There are other people who are also direct beneficiaries of Directive 2004/38/EC. These are people who do not fall into the explicit definition of “family member“, but who are none the less “part of the family”.
For these beneficiaries, Directive 2004/38/EC says in the preamble:
In order to maintain the unity of the family in a broader sense and without prejudice to the prohibition of discrimination on grounds of nationality, the situation of those persons who are not included in the definition of family members under this Directive, and who therefore do not enjoy an automatic right of entry and residence in the host Member State, should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons, taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.
Later, in the text of the Directive, it becomes a little more explicit about who these other beneficiaries are:
Article 3 Beneficiaries
1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.
2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:
(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;
(b) the partner with whom the Union citizen has a durable relationship, duly attested.
The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.
Who can be a beneficiary of Directive 2004/38/EC is worth breaking up and looking at in more detail, category by category:
Notes and interpretation
2 (a) any other family members [...] who, in the country from which they have come, are [either] dependants or members of the household of the Union citizen This covers two separate groups, either:
- other family members who are dependent on the EU citizen, or
- other family members who live (or have lived recently) in the same household (even if they are not dependent).
Another key phrase is “in the country from which they have come“. The phrase is quite open and covers a number of situations. For a Japanese person, it can include their original home country (e.g. Japan), a country they have recently lived in (e.g. USA) or where they currently live (e.g. France).
- UK resident non-EU parent of a UK citizen child (for Irish visitors visa)
- Brother of the non-EU wife of an EU citizen (previously part of household in Singapore, rejoining family in Ireland)
- Non-EU cousin of the non-EU spouse of an EU citizen (for Schengen visa)
- Sister of the non-EU spouse (before getting RC, sister was on student visa in UK and was fully dependent for course fees and living expenses. Sister had previously lived in country of origin with financially dependent parents)
[2 (a) continued] or where serious health grounds strictly require the personal care of the family member by the Union citizen; Any good or real examples? e.g. a non-EU parent who has been quite independent but who now needs intensive assistance because of a medical condition such as a stroke or Alzheimer’s
2 (b) the partner with whom the Union citizen has a durable relationship, duly attested This category covers all other long term “durable” partnerships, including both opposite-sex and same-sex relationships.There is no official definition of how long the relationship must have existed. Some countries expect to see two years of living together, but if you have a child with somebody and live with them it would clearly be incompatible with the Directive to require two years of relationship history.When a member-state does not recognize civil partnerships as equivalent to marriage, this is the category which is used for entry.
They key thing for people in this category is proving the family relationship to the EU citizen. Once that is done, the provisions of Directive 2004/38/EC have effect, irrespective of how the national government views the relationship. Ireland provides a good example, where there is norecognition of registered partnerships. This following is part of a press release originally issued by the Irish DOJ for the start of Directive 2004/38/EC.
As Irish legislation does not treat registered partnerships as equivalent to marriage Ireland is not be obliged to recognise registered partners as family members. However, Ireland is obliged to facilitate the entry and residence of the partner with whom the Union citizen has a durable relationship, duly attested. In doing so an extensive examination of the personal circumstances of such relations must be undertaken.
UPDATE: the ECJ is starting to look at a case which is directly about “other family members”. The results of the case may be available in 2012