Entry and initial residence in the host member state

There is no restriction on an EU citizen’s entry to another EU member state, except as outlined in the section “Restrictions on freedom of movement”.   The same applies to the non-EU family member who is travelling with them.

The EU citizen is not initially required to be exercising their treaty rights, as a worker, self employed, student, etc…

Neither the EU citizen nor their non-EU family member need have money, be working anywhere, or even to have what the British call “prospects”.  They do not need to have a destination address, or fixed plans for travel.   Just grand ideas to be in another member state!

You can see this in practice when British citizens use their EU free movement rights to go to Spain, whether on holiday or to live there.   It does not matter whether or where they are employed.  It does not matter if they have assets or cash.  They can move freely and simply, without any conditions.  These same rules apply to citizens of each member state, and to their family members.

(EC) Directive 2004/38/EC:

Article 6 – Right of residence for up to three months

1.   Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport.

2.   The provisions of paragraph 1 shall also apply to family members in possession of a valid passport who are not nationals of a Member State, accompanying or joining the Union citizen.

(UK) The Immigration (European Economic Area) Regulations 2006 transposes that as:

Regulation 13.—

(1) An EEA national is entitled to reside in the United Kingdom for a period not exceeding three months beginning on the date on which he is admitted to the United Kingdom provided that he holds a valid national identity card or passport issued by an EEA State.

 (2) A family member of an EEA national residing in the United Kingdom under paragraph (1) who is not himself an EEA national is entitled to reside in the United Kingdom provided that he holds a valid passport.

(3) But—
(a) this regulation is subject to regulation 19(3)(b); and
(b) an EEA national or his family member who becomes an unreasonable burden on the social assistance system of the United Kingdom shall cease to have the right to reside under this regulation.   

It is worth carefully noting that the word “becomes” in (3)(b) is conditional and future tense:  If they become an unreasonable burden, they will then cease to have the rights.  Paragraph (3)(b) does not have any obvious correspondence in Directive 2004/38/EC, except possibly by a careful misreading of Preamble 10.

The requirements for the initial entry visa are discussed extensively in ECJ case C-157/03, Commission v Spain [2005].  The judge notes:

36.      Therefore, those family members are required to carry out the formalities governing residence before entering Spanish territory, failing which the issue of the [visa] will be refused.

The judge then prohibits Spain from requiring the formalities of a Residence application as part of the visa process:

38.      Consequently, the residence visa requirement laid down by the Spanish rules in order to obtain a residence permit and, consequently, the refusal to issue such a permit to a third-country national who is a member of the family of a Community national, on the ground that he or she should first have applied for a residence visa at the Spanish consulate in their last place of domicile thus constitutes a measure contrary to the provisions of Directives 68/360, 73/148 and 90/365.

Directive 2004/38/EC is also clear that the formalities of a Registration Certificate for the EU citizen and a Residence Card for the non-EU family member can only be required after the person has been resident in the host member state for at least three months:

(EC) Directive 2004/38/EC:

Article 8 – Administrative formalities for Union citizens

1. Without prejudice to Article 5(5), for periods of residence longer than three months, the host Member State may require Union citizens to register with the relevant authorities.

2. The deadline for registration may not be less than three months from the date of arrival.

Article 9- Administrative formalities for family members who are not nationals of a Member State

1. Member States shall issue a residence card to family members of a Union citizen who are not nationals of a Member State, where the planned period of residence is for more than three months.

2. The deadline for submitting the residence card application may not be less than three months from the date of arrival.

The Immigration (European Economic Area) Regulations 2006 does not transpose Articles 8 and 9 into UK law (Reference:  EC commissioned Table of correspondence).   While one might naively assume that these two articles are not relevant (since Registration and Residence Cards are described as “optional” by UKBA), that is only true so long as the formalities referred to in the articles (for both the EU citizen and the family member) are not instead made mandatory before even entering the UK, as part of the family member’s visa application.

Because they were not transposed, Article 8 and 9 instead have direct effect in the United Kingdom.

NOTE: This post was originally written as part of a complaint to the European Commission about UKBA (the British immigration agency) handling of EEA Family Permits, hence the references to UK law and the “Immigration (European Economic Area) Regulations 2006”.   But each EU member state must transpose Directive 2004/38/EC into their national law, and do so faithfully to the original.  This law applies equally in all 27 member states!