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This contribution examines the role of the duration of lawful residence and the assessment of the facts of the individual case for the determination of the rights of (European) Union citizens and their family members by the Court of Justice of the European Union. While the Court initially embraced an approach which aimed at furthering and strengthening the rights of Union citizens, a conceptual shift has become visible over the last couple of years which seems to aim at limiting Union citizen’s rights. This article seeks to shed light on the underlying rationale of the Court’s judgments regarding Union citizens and their third-country family members by focusing on the application of the criterion of an individual assessment and the criterion of the duration of lawful residence respectively. To that end, it examines the Court’s case law in four selected areas of European Union law: the protection against expulsion, the right of permanent residence, access to non-contributory cash benefits, and the right of residence of third-country family members of Union citizens upon return to the latter’s Member State of nationality after having exercised free movement rights. It is submitted that the Court’s application and interpretation of these criteria in the areas under scrutiny seems to be driven primarily by the aim to limit citizens’ rights and not by the attainment of legal certainty which has been brought forward by the Court.
