Directive 2004/38/EC

European Parliament and Council Directive 2004/38/EC of 29 April 2004 is about the right of citizens of the Union and their family members to move and reside freely within the territory of the EU and EEA member states.

This new directive brings together most of the piecemeal measures found in European law previously. The new measures are designed, among other things, to encourage Union citizens to exercise their right to move and reside freely within Member States, to cut back administrative formalities to the bare essentials, to provide a better definition of the status of family members and to limit the scope for refusing entry or terminating the right of residence. Also it broadens the definition of family to also include non-married partners.

Who is covered by Directive 2004/38/EC?

  • Citizens of an EU or EEA member state who visit, live, study or work in a different member state
  • The EU citizen’s direct family members, including their non-EU spouse and the spouse’s direct family members (such as children)
  • Other family members who are “beneficiaries”, including common law partners, same sex partners, and dependent family members, members of the household, and sick family members
  • Family members (as outlined above), where the EU citizen has worked in another member state and now wishes to return to their “home” country to work [Singh]

Who is NOT covered by Directive 2004/38/EC?

  • If a citizen is living in their home EU member state and has not worked in other EU member state, then this Directive does not apply.  All movement of non-EU family members into the home state is governed by national law.
  • Some old-EU member states have special “transitional” arrangements that curb the ability of citizens of new EU states (Bulgaria and Romania) to move freely for work.  The curbs can be maintained until 2014.  Citizens of new EU member states can however travel without visas throughout Europe, and their non-EU family members can travel freely with them.
  • Citizens of non-EEA countries who are not travelling with or joining family members who are EU/EEA citizen.

What is covered?

  • No-cost, easy, fast issue of visas
  • Easy right to stay for up to 90 days if so desired.  EU citizens and their non-EU family can work if desired in this period, or play.
  • Easy right to stay longer if the EU citizen is working, is a student, or has medical insurance and is self sufficient
  • Permanent residence after 5 years
  • Right of facilitated entry if passports have been lost, or if a visa has not been obtained
  • Applications can only be turned down in three limited circumstances (public health, public policy, national security), or when a marriage is determined to be fraudulent.  Reasons for refusal must be spelled out in detail and there is a right of appeal.
  • EU citizens and their non-EU family members can not legally be treated differently than citizens of their EU host country

What 2004/38/EC means

Things to be aware of

  • There is no requirement that non-EU family members have previously been resident in the EU.   An EU citizen and family members can move from outside the EU to an EU country (but not directly to the EU citizen’s home country!) on the basis of this Directive
  • Family members must be travelling with or joining the EU citizen, in which case they have the same free movement rights as the EU citizen.  They do not, in general, have an independent right of free movement to new places.

Misc

  • What is an EU Directive? (wikipedia)
  • Directive 2004/38/EC amends Regulation (EEC) No 1612/68 and repeals Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC
  • The Directive does not directly apply to Switzerland, but a similar free movement agreement is in place

Reviews of national implementation of European free movement law (which often include good reference to relevant ECJ case law)


Comments

  • Mohd  On April 10, 2007 at 13:52

    Dear Sir/Madam

    Directive 2004/38/EC, article 3(2)a from the directive is implemented incorrectly in UK legislation.

    Normally in order to benefit from this directive 2004/38/EC, EU national person must exercise treaty rights and the family member must be dependant on EU national.

    But the UK regulation inserted the extra requirement, that the family member must be the person is residing in an EEA State in which the EEA national also resides before applying the EEA Family Visa.

    UK regulation states the below:

    8.—(1) In these Regulations “extended family member” means a person who is not a family
    member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies the conditions in
    paragraph (2), (3), (4) or (5).
    (2) A person satisfies the condition in this paragraph if the person is a relative of an EEA
    national, his spouse or his civil partner and—
    (a) the person is residing in an EEA State in which the EEA national also resides and is
    dependent upon the EEA national or is a member of his household;
    (b) the person satisfied the condition in paragraph (a) and is accompanying the EEA national
    to the United Kingdom or wishes to join him there; or
    (c) the person satisfied the condition in paragraph (a), has joined the EEA national in the
    United Kingdom and continues to be dependent upon him or to be a member of his
    household.

    May I kindly know which country transpose the article 3(2) of directive 2004/38/EC correctly into their national legislation?

    Regards
    Siddique

  • Mohd  On April 19, 2007 at 16:30

    Is there any judgement from member states with respect to Directive 2004/38/EC, article 3(2)a, dependant family members

    If have please put in this forum.

  • Anonymous  On May 7, 2007 at 15:14

    Is there any judgement regarding article 3(2)a of directive 2004/38/EC in any member state.

    If there is any case law regarding the NON-EU dependant family member of an EEA National in any member state, particularly with respect to article 3(2) of the directive, please. please refer the website link

  • Ken Booth  On July 19, 2007 at 06:10

    Spanish Embassy in Kuwait tell me(EE/EEA/UK national)and my spouse of 10 years with marriage contract fully attessted(non-EE/EEA national)that they cannot process application for schengen short stay or any other visa (free or not)on the basis of her being a spouse of a Non-EE/EEA national. (there application form has the usual asterixes for non completion if a spouse of EE/EEA national !!!????. They demand shefill in and supply all details bank account etc hotels etc the usual stuff.

