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
No comments:
Post a Comment