In its decision of 16 April 2021, the 9th Senate of the Hessian Administrative Court ruled that a Union citizen who was employed as a worker in a temporary employment relationship and became unemployed through no fault of his or her own did not acquire a permanent right of residence under section 4a(1) of the Freedom of Movement Act/EU due to the fiction of being an employee for several years.
Pursuant to section 2(3) sentence 1 no. 2 of the Freedom of Movement Act/EU, the right to freedom of movement is retained, inter alia, for involuntary unemployment confirmed by the competent employment agency after more than one year of employment. According to the case law of the Court of Justice of the EU, the continued validity of the right to freedom of movement is not limited in time. If a limitation of the continued validity of the employment status cannot be considered by limiting the duration of the continued validity, the limitation of the legal status shifts to the substantive requirements that have to be fulfilled in order to maintain the employment status. The question of how long the period of continued employment status lasts cannot therefore be determined in the abstract; the relevant factor is always the individual case.
The possibility for a Union citizen to retain employment status is thus linked to the proof in the concrete individual case that he or she is available to the labour market of the host state. In doing so, they must not only make themselves available to the labour administration, but also make the necessary personal efforts to find a job. Furthermore, the Union citizen must be able to reintegrate into the labour market within a reasonable period of time and thus be able to pursue a professional activity.
The assessment of a reasonable period of time within which a Union citizen is (or was) capable of reintegrating into the labour market of the host Member State is determined, in the opinion of the 9th Senate, by the concrete overall circumstances of the respective individual case. In particular, the length of time since the beginning of involuntary unemployment must be taken into account. The longer a Union citizen has been involuntarily unemployed, the higher the requirements for demonstrating the Union citizen's ability to reintegrate and the more likely it is to be justified to assume that he or she is no longer capable of reintegrating into the labour market. In addition, the personal circumstances of the person concerned, such as age, language skills, educational and vocational training and any criminal record, also play a role.
The 9th Senate makes an important statement with reference to the history of the origins of the relevant regulations of Union law:
"As a rule - subject to special circumstances of the individual case - it can no longer be assumed after at least two years of unemployment that the Union citizen is capable of reintegration into the labour market. This view, which is represented in the literature, is convincingly justified for the deciding senate by the fact that the maximum duration of the entitlement to unemployment benefits, depending on the respective age, is only up to 24 months".
This decision, which was comprehensively substantiated, is to be agreed with without reservation.