    They refuse to discuss any Real Decreto or Schengen/EE directive. When asked about 20004/38/EC or Real Derecto transposition – they say “don’t know wat you are talking about. They DO NOT ANSWER CONSULATE PHONE EVER! Do ot reply to e-mails sent to Embassador/Consular section etc et- What is going on here?

  • Doid  On August 9, 2007 at 21:34

    Mohd – the UK’s Asylum & Imm’n Tribunal has recently ruled (case called ‘AP & FP’)that Art 3(2) only confers a right to have an application considered under the Member States own national law!http://www.ait.gov.uk/Public/Upload/j2017/00048_ukait_2007_ap_fp_india.doc However, many UK specialist lawyers disagree and cases on this point are going to the Court of Appeal. I also agree with your criticism of UK implementation of Art 3(2)(a) – there are cases on this issue pending.

  • Doid  On August 9, 2007 at 21:36

    Ken- You could try complaining to the office of the European Commission in Spain and asking them to contact the Spanish Embassy in Kuwait and put them straight.

  • John  On August 12, 2007 at 01:48

    Ken,
    I have had similar treatment by
    Irish Consulate, who would not recognise an Irish Marriage cert, and demanded instead I write a letter of invitation to my own wife,
    to visit our own home.

    This is the jackboot bully, you cannot reason with them, they will not admit error, instead you must go above them.

    Either/and

    Write polite letter, quoting EU law, and your treatment from them,
    with a veiled threat.

    and if you wish
    and send a copy same letter to..
    1)
    your local MEP back in UK,

    2)
    European Commission in Spain

    3) Spanish Department of Foreign Affairs (their boss)

    As regards EU law, did the Spanish Embassy charge you a fee ??? this
    is important, as the receipt of payment can be used against them as a clear breach of law.

    EU Directive 2004/58/EC became Law L 229 , 29/06/2004
    CHAPTER II
    Article 5
    Section 2 Paragraph 2

    2. Family members who are not nationals of a Member State shall only
    be required to have an entry visa in accordance with Regulation (EC)
    No 539/2001

    Member States shall grant such persons every facility to obtain the
    necessary visas. Such visas shall be issued free of charge as soon as
    possible and on the basis of an accelerated procedure.

  • Anonymous  On August 30, 2007 at 11:06

    1. I have read the above comment Posted on August 9, 2007 at 9:34 pm about the point that the UK’s Asylum & Imm’n Tribunal has recently ruled (case called ‘AP & FP’)that Art 3(2) only confers a right to have an application considered under the Member States own national law!

    2. In the recent judgement, they applied this principle in the below case as well, which is fundamental breach of community law. http://www.ait.gov.uk/Public/Upload/j2045/00074_ukait_2007_ak_sri_lanka.doc

    3. In the above determination, in the para 10, tribunal mentioned “There are two important requirements in reg 12(1) which we should note. First, the “family member” must be “accompanying” or “joining” the EEA national who is coming to or already in the UK. It does not cover the reverse situation where the “family member” is present in the UK and is joined by the EU national. Secondly, the “family member” must, before coming to the UK, either be already lawfully resident in another EEA state or satisfy the requirements of the Immigration Rules for entry. The latter situation would cover both family members who are illegally in another EEA state and those who are outside the EEA and wish to enter the UK directly from there.”

    4. The judges from the starting point itself concluded “a first category whose family members are already residing within the territory of the Union and who would benefit from free movement rules; and a second category whose family members do not yet reside in a Member State and whose family member would be subject to national immigration rules.”

    5. The above determination would constitute discrimination between different categories of EU nationals which would seem difficult to justify and such a difference in treatment itself is a discrimination and incompatible with Directive. Further ECJ has rejected the above discrimination in Jia Case, in which the Advocate General suggested.

    6. Having regard to the judgment in Case C-109/01 Akrich [2003] ECR I-9607, Community law does not require Member States to make the grant of a residence permit to nationals of a non-Member State, who are members of the family of a Community national who has exercised his or her right of free movement, subject to the condition that those family members have previously been residing lawfully in another Member State.

    7. The Court held that no such requirement followed from Community law in general or from the Akrich judgement, more specifically.

    8. Although the treaty leaves member states free to choose the ways and means of ensuring that the directive is implemented , that freedom does not affect the obligation , imposed on all the member states to which the directive is addressed , to adopt , within the framework of their national legal systems , all the measures necessary to ensure that the directive is fully effective , in accordance with the objective which it pursues.

    9. The phrase “in the country from which they have come” in article 3(2) refers to the country in which dependents of an EU citizen are situated at the time they seek to enter and reside with the EU citizen in the host country concerned.

    10. The phrase is not limited to EU countries, as is clear from the European Court of Justice’s ruling in the Jia case C-
    1/05. The Directive contains no condition of prior residence or physical presence in the EU at the time a dependent
    applies for entry and residence.

    11. In particular the words “in the country from
    which they have come” is not limited to EU countries (otherwise the Directive would read “in the member state
    from which they have come”). As a result,the UK has incorrectly implemented Directive 2004/38 in
    breach of the UK’s obligations under the EC Treaty.

    12. Hope there are cases still pending before the court for this issue to be resolved asap.

  • Anonymous  On September 2, 2007 at 09:50

    1. It is interesting to note the following observations in Chen Case with respect to unlawful and incorrect implementation of National Regulation in Ireland and UK : –
    The ECJ rejected outright the contention that a person in Catherine’s situation could not claim the benefit of the provisions of EC law on free movement & residence simply because she had not moved from one MS to another MS.

