Update: Historically, some EU member states (Ireland and the UK specifically) were requiring family members to have “previously resided” in the EU. The ECJ case of Metock brought an end to that requirement. But the various ways you can define residence is still interesting. This is what EU law says…
If you are an EU citizen or family of an EU citizen, then you are generally legally considered to be “residing” in whichever member state you are physically in, so long as you meet a few basic requirements. This is true for short periods (a weekend visit) or for long periods (a lifetime).
EU citizens have unconditional right to reside in any member state for periods of under three months (see Article 6 below). There are no requirements that you work, or that you ask permission, or that you have money. “Unconditional“!
As long as you are self sufficient, working or studying, you also have a right to reside in a member state for a longer period of time (see Article 7 below).
In all cases, as long as the EU citizen is legally resident in a country, the family of EU citizens have the same right to be there.
The core requirements for “residence” (for EU citizens and their families) comes from Directive 2004/38/EC:
Directive 2004/38/EC
CHAPTER III
RIGHT OF RESIDENCE
Article 6 – Right of residence for up to three months
1. Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport.
2. The provisions of paragraph 1 shall also apply to family members in possession of a valid passport who are not nationals of a Member State, accompanying or joining the Union citizen.
Article 7 – Right of residence for more than three months
1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:
(a) are workers or self-employed persons in the host Member State; or
(b) …[are self sufficient]
(c) … [are a student]
(d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).
As this Directive has been transposed into the law of each European member state, so to have these requirements for residency.
The UK transposition of Directive 2004/38/EC has the corresponding language in describing UK requirements for residency in the UK:
The Immigration (European Economic Area) Regulations 2006
PART 2 – EEA RIGHTS
Initial right of residence
13.—(1) An EEA national is entitled to reside in the United Kingdom for a period not exceeding three months beginning on the date on which he is admitted to the United Kingdom provided that he holds a valid national identity card or passport issued by an EEA State.
(2) A family member of an EEA national residing in the United Kingdom under paragraph (1) who is not himself an EEA national is entitled to reside in the United Kingdom provided that he holds a valid passport.
The UK rules for issuing EEA family permits (section 21.4.1 – Handling and assessing applications for EEA family permits) are also explicit that the family member of an EU citizen is “resident” if they are lawfully in an EU country:
The non-EEA national could equally have entered the country in some other category (visitor, student etc) and would still be considered as lawfully resident in that Member State. For example, an Indian national married to a French national, who had obtained a visa to enter France as either the spouse of the French national or in some other category (as a visitor, student or work permit holder etc), would be considered ‘lawfully resident’ in France, if, at the time of application, they were abiding fully by the conditions of that visa.
The Irish transposition of Directive 2004/38/EC has the corresponding language in describing Irish requirements for residency in Ireland:
S.I. No. 656 of 2006
European Communities (Free Movement of Persons) (No. 2) Regulations 2006Residence in the State
6. (1) Subject to Regulation 20, a person to whom these Regulations apply may reside in the State for up to 3 months on condition that he or she –
(a) (i) where the person is a Union citizen, holds a valid national identity card or passport,
(ii) where the person is not a Union citizen, holds a valid passport, and(b) does not become an unreasonable burden on the social welfare system of the State.
I have resided in three many member states since April 2006: Germany, Italy, France, Ireland, Netherlands, Belgium, Spain, Austria. In each case, I was there for a few days.
For people covered by this Directive (EU citizens and their families), there is no legal requirement that you have to stay for a long time (e.g. more than 6 months) in order to legally “reside” in a member state. This Directive (and it’s local transposition) are the primary EU law regarding residence of EU citizens and their families in other EU member states.
freedom of movement in the EU 
Comments
Interesting, how does this affect the UK requirements for EEA Family Permits?
The BIA faq says:
“Does an applicant have to be lawfully resident in an EEA Member State?
If an applicant is applying from an EEA Member State, then they will need to show that they are lawfully resident in an EEA Member State (this could be in the form of the local equivalent of leave to enter / remain as a Family Member of an EEA national, as a holder of a residence card there or as a short term visitor) in order to qualify for an EEA family permit.”
That looks to me as if a non-EEA partner of an EEA Citizen that gets, say, a Schengen Visa from an embassy in the UK as a partner can go to another EU country for the weekend and then apply for a 6 month EEA family permit on which to re-enter the UK…
Anyone have any comments?
