EU reviews Directive 2004/38/EC progress

The European Commission has finally released the required review of how well member states are implementing Directive 2004/38/EC.

The focus of this review is on comparing the sections of the Directive (each of which is required to be implemented by the member state) with corresponding sections of the member state implementation law or regulations.

All Member States have adopted national laws to protect the right of EU citizens and their families to move and reside freely within the EU.

Although national laws in some areas treat EU citizens and their families better than EU law requires, not one single Member State has transposed the Directive effectively and correctly in its entirety. Not one Article of the Directive has been transposed effectively and correctly by all Member States.

The overall transposition of the Directive is rather disappointing.

Unfortunately the review is mainly at this legal level.  There was little attempt to capture how smoothly things have been implemented for citizens on the ground, such as whether visas are actually issued “as soon as possible and on the basis of an accelerated process”, or whether Residence Cards are truly issued as soon as possible and in no cases later than 6 months after the application.

The European Commission release has three interesting pieces:

1. A report from the European Comission to the European Parliament and the Council discussing implementation progress of Directive 2004/38/EC
2. A video of a press conference by Jacques Barrot discussing issues raised by the report and by implementation of the Directive (The audio has two separate channels.  One side is English translation of the Q&A, and the other side is the original language version)
3. A revised “Guide to getting the most out of Directive 2004/38/EC“

Research into migration

Migration Information Source is a great NGO research group looking at migration in different parts of the world.  They often have interesting material that puts migration into a new perspective.   http://migrationinformation.org/

EU case law blog

http://www.eucaselaw.info/category/free-movement-of-persons/ is an interesting blog looking at EU case law

Comments by Franco Frattini about Roma in Italy

There is a widely supported MEP resolution stating that Parliament “believes that the recent statements to the Italian press by Mr Franco Frattini, a Commission Vice-President, in connection with the serious incidents in Rome were contrary to the spirit and the letter of Directive 2004/38/EC, a directive with which he is called upon to comply in full.“   Another take on it it is at EurActiv

progress in implementing Directive 2004/38/EC and registered partnerships

A response from the European Commission to a written question by UK MEP Graham Watson. Since Belgium and Luxembourg have not transposed the Directive, it now has direct effect as law in each country.

E-2822/07EN
Answer given by Mr Frattini
on behalf of the Commission
(16.7.2007)

Directive 2004/38/EC of Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States provides for the right of registered partners to accompany or join a Union citizen in the host Member State which treats registered partnerships as equivalent to marriage. Such a right is granted in accordance with conditions laid down in the relevant legislation of the host Member State.

The Czech Republic, Denmark, Estonia, Finland, Lithuania, the Netherlands, Portugal, Spain, Sweden and the United Kingdom have informed the Commission that they recognise registered partnerships as equivalent to marriage for the purposes of free movement under the Directive.

Belgium and Luxembourg have not yet transposed the Directive but national law of the former provides for same-sex marriages and that of the latter for registered partnerships.

No information is available at the moment for Bulgaria and Romania.

The remaining Member States do not recognise registered partnerships as equivalent to marriage for the purposes of free movement under the Directive.

Without prejudice to the right of non-discrimination with regard to nationals, a Member State which does not treat registered partnerships as equivalent to marriage is obliged to facilitate entry and residence of registered partners in accordance with its national legislation under Article 3(2) of the Directive. It must undertake an extensive examination of personal circumstances of the registered partners, notably by taking into consideration their relationship with the Union citizen. Refusal of entry and residence must be justified, notified in writing and is subject to an appeal.

The Commission has no detailed information on how this obligation is dispatched by the national administrations in practice.

With regard to the obligation of the Commission to submit a report on the application of this Directive to Parliament and the Council, laid down by Article 39 of the Directive, the date of 30 April 2006 was an obvious error and a corrigendum to the Directive specified that Article 39 of the Directive should read that the report shall be submitted no later than 30 April 2008.

