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
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