    2. The ECJ also rejected the submissions by the UK government that Mrs Chen was not entitled to rely on the provisions of EC law because, it was argued, her move to Northern Ireland with the aim of having her child acquire the nationality of another MS constituted an attempt to improperly exploit the provisions of EC law and to circumvent national legislation.

    3. The ECJ rejected submissions by Irish and UK governments that the requirement to possess sufficient resources must be possessed personally. The simple requirement is that the person “have” the resources, EC law provisions do not make any requirement as to the origin of the resources. Any requirement as to the origin of the resources would not be necessary for the attainment of the objective to protect public finances and would be a disproportionate interference with the exercise of the fundamental rights of free movement.

    4. The implications of the Chen judgment?
    The full implications of the judgment remain to be explored but several matters are apparent: When a matter is referred to the ECJ by way of preliminary ruling, the judgment is addressed primarily to the court or tribunal that requested the ruling. However, the ECJ has made clear that its judgments can and should be relied on by other national courts and therefore does have precedent effect.

    5. Therefore there is no sense in their implementation that the Non-EEA National family members should have to satisfy the requirements that they must be lawfully resident in an another member state prior to their arrival to UK and/or Ireland.

  • Ashween  On November 17, 2007 at 09:52

    If British citizen in India wishes to go to Spain or any other EU/EEA country with non-EU family members, what is required to do to get entry visa for them to accompany them to other member state.

    Appart from full health and accident insurance, would around 8000 Euro sufficient to carry along for the entry purpose?

    This is very important to know as we have some very serious business plans to carry out in other MS.

    Ashween Parikh

  • B. Chukwuka  On January 12, 2008 at 11:45

    I am a non EEA National Married to an EEA National(Portuguese Citizen).I applied for a Schengen Visa with the Belgian Embassy because I and my wife Booked a Xmas Holiday to spend two weeks in Belgium.Our Hotels accomodation and Flight has been pre booked before I applied for the Schengen Visa.But My Application was refused despite the Fact that My Wife’s Passport and Our Marriage Certificate was submitted along with my Application.Also,I was charged about £22 as visa application fee which was never returned to me.At the time I submitted my Application,I informed the Officer that they are not supposed to request any Fee from me as a Spouse of an EEA Citizen but the Person that received my application insisted that the Payment is Mandatory for every Applicant.

  • Dr.M  On February 12, 2008 at 00:52

    Hi,

    I am Doctor and a mother of Irish Citizen Child.My child holding an Irish Passport and was born in Belfast where I was studying.

    In March’ 2004, we came to Ireland and apply our residency on behalf of my child through IBC Scheme 2005. In Sep 2005, Dept. of Justice refused my application with the reason that I am not habitual resident in Ireland and not living in Ireland since my baby born in Nov’ 2004 and moved here in Ireland in March’ 2005.

    I appealed and explain them that according to Good Friday Agreement, people who lives in UK are also habitual resident in Ireland and according to Good Friday Agreement my daughter got Irish Citizenship and Passport, but never got any reply from Dept. of Justice.

    HSE accept our selves as habitual resident and giving us welfare allowances but Child Benefit Department refused my application for Child Benefit and said we are not habitual resident.

    Please note, I also submit my all original documents when applied for Irish Residency. My documents includes my and husband Passports, Our original Degrees, Birth Certificates, Marriage Certificates and other documents.

    I complained General Ombudsman about all these problems and Ombudsman found that according to Dept. of Justice they already return our all original documents one week before and on Sep 2005, when they refuse our Residency application. We never receive any documents from them and our solicitor told us to Report Police.

    My only request is to all members of this forum is that I am a professional doctor with 5 years experience and my husband is an IT Professional and was working in middle east on work permit, having 7 years experience, already lost or waste our 3 years in Ireland due to Dept. of Justice and still has no clue when these matter will solve and how.

    Please advice us any thing, which can solve our problems or can help to solve.

    Thanking you in advance.

  • Gary  On March 24, 2008 at 10:52

    Good Morning

    I am a British citizen born in the UK in 1959.

    My wife holds a UK 2 year Entry Clearance visa for the UK, we have been married 5 years in September and have been living in the UK since May 2007.

    We wish to go on holiday in italy and visit Family in France. She is married to me a UK citizen and my name is on the visa as per European regulations. We are travailing together will she need a visa? my wife is from the Cote-d Ivoire.
    Kindest Regards
    Gary Brunt

  • Paul Scotton  On April 6, 2008 at 10:28

    Hi, I am British and have been living in Spain for over 4 years and I am a full Spanish resident, I also pay Spanish Social Security and taxes.

    In August this year I will be marrying my Armenian fiance. She was born in and still lives in Syria and has a Syrian passport. We will marry in Syria of which all the paperwork has been sorted out for this to happen.

    Once married we need to arrange for her to emigrate to Spain to live with me. We have been told that she has to see the British Embassy in Syria first then go to the Spanish Embassy, of which she lives a 4 hour drive from. The British Embassy tells her that they do not deal with visas in Syria anymore and she has to go to Aman or Jordan to the embassy there. She has tried calling these Embassies but it is always an answerphone so she cannot arrange an appointment… also it is a big problem for her to get to these countries. Does anyone have a suggestion on how we can sort this frustrating problem out as it is stressing both of us, especially my fiance… and I cant be there all the time to help her.

