Citizens or migrants? Precarious residence in the context of EU citizenship

Abstract

The judgment delivered by the Court of Justice of the European Union (CJEU) in Dano made clear that the conditionality of residence for economically inactive EU citizens is in Directive 2004/38 for a reason, and that it can be interpreted strictly. After an analysis of the trajectory of the CJEU in this field, this Note zooms in on grey areas deriving from State practice, in between lawful residence and expulsion. It then contends that these situations can be understood as the result of a tension among different dynamics of opening and closure, which are deeply embedded in the European citizenship project. By bringing to life the restrictive elements of the Directive, the Dano case facilitates the withdrawal of residence rights of certain EU citizens and allows for their expulsion. And yet, their rights to move freely and re-enter the host State immediately upon expulsion remain untouched, rendering the expulsion of the poor and economically inactive futile in practice. These ambiguities not only unveil the paradox of applying the concepts of illegality and expulsion to EU citizens in the context of European integration and internal open borders, but also facilitate the emergence of "non-removed" citizens. This creates an underclass of EU citizens who are simply "present" in the host Member State, staying unlawfully and without access to rights until, or unless, they are granted a valid residence permit or eventually removed.