How are non-EU family members evaluated?

European free movement law is structured to ensure that the EU citizen has a clear path to move to another EU country.   (Many of the ECJ court decisions enabling free movement rights for family members are justified, in large part, because restricting the rights of family to accompany the EU citizen will discourage the EU citizen from exercising their free movement right).

The non-EU family have a right to be with their on-the-move EU family members, and have the same rights to work or study or access the resources of the host member state.

When free movement is the topic, the law centres around the EU citizen.

  • Family members can get a free visa, to be issued “as soon as possible and on the basis of an accelerated process”, as long as they will be travelling with or joining the EU citizen.
  • Family members can enter without a required visa as long as they are travelling with the EU citizen and are carrying proof of the relationship.
  • Family members are entitled to a Residence Card when the EU citizen is exercising treaty rights.
  • After a period in another host member state, family members can move back with their EU citizen family member to the EU citizen’s home country.
Never is the non-EU family member evaluated on or given preference because:
  1. they are smart
  2. they have been successful
  3. they are working
  4. they are rich or are paid lots
  5. they are beautiful
  6. they play chess well
  7. of their age / sex / race / nationality

These things may or may not be important within a specific family, but they play no role in any free movement decision under EU law.

The SINGLE thing that qualifies non-EU family members to have free movement rights is that they are the family member of an EU citizen whom they will be travelling with.

Exception 1: The non-EU family member retains, in some situations, right of residence if the EU citizen dies or there is a divorce in a long-standing relationship.

Exception 2: the family member (and also the EU citizen!) can in theory be refused if they individually are a very specific threat to national security or to big public policy.  But this is rare and there is a high barrier for this being used to exclude people.

See also:  What does the EU citizen need to do?

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  • Zack  On June 5, 2011 at 17:56

    What of a situation where the non-eea spouse is not lawfully residing in the eu departure country, can he still apply for a visa and would he or she be given? For example, an overstayer from UK who wants to relocate to Ireland with his spouse without going through his or her home country?

    • eumovement  On June 5, 2011 at 18:05

      If they are married, and the EEA spouse is working, then the non-EEA spouse is completely legal in the UK. So it is no issue to apply for a visa!

      • blogxpat  On June 19, 2011 at 00:34

        Thanks for the reply. However, in this case if the EEA spouse referred to is a British national and both are resident in the UK at the moment, does the non-EEA spouse have to return to her country before travelling to Ireland or can they travel together from the UK despite the fact that she doesn’t have a valid visa.

      • eumovement  On June 21, 2011 at 19:23

        If the EEA citizen is living in their home country, and has not moved to another EEA country to work, then normal national immigration laws generally apply and EU free movement law does not apply. So the non-EEA spouse might not be presently legally resident in the UK.

        But can you still move to Ireland! I think yes, and there are a number of options…

        Try applying for a visa at the Irish embassy. Maybe they will grant it, and then you just move easily. You can always complain through Solvit if there is a problem.

        And otherwise you can consider travelling without a visa. Remember that as soon as you enter Irish territory, the UK citizen starts exercising their right of free movement and their non-EU family members are entitled to join them.

        You could fly to Dublin, and that might or might not work depending on whether the airline insists you have a visa before you get on the plane. Or you could fly to Belfast, and then drive or take the train to Dublin. Or take the ferry from the Britain to Ireland. And with luck there will be a border control so that you can show your passports and marriage certificate and get an entry stamp as you enter Ireland.

  • Rowah  On June 21, 2011 at 18:52

    Never is the non-EU family member evaluated on or given preference because of:

    how beautiful they are
    how well they play chess

    hahahaha! Made me laugh! 🙂

  • sandra bolongaro  On October 12, 2011 at 19:34

    my son has the eu residency card because of my marriage to an italian national. We are currently living in ireland (9yrs, 7mnths now). He was a scholar at the time but now he is 21yrs old and unemployed and not at college. We have just applied for his permanent resident card. Would his status affect his chances of getting permanent residency and how long is permanent residency, I read somewhere that the card is automatically renewed. Does that mean we do not need to reapply after the card has expired. My husband is still employed as well as myself though. thanks in advanced

    • EUmovement  On October 20, 2011 at 16:08

      If the Italian citizen was working for the first 5 years of your common residence in Ireland, than the Italian has permanent residence. Your son would also then automatically have it after residing in Ireland for 5 years. The card lasts for at least 10 years, and can be easily renewed after that. Key is what the EU citizen was doing in the first 5 years.

  • laytol vaye  On March 16, 2013 at 14:09

    i am a non EU nationl and a spouse of a eu national and our marriage have broken down to domestic violence.we are sperated but not divorce yet.i was turn away from a women refuse due to no recourse to public funds and been living in shelters from one to another not knowing my rights.

    i been working during my stay in the Uk and never calaim and form of benefit ever and did a application in 2011 for resident card and receive a certificate of application never heard from the home office again.

    with my document stay with home office i receive a letter 2013 from them stating that i got no rights to be in the UK since i am no longing living with partner,and that i can not appeal.

    please tell me if i can appeal on their descision or what rights do i have?

  • John  On May 7, 2013 at 12:29

    Hello, I am a US citizen and in 2005 I married a French citizen and we had a child together in the US. In 2008 we all moved to Alsace, France and my daughter became a French citizen and I received my carte de sejour and worked as an English teacher. We divorced in France 2011 and I returned to the US. My daughter has remained in France. I want to go back to Alsace, France permanently to be closer to my 6 year old daughter and return to work as an English teacher. I was recently denied a visa and I would like to have help from a lawyer to re-apply for the correct visa. Do I have any rights to be in France with my daughter and work? Your help is greatly appreciated.

  • Ivo Ivo  On September 26, 2013 at 18:47

    I am married to a Finnish citizen who is currently residing and exercising her right of free movement within the EU.I am non EU citizen currently i live with my wife in Sweden.Do i have the right to apply for a residence card even though i am not is possession of any residence permit issued by any EU states? She is an emplyee here and also i wish to know how long does she needs to work in a member states before i could be issue a visa to re-unite with her considering that i need to apply from my country of origin.Thanks

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