    Also, once we have finally organised her move over to Spain will she be able to move freely through Europe? The reason being is that my family live in the UK and we will be making regular visits there for short holidays. Will she need a visa each time or just a one off permit to allow to travel anywhere in Europe at anytime?

    I hope someone can help with these frustrating problems as we are struggling to find someone in an official capacity who can help us.

    Many thanks in advance, Paul

  • Eenymeeny  On June 12, 2008 at 10:26

    Hi Paul,

    Best of luck with your Syrian visa problem first – I do hope all turns out well there.

    On you second question, I am in the same boat. Maybe you would like to follow our discussion here: http://www.immigrationboards.com/viewtopic.php?p=174292#174292?

    Cheers,

    Ed

  • kussy  On July 17, 2008 at 18:03

    please refer to SOLVIT if any EU member states have asked anyone of you to show them hotel bookings or any document other than EU nationals passport and spouse passports.

  • Tessy  On September 1, 2008 at 14:24

    Hello, I am married to an Irish citizen who lives in UK. we are both Nigerians by birth and got married in Nigeria. I came to join him in 2007 and have a baby now. I need to apply for an Irish paper/passport, but my visa for entry into the UK has expired. What do we do?

  • Charles4u  On November 21, 2008 at 01:49

    “Tessy” If your spouse is an Irish citizen and his excersicing is treay rights in the UK (working or another other prove of financial income)and some other family proves e.g place of stay and marriage cert, Then you can still apply for an EEA 2 application which you can find from http://www.bia.homeoffice.gov.uk

    You could have done this earlier but its not too late anyway if his having what I mentioned above…notin dey happen as God dey our side(Naija)

  • Hannes  On December 15, 2008 at 10:13

    REPORT FROM THE COMMISSION
    TO THE EUROPEAN PARLIAMENT AND THE COUNCIL
    on the application of Directive 2004/38/EC on the right of citizens of the Union and their
    family members to move and reside freely within the territory of the Member States

    http://ec.europa.eu/justice_home/news/intro/doc/com_2008_840_en.pdf

  • Liam McClure  On March 9, 2009 at 21:20

    Hi

    Could anyone tell me whether Directive 2004/38 or Directive 2000/43 have “direct effect”, or if there are any authorities to suggest it has or hasnt? Any advice would be greatly appreciated asap.

    • eumovement  On March 9, 2009 at 22:09

      Most (or all!) member states have already transposed the Directive, so there should be no (or only little) need for direct effect. But the general idea is that if something is truely out of kilter, then courts can recognize the original Directive rather than (faulty) transposition.

  • Liam McClure  On March 9, 2009 at 22:49

    THanks for your reply. Im completeing a paper where State concerned is a hypothetical State X and there is no evidenc of transposition- it just list whats State x has done (it has enacted a series of laws which are contrary to directive 2004/38 and directive 2000/43 it turns out), so im justing trying to ascertain if (in theory) they could have direct effect and thereby provide a remedy if needed.

  • SW  On March 18, 2009 at 22:19

    Query regarding entry requirements for spouse of UK subhect.

    Greetings,
    I am a UK subject (UK Passport holder). My spouse is from the Philippines and has Indefinite Leave to Remain Residence Permit from the UK homeoffice. Under this EU legislation do we have to apply for a Schengen or can we just turn up at the border of an EU country for a holiday?
    I keep getting quoted that she must have a “RESIDENCE DOCUMENTATION” with the exact wording of the “Type of Document: Residence Card of a Family Member of an EEA National”. But an ILR is what you get once you have the right to remain, whereas the Residence Card is a temporary issue permit. We are trying to go to Italy for a holiday but being told we need to apply for a schengen and submit all sorts of paperwork and money by the Italian Embassy in London.
    Can anyone offer any clarification of how we legally stand?
    Many thanks in advance for constructive suggestions/advice.

  • lyn  On April 12, 2009 at 17:20

    hi,am non eea married to EEA nation.i was issued family member stamp in june 2005,and resident permit in march 2006 for five years.i want to apply for permenent resident.Will it be counted from the day i got my family member stamp/from my resident permit as you have to be here for five years.thank you

    • eumovement  On April 28, 2009 at 08:42

      The 5 years is from either the time you became the family member of the EU citizen (if you did that after entering the member state= or the time you entered the member state if you did that with your EU citizen family member.

  • Yannis  On April 22, 2009 at 06:01

    SW

    “Residence Cards” issued in the UK for the non-EEA family members of EEA Citizens contain the wording, “FAMILY MEMBER OF EEA CITIZEN”, which is what is explicitly required by the relevant Directive

    FLR and ILR are NOT valid for EEA/Schengen purposes (and so do not contain that wording) because the UK refuses to adopt the relevant Article 5(2) of the Directive in respect of UK citizens’ family members and of course together with Ireland is not a member of the Schegen Area.

    Your wife has to apply for a Schegen Visa, which is FREE.

    For more explations visit the Netherlands Consulate website in London.

    http://www.netherlands-embassy.org.uk/home/index.php?i=261

    So far as I am aware, if the third country National Family member has a “UK RESIDENT DOCUMENTATION (card)” does NOT need a Schegen Visa to travel to Italy, France, Greece, Netherlands, Belgium (probably are more but I don’t know) because they Implementing the Article 5 (2).

    Spain and Portugal refuse to implement the Directive.

