Territorial disputes: Brexit (20) [Post 220]

Brexit, European Union Law and Free Movement of Persons

The posts this week centered on European Union citizens and their family members. Yesterday, the post introduced the notion of family member (according to EU Directive 2004/38) and the case of third country nationals and their prior lawful residence (ECJ case law). 

Today, the post presents the cases of death, divorce and some others that may jeopardize the right to reside in a Member State. Finally, the introduction of the right to permanent residence under EU law (not to be confused with the right to apply for the nationality of the Member State in which the EU citizen resides).

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: marriage/partnership must have lasted at least three years, including one year in host Member State; or spouse/partner has custody of children; or he/she has right to access children and a court has ruled that such access shall be exercised in host State; or 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.

Friday 8th March 2019 

Jorge Emilio Núñez

Twitter: @London1701

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