Definitions

unconditional right

Directive 2004/38/EC on the right to move and reside freely

Introduction

The Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely (Freedom of movement for workers) within the territory of the Member States defines the right of free movement for citizens of the European Economic Area (EEA), which includes the European Union (EU).

This directive is mostly a concentration of existing regulations and directives in one place, although it does also extend the rights of unmarried couples.

While some of the formulations are a bit complicated for historic reasons, the basic premise of the directive is very simple: EU citizens have the right of free movement and residence across the European Union, as long as they are not an undue burden on the country of residence. This right also extends to close family members that are not EU citizens.

After five years, the right of residence becomes permanent, which means it does not depend on any precondition any longer.

This permanent right of residence can be seen as a precursor to a true European Citizenship.

Applicability

The directive applies to any EEA citizen that is moving to a living in an EEA state other than his own. (The exclusion is based on the principle of non-interference with purely national issues). However, it also applies when a European citizen is moving back to his home country after staying abroad for at least 6 months, as defined in the case of Surinder Singhw. For dual citizens with two EEA nationalities the directive can apply in any EEA state. Temporary limitations are in place for the new member states of the EU.

To be fully covered by the European right of free movement, the EEA citizen needs to exercise one of the four treaty rights:

  • working as an employee (this includes looking for work for a reasonable amount of time),
  • working as a self-employed person,
  • studying,
  • being self-sufficient or retired.

These rights are named after the Treaty of Rome, which defines the Freedom of movement for workers. They have been extended over time, and are mainly of historical significance by now, since being self-sufficient has been added to the list. As long a citizen has sufficient money or income not to rely on public funds, he/she exercises one or more treaty rights. If no treaty right is exercised, the right of free movement is limited to three months.

Family members are also covered by the right of free movement, but only as a dependent of the EEA citizen. The right is limited to the EEA state in which the EEA citizen is exercising treaty rights. In certain cases (i.e. divorce after at least 3 years of marriage), the family member can retain the right of residence. A family member is defined as:

  • the spouse (unless in a marriage of convenience),
  • the registered same sex partner (but only in a state where same sex relationships are recognised),
  • a child under the age of 21, or
  • a dependent child or parent (of the EEA citizen or partner).

There is a second category of extended family members, which can be included at the discretion of national legislation. It covers dependent relatives (especially siblings), dependent household members and unmarried/unregistered partners in a "durable relationship".

Status

The right of free movement is granted automatically when the requirements are fulfilled, and it is not subject to an administrative act. However, to prove this right, the EEA citizen and family members can apply for a confirmation this right. These are:

  • a visa, which is only required for non-EEA family members and only in some EEA states,
  • a residence certificate (for EEA citizens) or a residence card (for non-EEA family members), which is valid for 5 years and confirms the right of residence,
  • a permanent residence certificate or a permanent residence card, which certifies the right of permanent residence.

Permanent residence is acquired automatically after exercising treaty rights for 5 years, with absences of less than 90 days per year. Permanent residence removes any restrictions that are in place concerning access to public funds (such as unemployment benefits, a state pension etc), although some of these restrictions are already lifted after a period of 3 months. Permanent residence is only lost after an absence of 2 years.

All applications covered by the directive are free, or require at most a moderate fee similar to comparable national documents.

Disputed Issues and Case Law

While the directive is visionary and has far reaching implications, it is also the product both of a historical development and of conflicting interests. So it is not surprising that it contains unclear requirements and sometimes even contradictory statements, that require further interpretation. The main open questions are presented below.

Does the directive apply if a family member is currently outside of the EEA, or is illegally present in the EEA? The text of the directive seems to imply this, but there is also legal precedence to the contrary. The ECJ has passed a number of unclear judgements on this issue, which leaves a degree of discretion in the implementation. In the case of Akrich (C-109/01 of 23 September 2003), a remark limits the applicability to legal residence of the EEA. However, in the case of MRAX vs Belgium (C459/99) in 2003, the unconditional right of family reunion is reiterated for spouses. In the case The Commission vs. the Republic of Ireland (C-127/08) in 2008, the ECJ has ruled that the non-community spouse of a EEA citizen can move and reside with that citizen in the Union without having previously been lawfully resident in a member state. See this overview of relevant cases, and a treatment of case law in the UK

Does a residence card from one state serve as a visa for another? Again the text of the directive implies this, but it is not made explicit. Within the area of the Schengen Agreement this is not an issue, but the UK and Ireland do not recognise cards issued by other countries.