  • Jason Armstrong  On April 29, 2009 at 09:25

    I am an EU citizen (British), living in South Africa. My wife and her daughter of 9 years are South African passport holders.

    We plan to move to France. I understand that my wife can join me as my spouse, but what of her daughter, Kayla? I am in the process of adopting her, but that is a lengthy process here. Does she qualify to move with us as a family member? She lives with us, is dependent on us, and my wife has sole custody of her.

  • kashif  On May 8, 2009 at 11:11

    Dear sir, I am married to an EU citizen living in Ireland together for 4 years and have EUfam 4 card valid untill 2012. We recently booked holidays to go to spain we checked with the embassy last year in august 2008 they sent us email that my husband who is pakistani national at the moment wont need visa but now they say he needs it. we submitted form on 23-04-2009 but heared nothing so far and we are flying in a week time. not sure what to do embassy does not ever pick up phone or answer to our emails .

    should the application not be dealt on priority under Directive???

    What can I do.

  • Frederick  On May 29, 2009 at 10:27

    Dear Sirs/Madams,

    Can anyone out there justify the following:

    Why are member states refusing EU-Nationals and their family members who have resided in a member state for five years continuously but whose residence ended prior to the implementation of the Citizens Directive 2004/38/EC. Should such periods be considered for the purposes of a right of permanent residence protected by Article 16 of directive 2004/38/EC where the EU-national and the family member can prove that they have not resided outside the host member state for more than two consecutive years?.

    My take on this is that member states are wrong not to acknowledge that EU-Nationals and their family members who have resided in any member state legally for five years have acquired a right of permanent residence as long as they have not resided outside that state for more than two years Article 16(4). I am dissatisfied in circumstances where an EU-National who have resided in a member state legally for five years, return to his country of origin and spent 10 months from February, 2005 to December 2005 and then returned to the host member state and applied for Income support in June 2006 but was told that because he has not acquired a right of permanent residence, he is not entitled to support. The member states are using the six months period to say these EU-nationals lost their rights of permanent residence. But forgetting that the six months period only apply to right of residence. But the two years period apply to right of permanent residence. However, Article 18 EC should apply to all Union citizens with account to all relevant limitations. So that irrespective of the fact that these Union citizens went to their country of origin, they had right of residence by direct application of Article 18 EC: The Bombast case. To say that they do not recognize right of residence which predated the citizens Directive is wrong. The clear implication of that is that, No one in the European Union would acquire a right of permanent residence until 2011. I stand to be corrected but I disagree with that position. If the member states are willing to granted right of permanent residence to EU-Nationals and their Family members based on any right of residence which pre-dated the implementation period of the directive, then to argue that because the Directive was implemented on the 29th April, 2006 as a result, does not recognize right of residence which pre-dated its implementation is a legal wrong. In which case member states would have started counting rights of residence from that date. If the Directive did not apply a day before its implementation, then it cannot acknowledge residence before that date. To say that they must be lawfully present on the date of implementation of the Directive is also wrong because the Directive was met to strengthen rights and to weak it. However, Article 18EC still apply.
    I am informed that this particular matter has been referred to the ECJ by the court of appeal in the UK on the 11th March, 2009. So lets wait and see what the ECJ has to say about this issue.

    Thanks,

    Frederick Mum.

  • Frederick  On May 29, 2009 at 12:27

    Whereas under some EU-Treaty Third-country Nationals are already enjoying this right of permanent residence after five years or perhaps my I say, long-term residency.Whereas EU-nationals and their family members under Directive 2004/38/EC are being subjected to denial of a permanent right of residency on the basis of unreasonable and disproportionate reasons.

    The European Commission seem to be avoiding this issue of permanent residency under Article 16 of Directive 2004/38/EC and its application. If Third-country nationals already enjoy this rights under other EU directives, why are EU-nationals being denied such right?. Some have contended that member states like UK, Ireland and Demark always use their opt-out option to avoid involvement of some of these Directives that would have benefited Union Citizens and their family members. The EU should make a clear stand. Those member states that do not want to respect the laws of the Union should be told to reconsider their membership.It is cheating where some member states are complying and accepting EU-law and a few are allowed not to because they enjoy opt-out option. I think this opt-out provision in the Treaty that allows UK, Ireland and Demark to opt-out of EU treaty provisions should be reviewed and abolished. There should be no opt-out provision under EU-Treaty. The Treaties should apply equally to all member states. These countries are setting back progress within the Union.

  • AC  On June 14, 2009 at 10:34

    Dear Sir/Madam,
    I would like to bring into attention that I applied for Joins EEA Spouse Long stay D irish visa in irish embassy in poland. I was told that to call after 6 to 8 weeks the longest time i think any embassy of world takes to process and application. The documents asked from Me the Non EEA spouse of EEA citizen of poland Letter of invitation from ireland, Original marriage certificate, Translated copy of marraige certificate to english, My valid stay card of poland photocopy, My wife polish id photocopy, A letter from her that she intends to go to ireland for work and wants me to join her, My passport photocopy, our orginanl bank statements and signed application summary. not only this some more documents to proove our 2 years relationship history where we met, how we met and since how long living together. All these documents were asked prior to apply for visa application. After 5 weeks i called irish embassy and i was told visa decision will be taken in dublin department of equality and justice and documents still is lying in Irish embassy as they hevent send it to dublin for decision so call on june 2, 2009. It was preety annoying for me that they delayed my documents and the visa decision.