The only way a non-EE partner of EE Citizen would get a Schengen Visa, if he/she held a valid legal residence (leave to stay etc)
already for UK. Otherwise they would have to apply for SV at a Schengen group Embassy in their own country.So if a person (with valid residence / leave to stay etc) did as you suggest in your perusal they would be no better off, they already have right to reside in UK???? Even, maybe worse off depending on the variety of their type of residence and personal circumstances- refugee maybe, settlement, appeals etc as their circumstances would appear to me to have changed. Could be a dangerous area to play around in.
To derive any logic out of your question, I assume you are more interested in a “short term visitor” situation. Don’t think any Schengen Embassy would entertain an application from somebody simply in the UK as a short term visitor (Whatever that means)I don’t think a short term visitor has any sort of residence in respect to a country they are visiting! (if they don’t already have some sort of legal residence alreadyin EE/Schengen space)+ (and you are exercising your EE rights.)
Many of the similar problems arise here I think because of the cavalier attitude to writing and explaining these directives and then constructing an hierarchy of conditions and subordinate clauses that simply cancel out the logical conclusions that are drawn from the basic directives. When the participant countries have time to ponder the possible results of their initial idealistic and enthusiastic fervour all sorts of interpretations and contradictions are applied in practice and put on their national statutes.
Lots of definitions only hold up in respect to other selective definitions a whole load of negative chains ready to break the semantic.
” Yes sir, you can do this, but only if you do this and have that and don’t want this because you want the other. Of course you have freedom and your “family members too” but only if you can rub your belly and pat your head at the same time, while you and your partner write a treatise on the semantics of freedom, while continuously exercising your treaty rights for no less than 6 months to 3 years depending on the number of vowels in your family name.”.
“… eh while you are at it can you run down to the shop and get me a packet of cigs?”
Very interesting! And although Ken Booth seems to think that people who already are in the UK would be better off, this is unfortunately not true – at least in the following situation: The initial EEA family permit has expired and your EEA2-application is “under consideration”, which basically means that you are caught inside the cage called Britain. If it were possible to get the passport back, travel to, say, Germany, and get a new EEA family permit on grounds of being a legal resident in Germany – great! This would give the person another 6 months of freedom – during which they could apply for a residence card *and* travel (i.e. immediately asking back the passport after they send the application). So this is *very* relevant indeed! I’ll need to follow this up – my wife’s passport is still in the claws of the HO for another 3 months at least…
“To derive any logic out of your question, I assume you are more interested in a “short term visitor” situation.”
Not quite. I was thinking of someone, say, that arrived in the UK on a Fiance visa, got married/civilly partnered a UK citizen, then went to Belgium on a Schengen Visa granted on the basis of their marriage to an EU citizen *before* they applied for Further Leave to Remain.
Could they not then apply from Belgium for an EEA Permit to come to the Uk with their partner and then apply for the 5 year residence card…
Relevant casework instructions at http://www.ukvisas.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1036679156328#point%20four%20one
“Requirement to demonstrate lawful residence
* Following the case of Akrich, which established that a right of movement for a family member is only derived if they are lawfully resident in an EEA member state, the requirement for an applicant to demonstrate lawful residence has been introduced into the EEA Regulations. Anyone who has a valid visa or entry clearance, and who is abiding by the conditions of that entry clearance, can be considered to be lawfully resident in that Member State. This would normally be in the form of the local equivalent of leave to enter / remain as a family member of a national of the member state in which they are residing. Or, alternatively, an EEA residence card would normally be held if they are the family members of an EEA national residing in a member state of which they are not a national.
* The non-EEA national could equally have entered the country in some other category (visitor, student etc) and would still be considered as lawfully resident in that Member State. For example, an Indian national married to a French national, who had obtained a visa to enter France as either the spouse of the French national or in some other category (as a visitor, student or work permit holder etc), would be considered ‘lawfully resident’ in France, if, at the time of application, they were abiding fully by the conditions of that visa.
* Those with valid Schengen visas would be considered lawfully resident in all Schengen states. If there are cases where you are not sure if an applicant can be considered as lawfully resident, please refer the details to ECO Support.”
Most of the above overruled by the Metock case C-127/08.