What are the rights of a separated spouse before or during divorce? While the directive says that the family member is covered until the decree absolute is issued, the rights can be difficult to use. Without the cooperation of the EEA citizen, or if the EEA citizen leaves the country, the non-EEA spouse is left in a legal vacuum.

In which circumstances can the right of free movement apply to the home country of the EEA national? In the case of Suninder Singh (C-370/90), the ECJ rules that a worker can bring his spouse back to his home country after working in another EEA state for at 6 months. However, this judgement was based on previous legislation, and it is unclear whether it also applies to more recent treaty rights.

Implementation

As a Directive (European Union), this text is not directly applicable, but it has to be transposed into the national legislations. It defines a basic right, while the member states can determine in which way this right is granted. The deadline for implementation was the 2006-04-29, although a number of member states have missed this deadline by a few months. The following presents an (still incomplete) overview of the implementation. An implementation report by the European commission is expected in early 2008.

UK

In the UK, the directive is transposed into the Immigration (European Economic Area) Regulations 2006 or EEA Regulations for short. Non-EEA family members require a visa (called EEA Family Permit). The UK law recognises same sex relationships, and it also has a clause for unmarried/unregistered partners. UK citizenship can be acquired one year after permanent residence. All applications (except citizenship) are free of charge, but phoning with questions is expensive. While the implementation is reasonably complete and accurate, the process to get the Residence Card can be lengthy and complicated.

Ireland

There are a number of issues with the implementation.

Ireland does not currently accept application for non-EEA family members from outside of the EEA. Waiting times for the applications can be excessive.

Furthermore, Ireland requires a visa of non-EEA family members of EU-citizens even if they hold 5-year residence cards of another EU-member state on the basis of being a family member of an EU citizen, in breach of Directive 2004/38/EC. For example, the spouse of an EU citizen living and being resident in the UK, Germany or Poland, who is the holder of a 5-year residence card on the basis of their marriage but is of a nationality that normally requires a visa to enter Ireland has the right to visa-free travel in all EU member states under article 5 ("Right of Entry") of Directive 2004/38/EC, quoted below:

“Article 5 - Right of entry […] 2. Family members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law. For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement.

Member States shall grant such persons every facility to obtain the necessary visas. Such visas shall be issued free of charge as soon as possible and on the basis of an accelerated procedure.”

''

Ireland nevertheless continues to require them to obtain visas prior to travel to Ireland (even for short term visits) and the prescribed accelerated procedure for those who do not hold 5-year residence cards, along with those wrongfully required to apply for visas does not appear to be in place or necessarily applied consistently to visa applications of family members of EU citizens in EU countries, resulting in the infringement of their and their family's rights of free movement. As a result of Irish policy on this issue, airlines end up refusing these visa-exempt persons travel to Ireland without a visa, whereby Ireland is spared the problem of appeals under European law at the point of entry. This applies to all visa nationals wishing to travel to Ireland (even if accompanied by their EU family members) from their EU country of residence.

Ireland also has a clause in its implementation of Directive 2004/38/EC, Section 3(2), that requires non-EEA family members to have previously been lawfully resident in another Member State, prior to their move to Ireland either with or to join the EEA citizen exercising Treat rights. The legality of this clause was recently upheld by the High Court, however an appeal has been lodged to the Supreme Court.

The Netherlands

Applications are submitted locally at the "Gemeente" together with the mandatory registration of residence, but they are processed centrally at the "Immigratie- en Naturalisatiedienst" (IND). There is a small charge associated with the application.

Germany

In Germany, the directive is transposed into national law via the Freizügigkeitsgesetz/EU (short FreizügG/EU), which could be translated as freedom of movement law/EU. Wikipedia has a short German article on it. Not all manditory sections of the Directive are included in the Freizügigkeitsgesetz/EU. The applications are handled locally, together with the mandatory registration of residence.

See also

External links

  • press release of the EU
  • summary
  • original text of the directive
  • first corrigendum (which mistakenly calls it 2004/58/EC) - it is unclear what other changes are in this corrigendum
  • second corrigendum (which corrects the naming problem of the previous corrigendum and amends a date for reporting information)
  • a collection of pages on EU interpretations of what the Directive means, and how it is being implemented in each member state
  • Ireland's implementation of Directive 2007/38/EC: Statutory Instrument 656 of 2006 - European Communities (Free Movement of Persons) (No. 2) Regulations 2006
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