    Anyways i called on 2 june and was told that the visa officer wants to see 1 year already paid comprehensive sickness insurance for ireland and translated copy of polish bank statements. The bank statmenets should show the 1 year money if my wife eea citizen dont get job for whole year.

    So like after such a long time i was told this by irish embassy. When i said i can somehow buy 3 months comprehensive sickness insurace and translated copy of my bank statements. I was told no i need to show 1 year comprehensive sickness insurance or either i withdraw my application from the embasssy or i show a job offer for my wife from ireland or face refusal. The problem is even if i buy 1 year comprehensive sickness insurance i dont have a clue how much money for whole year they want to see. I already showed them funds nearly 4000 euros but who knows if they ask for 10000 euros. In that case my comprehensive sickness insurance will be a proper waste and waste of 500 euros as well. I told to embassy officials that i will try to get job offer. but anyways its been a week now but my wife is unable to get job offer for her so as i cannot join her she is not going anymore to ireland.

    As i have seen in eu law that 3 months visa to be siuused to family members of eea citizen without any hindrance but it looks like irish embassy is not abiding with the eu laws. Even they r violating there own law by not issuing me 3 months join eea spouse visa which has to be issued under no demand except marriage certificate and passport as mentioned on http://www.citizensinformation.ie.

    can anyone guide me what should i do to take action against irish embassy for not abiding the rules and totally inefficient in dealing eea spouse application with a lot of delay.

  • John  On June 16, 2009 at 17:54

    @AC My profound advise for you is simply this: You should stop wasting your time with the Irish Embassy in Poland and just buy a ticket and travel to Ireland with your non-EEA national. You are going through the long process. All Irish embassy and the department of Justice, Equality and so called law reformers are deviants and very notorious in their approach and processes.I would advise you that upon arrival in Ireland you are not obliged to apply for a residency permit until after three months. The three months period of grace apply to all EEA nationals. As a matter of fact, The Irish authorities cannot deprive you of your right to free movement. As a union citizen, you do not require a Visa into Ireland and your non-EEa national family member can accompany you into Ireland as his or her right is derived from yours or contingent upon it. As long as that right his derived from yours(Diatta V. Land Berlin) you can come into Ireland and apply for a residence permit for your family member directly to the DOJ upon arrival or after. Be advised that the issue of a residence document is only declaratory of your right of residence and that of your family member.In order words, the permit you are seeking in the Irish Embassy in Poland is a mere formality. I would advise that upon arrival in Ireland that you apply for a BUPA health card at a very reasonable price. As long as you have a roof over your head and have funds considered reasonable in your account, I don’t think the DOJ or Irish authority would have any leg to stand on. If they try to go to court with you, they will loose(Metock Case). You should be confident as the Directive 2004/38/EC has provided for very strict protection for union Citizens and their family members. Members can no long derogate from its provisions inappropriately.
    Goodluck.

  • John  On June 16, 2009 at 18:05

    I would also advise that you submit a complaint to the European Commission and a copy to the European Parliament. You should then seek legal advise upon your arrival in Ireland. As I stated earlier, member states can no longer derogate inappropriately from Citizens directive unless strictly permitted by its provisions. As a matter of fact, the Directive 200/38/EC has strengthened the right of Union citizens and their family members.If I were you, I would travel into Ireland with or without a permit (MRAX decision of the ECJ) and then apply for a permit for my family member period.

  • Aila  On June 29, 2009 at 17:06

    Hi, I am married to EEA national (Portuguese) I am Iranian myself. We reside in UK and want to travel to Portugal to see family but my visa is not ready. I was wondering if I could travel with my husband according to this directive. I would appreciate if someone help me

    Thanks
    Aila

  • John  On July 1, 2009 at 10:21

    Hi Aila,

    The answer to your inquiry is yes. you can travel to portugal with your non-eu national family member or spouse. The jurisprudence and provisions of the Directive 2004/38/EC permits family members of union citizens to be able to accompany or join them in the country of origin or host member state. You are totally entitled to accompany the union citizen to his or her country of origin irrespective of whether or not a permit was issued for the journey. Irrespective of whether or not a Visa exist. Your right is on your head as the issue of a residence document is only declaratory of your right of residence under EU-law. Your right is derived from that of your spouse and as long as she is exercising that treaty-right with you in her country of origin, then there should normally be no legal difficulties in that country:Diatta V.Land Berlin and MRax cases of the ecj.

  • John  On July 1, 2009 at 10:40

    Hi Aila,

    Remember that EU-law provides that once the union citizen has exercised Treaty Rights(ie has left her country of origin to reside in another member state)upon return to his or her country of origin, she carry her community law right with her. So it is possible or legally right to say he or she is still exercising Treaty Right upon her arrival in Portugal: Surrinder Sigh case of the ECJ.
    I hope my response suffice in resolving your concern.

  • shukri abuukar mahamuud  On August 20, 2009 at 09:43

    Iam shukri abuukar mahamuud. I ask a visa to the uk. It is not the frist time I asked for a visa before I got a visa from you which has the number of [number removed] and [number removed] and stayed for 2 weeks. Also I took another visa which has the number of [number removed] and [number removed] and stayed for 2 weeks. I wil go with my husband who has a NEDERLANDS PASPORT which has the number of [number removed] and also my childeren are going whit me who have NeDERLANDS PASPORT and they are here . FADUMA PASPORT number [number removed] hussein fuaad and said they hove the same mumber [number removed] THANK YOU SHUKRI ABUUKAR MOHAMUUD

  • Lee  On August 26, 2009 at 15:43

    Hello,

    I am getting confused, can someone please offer me advice.

