Yesterday, the post covered a highly controversial issue that was one of the pillars of the Brexit campaign. It is the usual misunderstanding that anybody having European Union citizenship may move to any other Member State legally, seek for work and claim benefits. We learnt it is not that easy. Today, the post refers to another highly controversial issue: family members. When a Union citizen moves to another Member States, can he/she bring all his/her family?
Rights to Movement of Family Members
The key secondary legislation and relevant ECJ judgments below.
Directive 2004/38 art. 7 (1) (d): Right of residence extended to family members who are Union citizens, accompanying or joining Union citizen.
Directive 2004/38 art.7 (2):Right of residence extended to family members who are not nationals of a Member State, accompanying Union citizen. This applies to family members who are third country nationals.
Who is a “family member”?
Directive 2004/38 art. 2 (2):
a) Spouse: legally married person – Netherlands v Reed (59/85). Person to whom the European Union citizen is married under laws of State where marriage was entered into. COM (2009) 313: “Marriages validly contracted anywhere in the world must be in principle recognised for the purposes of the application of the Directive”. It does not include cohabitation.
b) Partner with whom Union citizen has contracted registered partnership (if law of host Member State treats such partnerships as equivalent to marriage). In other words, only if partnership is recognized by both home & host State will registered partner enjoy rights.
c) Direct descendants who are under age of 21 or are dependants and those of spouse/registered partner.
d) Dependent relatives in ascending line and those of spouse/registered partner (for example, parents and grandparents).
Directive 2004/38 art. 3 (2): a Member State facilitate entry and residence of:
a) Any other family members, irrespective of nationality, who are dependents or members of household of Union citizen (having primary right of residence) or where serious health grounds require care of family member.
b) Partner with whom Union citizen has durable relationship. The term not defined in Directive, although the European Union Commission has suggested it could be determined by reference to certain minimum period of being together.
Prior Lawful Residence Principle
Metock (C-127/08) the rights for genuine third country nationals spouses to reside with European Union citizens in host Member State apply irrespective of:
a) Where marriage took place (whether in home or host Member State or elsewhere).
b) How the third country national entered the host Member State (whether lawfully or not).
c) Whether or not the third country national spouse lawfully resided in a Member State prior to movement to host Member State.
The Continuance of Free Movement Rights
Directive 2004/38 art. 12 (1):Death/departure not affect right of residence of European Union citizen family members.
Directive 2004/38 art. 12 (2): No loss of right of residence for third country national family members on death providing been residing in host Member State for one year before citizen’s death (not applicable to departure).
Directive 2004/38 art. 12 provides that right of permanent residence for remaining third country national family member subject to status as worker/self-employed person or sufficient resources and sickness insurance.
Directive 2004/38 art. 13 (1): Retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership.
Directive 2004/38 art. 13 (2): Not entail loss of right of residence of Union citizen’s family members not nationals of Member State. But:
a) marriage/partnership must have lasted at least three years, including one year in host Member State; or
b) spouse/partner has custody of children; or
c) he/she has right to access children and a court has ruled that such access shall be exercised in host State; or
d) warranted by particularly difficult circumstances such as victim of domestic violence.
Right of permanent residence
Directive 2004/38 art. 16 (1): Union citizens having resided for continuous period of five years in the host Member State have right of permanent residence there.
Note the right not dependent on the Union citizen being a worker/self-employed or having sufficient resources/medical insurance.
Directive 2004/38 art. 16 (2): Right of permanent residence available to family members not nationals of Member State having legally resided with Union citizen in host Member State for continuous period of five years.
Directive 2004/38 art. 16 (3): Continuity of residence not affected by:1) Temporary absences not exceeding total of 6 months a year; 2) Absence of longer duration due to compulsory military; 3) One absence of maximum of 12 consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training or posting in another Member State or 3rd country.
Directive 2004/38 art. 16 (4): Loss of right through absence from host Member State for a period exceeding two consecutive years.
Jorge Emilio Núñez
12th July 2018