The basis of regulation of free movement for partial migrants in the EU : correlation between the concepts of Union citizenship and bona-fide residence
thesisposted on 15.12.2014, 10:44 by Oxana Golynker
So far legal analysis of the phenomenon of partial migration in the European Union has been scattered across studies of isolated groups of rights. The aim of this research is to provide a systematic conceptualisation of this area by establishing the role of the concepts of Union citizenship and bona fide residence in a Member State in shaping and protection of socio-economic rights of partial migrants consequent on their right to free movement. On the basis of examination of the experience of other complex political entities, this study aspires to contribute to the theory of European Union citizenship by bringing the issue of rights of economically active persons whose migration pattern deviates from the mainstream free movement of workers and the self-employed within the discourse of Union citizenship. The scope of the rights of partial migrants is delimited by approaching the conflict between the aforementioned categories as an instantiation of the opposition between the national welfare state and the supra-national entity of the European Union. In this connection, this research is focused on such rights as the right to free movement and residence, and the rights in the welfare-related domains of social security, taxation, and housing which are identified by the Commission as particularly complicated, and on the most topical forms of partial migration in relation to which a great number of challenging conceptual problems have been identified. In this thesis a variety of methods is used. Firstly, we use the method of analysis developed within the coherence theory. Secondly, two methods of analysis identified by J Shaw are employed. The first one draws upon the formally identified sources of citizenship rules and rights in the Treaty along with other closely related sources of law in the form of secondary legislation and Court of Justice case law. The second method applies explanatory tools from the contextual citizenship agenda of the Treaty. Finally, the research is based on the comparative law method. The shaping and protection of socio-economic rights of partial migrants in a complex entity such as the European Union is defined by the balance between their status as Union citizens, on the one hand, and their status as bona fide residents, non-bona-fide residents, and non-resident workers and the self-employed tied to the welfare systems of the Member States. The role of the Treaty provisions on Union citizenship as a constitutional basis in protection or partial migrants' rights is still incipient. However, the meaningfulness of the concept of Union citizenship for partial migrants is ultimately defined by the process of approximation of their socio-economic membership in the respective communities of their Member States of residence and work as well as membership in the greater community of the European Union to the ideal of full membership for partial migrants. The coherence of the construct of Union citizenship is tested within this continuum (with reference to specific areas identified in this study) according to the scope of rights enjoyed by partial migrants under Community law.