    I am a British citizen and my Wife is Thai, she originally came to the UK on a Fiancée visa, we then got married and she was given a 2 year extended spouse visa i think it is. She has now been in the UK for 1 year.

    We are now looking at going on holiday to Spain (Majorca), can someone offer some advice on which forms i need to fill out, if i need to make an appointment or if i can post the application (live a long way from London), what type of visa is needed and how long it will last, and what will it cost.
    My wife has the new UK biometric ID card which replaces the paper copy of a visa and lists how long she can stay in the UK etc etc just as the old paper visa would.

    I have also been told, unsure of how true this is that my Wife can actually travel to Spain without the need of a Visa because she is married to a European citizen, this is in accordance with a EU directive CE/58/2004 or CE/38/2004. Can you please confirm if this is true and that she can travel to Spain with myself, European citizen, her Thai passport, our marriage certificate, and her UK biometric ID card.

  • John  On September 7, 2009 at 11:38

    Hi Lee,
    If you are resident in the UK and has not exercise Treaty Rights to Free movement to work and reside in another Eu member state then you cannot avail of the citizens Directive 2004/38/EC as a European Union citizen. But if you have worked and resided or residing and working in another EU member state then for sure you can avail of that provision. As regards what you require to travel on holidays to spain: I would advise you to attend at the Spanish embassy to apply for a schengen Visa or a multiple travel Visa from the spanish embassy. Your spouse with her biometric ID card from the UK as proof of her legal residence in the UK and a Schengen Visa from the Spanish embassy should be able to travel to spain (Majorca) with you and return. I don’t think she require a re-entry Visa into the UK-but i would advise you inquire about that. But I am almost certain she doesn’t require a re-entry Visa into UK as a spouse of a UK citizen.
    Enjoy your holidays and feel free to contact me if any difficulties. As regards the amount payable for the Visa from the Spanish embassy, please contact them for further inquiries.
    Bye
    John.

  • Mee  On September 16, 2009 at 13:16

    Here the tick,
    I’m married with a French National and used to travel to EU (Belgium, France and so on)with a Shengen Visa, yesterday we went to apply for a Belgium Visa which should be quick as the usual and we have been told that I don;t need a Visa to go to any EU country if I’m traveling with my wife.

    The French Embassy on their website state that Yes you don;t need a Visa except if you are married with a French National.
    Ehhh, I’m I lost here? or is there something wrong?

    btw, I’m in UK and I do have the Familly memeber Card on my passport.

    Please advise,

  • ahmed  On October 7, 2009 at 04:18

    Hi, I’m non eu national married to a german. we have married since 2002 and got my resident permit in uk in 2006. my question is does the 5years count from the day i got the resident permit or the day we got married.
    thanks
    ahmed

    • eumovement  On October 14, 2009 at 13:45

      The day you got your residence card is not important. If you were both in the UK when you married, it is five years from that date. Otherwise it is 5 years from when you entered the UK.

  • Ender  On October 15, 2009 at 12:52

    Hi all.

    Everybody asked something but nobody answered with exprience.
    I am non-eea family member. My wife is romanian. I have residence card for family members (they gave it to me after we got married in Romania).
    With this card whe have been in bulgaria,hungary,austria,italy. Nobody asked us “do you have visa”. Nobody said us “you cannot enter”. I just shown my passport and my residence card for family members. And i passed to borders without visa.
    They only cared if my wife is with me. She was always with me. Only 1 time they asked me “what will you do”.. I think it was out of record question just to talk. They were always nice.

    We will go to London, UK in december for 1 week holiday. I will not applicate for any kind of visa. We will get on plane and we will land to London.
    I am almost sure that i will fac problems with border officers. If somehow they refuse me my wife will call europan council telephones and some help lines.
    I am very curios what they will write to document (that they have to write why they refused).And what will they say? I will have marriage certificate, hotel reservation and enough money. But most important is i will have my wife. Will they restrict my wife’s free movement rights enter to UK?

    I will be very happy to share my expriences here. I will suit them , my wife will applicate to european court if they refuse us. Just wait me:)

    Good luck to everyone.

    • Yannis  On October 22, 2009 at 07:46

      As far as I am aware the UK implements article 5 (2) of the Directive 2004/38/EC and you will not have any problem entering the country.

      What you must worry is if the airline refuses to take you due to their ignorance! You better make sure and clear it with them.

      I had this problem travelling to France…. But I had a letter from the French Embassy stating clearly that my wife can travel there WITHOUT a Schegen Visa!

      Article 5

      2. Family members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law. [b]For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement.[/b]

      Member States shall grant such persons every facility to obtain the necessary visas. Such visas shall be issued free of charge as soon as possible and on the basis of an accelerated procedure.

      It is also clear in the UKborder agency site under Family Permits:

      http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/ecis/chapter3.pdf?view=Binary

      Read 1.2 General Information

      The Free Movement of Persons Directive (2004/38/EC) came into force on 30 April 2006. It repeals 9 Directives and amends 1 Regulation as well as including various ECJ caselaw (such as Baumbast and Bouchereau).

      The Directive is transposed into UK legislation via the Immigration (EEA) Regulations 2006, which replace the Immigration (EEA) Regulations 2000.

