be given a broad Community meaning'. This point is further supported by Hoekstra where the court highlighted that if the definition were a matter of national law there would be a possibility 'for each Member State to modify the meaning of the concept of 'migrant worker' and to eliminate at will the protection afforded by the Treaty'. Furthermore, Lawrie Blum addresses the issue of a definition of a 'worker' when the court said 'a person performs services of some economic value for and under the direction of another person in return for which he receives remuneration'. Therefore, it is clear Sophie could reside in Italy for more than three months as a worker provided that for a certain period of time she performs services for, and under the direction of another, in return for remuneration.
On the other hand, if Sophie does not secure a job in Italy straightaway then she will be classed as a 'job seeker' and could rely on two pieces of legislation. Firstly, Article 45(3)(a) and (b) provides 'it shall entail the right… to accept offers of employment actually made and; (b) to move freely within the territory of Member States for this purpose'. Additionally, job seekers can rely on Article 6(1) of Directive 2004/38 since it demonstrates that Union citizens have 'the right of residence… up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport'. Accordingly, Sophie could reside in Italy as a job seeker for at least three months.
However, a question remains regarding how long after three months Sophie would be able to reside whilst being a job seeker. This issue was addressed in Antonissen where the court said 'persons concerned must be given a reasonable time in which to apprise themselves… of offers of employment' and six months was considered a reasonable period of time. Furthermore, de Burca and Craig address the courts broad interpretation to facilitate the free movement of workers when they argued this case 'provides a clear example of the Court's purposive approach'. As a consequence, it is clear the courts are willing to widen the scope of Article 45 to ensure the free movement of workers. Therefore, Antonissen is evidence that Sophie would be able to reside as a job seeker for a reasonable period of time.
Additionally, Commission v Belgium confirms this as the court referred to Antonissen by confirming that if on the termination of the reasonable period of time 'the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged, he cannot be required to leave the territory of the host Member State'. Article 14(4)(b) of Directive 2004/38 confirms the judgements in these two cases. Therefore, it is clear Sophie would be able to reside in Italy as a job seeker beyond the reasonable period of time as long as she provides the necessary evidence.
As for the language restriction placed on Sophie from being able to secure a teaching job, Nigel Foster highlights 'Article 3(1) of Regulation 492/2011 permits member states to impose a requirement of linguistic ability on non-nationals according to the nature of the post to be filled'. However, it can be argued the scope of this requirement is specific to the facts of the case. This is shown in Groener where the court decided the requirement that teachers in Ireland must speak the Irish language was allowed provided that 'the level of knowledge required is not disproportionate in relation to the objective pursued'. The proportionality test was also applied in Haim II regarding a language restriction in dental practice the court said 'it is in the interest of patients whose mother tongue is not the national language that there exist a certain number of dental practitioners who are also capable of communicating with such persons in their own language'. Therefore, it can be argued the language restriction placed on Sophie is justified as long as it is proportionate.
Regarding Sophie applying for social assistance, Article 7(2) of Regulation 492/2011 provides that a migrant worker 'shall enjoy the same social and tax advantages as national workers'. This legislation was confirmed in Even when regarding rights the court said 'all those which… are generally granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their residence'. Although this evidence suggests Sophie could be granted social assistance, Article 24(2) of Regulation 2004/38 suggests the contrary when it says 'the host Member State shall not be obliged to confer entitlement to social assistance during the first three months of residence'. Peers furthers this point by writing 'according to Art 24(2) of Directive 2004/38 access to 'social assistance' benefits can be denied to first-time job seekers, for as long as they are seeking work, and to all EU citizens during their first three months of residence'. A case supporting this is Dano v Jobcenter Leipzig where the court decided that relevant legislation 'must be interpreted as not precluding legislation of a Member State under which nationals of other Member States are excluded from entitlement to certain 'special non-contributory cash benefits'. Consequently, this evidence suggests Italy would ultimately decide whether Sophie would be granted social assistance.
However, as Hailbronner highlights, Collins suggests it would be possible for Sophie to receive a variation of social assistance as this case upheld the payment of a jobseekers allowance to migrants. In Collins the court said 'it is no longer possible to exclude from the scope of Article 48(2) … a benefit of a financial nature intended to facilitate access to employment'. Furthermore, Hailbronner argues that Union citizenship is a key element of the courts reasoning in these cases. For example, in Grzelczyk where the court said, 'Union citizenship is destined to be the fundamental status of nationals… enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality'. Another case which demonstrates this point is Jobcenter Berlin Neukolln v Alimanovic where the court held 'a Union citizen could claim equal treatment with nationals of the host Member State under Directive 2004/38 art.24(1) with regards to social assistance only if his residence in the territory of the host Member State complied with the conditions' of the Directive. Therefore, these cases and legislation provide evidence of the possibility for Sophie to receive a form of social assistance due to her being a resident job seeker and if she found herself in the same situation as a national who would be able to apply for social assistance.
Finally, regarding whether Antonio could be deported from the UK, Article 45(3) provides grounds for which EU nationals could be refused entry or be deported from another Member State. However, in Antonio's case, Article 27(2) of Directive 2004/38 is relevant as it provides 'previous criminal convictions shall not themselves constitute grounds for taking such measures'. The case of Bouchereau confirms this as the court said the relevance of previous criminal convictions is 'only in so far as the circumstances which gave rise to them are evidence of person conduct constituting a present threat'. Consequently, it is clear Antonio would not be deported based on his previous criminal conviction.
As a result of the analysed case law and legislation, it is clear Sophie could move Italy as a job seeker and there is strong evidence that some social assistance would be available. However, whether a language restriction would be justified is dependent a proportionality test. Finally, Antonio would not be deported.
Katy