Requirements for a short stay visa (family of EU citizen)

For a short stay (“weekend away” or up to 3 months) visa to be issued on the basis of Directive 2004/38/EC, only the following three requirements need to be satisfied:

1. the visa applicant is a family member of an EU citizen (or one of a specific other set of relationships), and is able to prove it
2. the visa applicant must be travelling with the EU citizen
3. all travellers require a passport (or a national ID card for the EU citizen)

There is no requirement that the EU citizen be living or working in a different member state.

There is no requirement that the non-EU citizen holds a specific immigration visa or status. If the non EU citizen has nationally issued visa or a Residence Card or an EEA family permit or a even student visa, that should be fine. There is nothing that precludes the non-EU citizen being on a visitor’s visa.

The key issue is the nature of the relationship. Is it real and substantial and ongoing? (Time together is one indication of how substantial a relationship is, but it can not be arbitrarily required to be more than 2 years).

The new Directive 2004/38/EC defines two types of non-EU person who fall under its remit, the “family member” of Article 2 and the “beneficiary” family of Article 3.

There is core definition under Article 2 of “family member”, which includes spouses, decedents (of EU and of non-EU partner) who are dependent or under 21, and dependent ascendants. This includes civil partnerships and gay marriages, if the visa-issuing country recognizes these relationships. People in this category people have the simple life because they have easily documented relationships. They can plonk down their certificates, and must be issued the visa quickly.

The more bread definition under Article 3 is of “Beneficiaries”. These are people who don’t fall under Article 2, but would still be normally seen as family members. Examples include long term unmarried couples, civil partnerships (if not recognized in Article 2), other extended family members who live with the EU citizen, and so on. This would include, for example, the non-EU citizen parents of a minor child who has EU citizenship, something which does not fall strictly within Article 2.

The “beneficiaries” typically have to work harder to get their visa issued. They may not have certificates to prove the relationship, and the visa issuer is allowed to make extra enquires or ask for more information about the relationship. But in the end, if the relationship exists, the visa must be issued. Visas in this category must also be issued at no cost – Contact the EU’s Solvit group (http://europa.eu.int/solvit/) if you satisfy the requirements at the top of this posting and are being required to pay for a visa.

For stays of less than 3 months, member states can not require you to submit

• bank statements
• pay slips
• letters from your employer or school
• letters of reference
• proof that you will return at the end of the trip
• airline tickets
• confirmed hotel bookings

Please immediately contact the EU’s Solvit group (http://europa.eu.int/solvit/) if you are ever required to provide any of this.

The only three allowable reasons for not issuing a visa for a qualifying family member are: public health (serious contageous disease), national security, and (big) public policy. If a visa application is rejected, there must be a detailed explaination given about the grounds for the rejection (which must be one of these three).

How is implementation of Directive 2004/38/EC?

The European Commission has set one of it’s “Main outputs for 2007″ to be “Control of the correct implementation by the 25 Member States of Directive 2004/38/EC“.

I think this is important, and I hope the results are made public.

There are a few things I have noticed that are not going well with implementation:

• Directive 2004/38/EC Article 5 (2) says that where non EU family members require visas, “such visas shall be issued free of charge as soon as possible and on the basis of an accelerated procedure.” Some member states only provides visas free of charge to some types of “beneficiary” family member, and it feels anything but accelerated.
• Some embassies require an interview with everyone applying for a visa, including those applying under Directive 2004/38/EC. You have to often wait longer for an interview slot than for the visa itself. In addition, you are often required to call a very expensive telephone number to arrange the interview appointment. If you are lucky enough to live in the city of the embassy, then you only need to take a morning off work — otherwise you have to take a day off work to travel to the city for your interview in order to get your visa for the romantic weekend away in another part of the EU. Is this all strictly within the meaning of “free [...] and on the basis of an accelerated procedure?” And then repeat the whole processes if you want to travel again a few months later.
• Residence Cards must be issued within 6 months (Article 10 (1)). In Ireland they are often not, and the passport is kept for the duration of the application, severely restricting the free movement of the EU citizen and of the family.