      Regulation 11(2) of the Immigration (EEA) Regulations 2006 requires non-EEA national family members of EEA nationals to hold EEA family permits when they enter the UK, [b]unless they have already obtained a residence card or a permanent residence card. [/b]

      N.B. If they have a valid UK residence card they do not have to obtain a Family Permit each time they leave/enter the UK.

      [b]Before an Immigration Officer refuses admission to a non-EEA national under regulation 11(2) because s/he does not produce an EEA family permit, the IO must give the non-EEA national reasonable opportunity to provide by other means proof that s/he is a family member of an EEA national with a right to accompany that national or join him/her in the UK.[/b]

  • Bart  On October 28, 2010 at 15:15

    Hello,

    Article 29 of the directive stipulates that restrictions to freedom of movement can be justified if it is a disease with epidemic potential as defined by the WHO. I’ve did some research but I didn’t find a defintion. Regulation 2005 of the WHO says the application of the IHR isn’t limited to specific diseases anymore. Can I conclude that there isn’t a definition for epidemic diseases anymore? Do you know articles where I can find more information about Art. 29 of 2004/38

    Thx

  • tony  On November 2, 2011 at 16:13

    hello, can someone help me pls,i am a non eu member ,about to be married to a german citizen, i have the residential permit for one yr in germany.
    as a fotballer, i just got a contract to come play in another eu country, can i take the offer without it affecting my papers?

    • EUmovement  On November 3, 2011 at 17:45

      If you are already married to an EU citizen, then you have the right to move and live together in any other EU member state. It is essential that your EU citizen spouse is living there with you, and the EU citizen would need to work or otherwise exercise “treaty rights”.

  • ramani  On August 24, 2012 at 20:01

    i am a non eu citizen,my husband from denmark,both settledown in uk.

    i had 5 years residence permit and now i got permanant residence card.

    now my husband try to go to norway to work purpose,me and my 2 kids living in uk

    my question is,if i visit to norway to see my husband do i need a visa?

    thanks

    • EU free movement  On September 19, 2012 at 22:35

      Since you have Permanent Residence, your right to travel is now legally independent of your husband.

      Also your EU husband is in Norway working, so you and the children have a legal right to join him there, either for a visit or to move there.

      Always travel with your marriage certificate, the children’s birth certificates, and a copy of your husband’s passport. Worst case you case you can enter Norway on the basis of MRAX. See http://eumovement.wordpress.com/2010/08/04/no-visa-but-still-want-to-travel/

      • zx8754  On November 20, 2012 at 18:18

        @EUfreemovement

        I have 5 year UK residence permit – “Family Member of an EEA National”.

        I am planning to drive to and back from Slovakia (visiting family members of my wife for couple of weeks). So I will have to drive through other EEA countries (France, Belgium, Germany, and Czech Republic).

        Do I need to apply schengen visa?

        Thanks

  • denis  On October 15, 2012 at 18:43

    hii, can any one help me,i am non eu citizen, married to romanian citizen, we have to fly to france from romania. can we fly with one way ticket or we need to buy return ticket.

  • Kata  On February 6, 2013 at 18:20

    Hello :]

    Ive come to the Uk in February 2005, as a Romanian citizen, got my Blue Card in April 2007, since then ive been exercising my treaty rights. Got married in January 2011 and my son was born also in 2011. In April 2012 weve received our Hungarian passports, as we are Hungarian nationals and returned to work from Materenity Leave. Than i got separated from my husband and raising my son by myself with no financial help from his dad. I was basically forced to resign in September 2012 as i couldnt work over weekends or on ad hoc basis, as theres nobody i could leave my son with. Receiving HB and applied for Income Support in October, as i couldnt find another job, where i could work for two days but not on the weekends in order to send my son back to nursery. But after almost 8 years living and working here in the UK i have failed the HRT test for Income Support due not being able to show an Accession Card and not having right to reside in the UK and that im a person from abroad :))))), how silly is that???
    Still, nobody came to my hous to deport me :].
    My question is: Why would i need an Accession Card as a Romanian, if i have no restriction on employment under the Directive 2004?
    Why are they asking for it if im also a Hungarian citizen?
    And could i apply for a permanent residence card or a settlement card, and how would i be able to apply for those?
    Already contacted Home Office, their reply is that i dont need any work permitas im a Hungarian…., and as a Romanian i do hold a work permit.
    Ive asked them to review my application, still waiting for them to reply.

  • Amir  On February 18, 2013 at 20:58

    I am Danish, live in sweden and work in Denmark. My wife will join me from iran. I have booked a ticket to Copenhagen airport. That means she lands in Copenhagen airport.
    In the directive was read that :<<>>
    This means that: if my wife lands in CPH airport, then her visa aplication be Not treated under the directive ?

    • EU free movement  On February 27, 2013 at 11:36

      Hard to say. If you had WORKED outside of Denmark then your wife would have a clear legal right to enter Denmark to join you. You should definitely meet her at airport.

  • Roger Beth C  On April 17, 2013 at 06:59

    Its clear even though there is a law in place to protect our spouse’s, and family members, Directive2004/38/EC Freedom of movement, Member states interpret this law to suite them selves.
    It must be time now for the EU commission to sort this mess out, no government should have the right to divide/separate a family.
    Maybe the only way forward is somehow get the media involved, to embarrass the country’s who are blatantley abusing the law, profitting and causing unneccarssary distress.

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