“other” family members who are beneficiaries

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:

“other beneficiary”

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:

  1. other family members who are dependent on the EU citizen, or
  2. 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).

Real examples:

  • 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

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Comments

  • Enrique Carmona  On May 3, 2008 at 09:01

    Directive 2004/38/EC is all lies, not working.

  • eumovement  On May 4, 2008 at 21:02

    http://www.ukvisas.gov.uk/en/ecg/chapter21/chapter21annex1/ has the UK take on other family members. They seem to be taking a quite restrictive stance.

  • James  On July 14, 2008 at 01:08

    Ireland’s “implementation” of Directive 2004/38/EC is nothing short of an international scandal. My government is deeply shocked with Ireland’s behavior in this matter.

  • Chu  On January 20, 2009 at 17:55

    I am a non-EEA national who applied for a Residence Card in Britain as a non-dependent family member of an EEA national (my 17 month-old son who is (Czech). My current leave to remain in the UK (as a Student) expires at the end on January 2009. From the article above, it appears as though i fall under Article 3 Beneficiary. I have lived and continues to live with my son for about 2 years now. My Partner (unmarried) who is also Czech has lived with me for this same period. I have a birth-certificate showing my relationship to my son as the father. I also included my means of supporting my family (through paid employment here in the UK) in my application. As decision on my application is still pending after 6 months, i wanted to know how strong/weak my application is. I would also like to know whether or not i could continue working under the terms of my current student visa if a decision is not reached before my current leave to remain expires? Advice and suggestions are welcome please.

    • jan  On May 22, 2009 at 00:29

      you can apply as non eu primary carer parent of eu born minor child under article 257 of uk immigration rule which will allow u to stay in the UK for up to 5 years but you will not be permitted to uk labour market, you will have no right to work but only caring duty for eu self sufficent child who is exercising treaty rights.
      From Jan.

      • Anonymous  On August 3, 2009 at 19:53

        article 257 has been repealed – it’s superseded by the implementation of directive 2004/38/EC

  • David Farr  On July 7, 2009 at 19:46

    I have a case I’d like advice on.
    The precis is as follows…
    I’m an EU citizen – both British and Irish. My parents-in-law live in Belarus, and are not able to support themselves on the pension they receive. My wife is still a Belarussian citizen, but has permanent unlimited residence in Denmark, where she has lived for the past 10 years. She has applied for, and will probably receive Danish Citizenship next year. We’ve had a case for Family Reunification under the EU law going since November 2007, and have received one rejection after another from statsforvalgtning, Udlændingerservice and Integrationsministeriet in Denmark, but the worst of these 3 organizations is by far Udlændingerservice (immigration authorities), who show no concern whatsoever for the unity of a family, where my in-laws have no more children left in Belarus – all are married and living in Denmark, and work in professional positions.
    I find this a breach of our human rights under the European Commission’s EU legislation and/or directive 2004/38/EC.
    I’ve had legal aid on this case, but It’s like a dog chasing it’s tail, and is clearly seen to be just one delay tactic after another, with nobody from the Danish authorities being clear and specifying exactly what is is that we can do to meet the criteria. Of course, this is strategic, since, if I cannot be given clear directives in Law, then I never know from which angle the next rejection is going to come.
    I find it exasperating to know that after all of this struggle, the last rejection we were given a week ago, came solely as a result of a meeting held three weeks ago, where doubt was cast on me, as the applicant, being the one person whom my in-laws depend upon economically. (My wife’s other 2 sisters give miniscule amounts to buy for example, birthday presents, and Flight tickets to visit Denmark, whilst I supply a living supplement, which they rely upon. This is, unfortunately not documented, and is given to them as cash when they visit us in Denmark.
    I find that the jurors in this case (and udlændingerservice) are merely clutching at straws, and that this is merely strategy to frustrate my application in an effort to try to get me to give up.

    I also find it extremely frustrating that the EU governing body allows Member states a wide margin to interpret the laws in their own way- it’s just as though it matters not one iota that a member state need adhere to agreed and passed motion at an EU legislative level.

    Is there any knowledgeable soul out there who could advise me, or point me in the right direction in regards this scenario?

  • AAde  On December 27, 2011 at 09:41

    I will suggest you contact and speak with SOLVIT – http://ec.europa.eu/solvit/site/index_en.htm

  • Anonymous  On May 30, 2012 at 08:55

    Trying to use the directive to transfer a Dutch residence permit issued to an American unmarried partner of a German citizen to Germany, but so far, it seems Germany won’t recognize the unmarried partnership (durable relationship) even though it was recognized as legitimate by another EU member state. The directive is often useless, though the Dutch residence permit was actually issued based on the directive, I think. We have contacted SOLVIT, and we will see how that goes.

    • Steven  On April 26, 2013 at 06:45

      Hi,
      I am in the same position, I am an EU Citizen but my girlfriend is from outside the EU. We have a legitimate partnership in Spain through which my partner gained Family member of an EU Citizen status. Germany is refusing to recognise this status and we are trying to fight it. Did you have any luck with SOLVIT? Perhaps if there is a critical mass of cases it may help? Please let me know how you got on.
      Regards,

  • nic  On April 28, 2013 at 20:58

    The same right to facilitated entry and residence is also granted to your partner with
    whom you have a durable duly attested relationship. This covers same and different
    sex partnerships and de facto partnerships, such as cohabitation (where both partners are
    living together).
    Registered partners moving to an EU country which does not treat registered partnerships, (zoals Duitsland)
    as equivalent to marriage fall under this category as well.
    http://ec.europa.eu/justice/policies/citizenship/docs/guide_free_movement_low.pdf

  • Omas H  On August 20, 2013 at 21:25

    Pls, i need vital & detailed advice on the following:
    1. What is EC definition of durable relationship?
    2. What are the required documents to prove in UK a durable relationship &
    duly attested to.?
    3. Can unmarried partner application be refused on the basic of lack of joint
    bank account that is not part of UK national legislation in respect of EC
    Directive 2004/38.
    4. If 3 above is Yes! Can individual partner (EU & Non EU) bank account
    statements be accepted for a joint bank account statements as applicable to
    British partners.

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