Territorial disputes: Brexit (19) [Post 219]

With Brexit happening soon, today, the post refers to another highly controversial issue: European Union citizens and their family members. Currently, when a European Union citizen moves to another Member State, 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): 

  • 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 recognized for the purposes of the application of the Directive”. It does not include cohabitation.
  • 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 and host State will registered partner enjoy rights.
  • Direct descendants who are under age of 21 or are dependents and those of spouse/registered partner.
  • 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:

  • 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.
  • 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

An important point to many third country nationals who are legally married to a European Union citizen is whether they can reside in a host Member State and the conditions to do so. The answer comes from the ECJ case law:

Metock (C-127/08) the rights for genuine third country national spouses to reside with European Union citizens in host Member State apply irrespective of:

  • Where marriage took place (whether in home or host Member State or elsewhere).
  • How the third country national entered the host Member State (whether lawfully or not).
  • Whether or not the third country national spouse lawfully resided in a Member State prior to movement to host Member State.

Thursday 7th March 2019 

Jorge Emilio Núñez

Twitter: @London1701

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