Equal treatment

The basic rule is this:   If citizens of a host member state have a right, an advantage, a benefit, or an responsibility, then so do resident citizens of other EEA member states (and their family members).

EU citizens returning to their home member state after exercising free movement rights have also been able to invoke this principle of equal treatment (see ECJ Case C-224/98 D’Hoop v Office national de l’emploi [2002]).

Equal treatment requirements are not limited to the government.  It applies equally to other institutions in a host member state, for example: employers, businesses, service providers, transportation providers, clubs and hospitals.

There are a few limited exceptions, especially: restrictions on national security employment, citizenship rules, some student assistance, and some social assistance.

Directive 2004/38/EC

Article 24 – Equal treatment

  1. Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence.
  2. [partial exception for some social assistance payments and student support]

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EU free movement in the news

NY Times: Universities in Scotland to Charge Other Britons

The Scottish offer free university education to the Scottish and to citizens of other EU member states (and their family members!).

There is clearly an opportunity to use EU law to open Scottish universities again to applicants from the rest of the UK.

This raises some questions and options:

  • How do they determine who is “Scottish”?  Based on where they are living or where they were born?   Answer: (Guardian.co.uk and another) “Scottish […] tuition fee arrangements are based on ordinary domicile and not nationality”
  • Can the ECJ’s Singh ruling be used to force free university education for non-Scottish British citizens who have worked in another member state?   After a gap year with some work elsewhere in Europe, British students could then argue that they should be treated the same as citizens from other EU member states and receive free education in Scotland.   While the Singh ruling is mostly known for allowing spouses to move home on the basis of EU law, it has wider scope.
  • There is an interesting possibility that being from the UK (but not Scotland) may count as being from “another EU member state” for the purposes of studying in Scotland. A similar EU law argument has been proposed for English barristers being considered “qualified” to present before immigration tribunals in Scotland.

Wall Street Journal: Spaniards Seek Jobs in Germany

Citizens of Spain, where unemployment is very high, are willing to move to Germany for work.   No surprise and good for them!  They will likely get a lot more out of their move than just work.

Danke free movement!

Die Zeit: Das gelobte Land

An article about some of the variety of people who have established themselves in Germany and how they find it living there.  Many are from other EU member states.  Interesting stories!  (Article is only in German)

What does the non-EU family member need to do?

Non-EU family members of an EU citizen have a conditional right of free movement in the EU.      Namely, they have a full right of free movement so long as they are doing it with their EU citizen family member (and also in a few other cases)!

Period in host member state Any Conditions or Requirements on non-EU family member? Notes
Before initial entry Depending on the passport they are using, some family members can be required to have a visa.

Family member can travel if EU citizen is already in the host member state, will be there before the family member arrives (“join”), or they will be travelling together.

Any required visa must be issued.  It is issued for free, on the basis of an accelerated process, and as soon as possible. (See full article on required visas)
Entry to 3 months
and
3 months to 5 years
Legal residence of the EU-citizen family member is the requirement that applies in most cases.

If that is satisfied, then the non-EU family member is also legally resident in the host EEA member state and they can work if they wish.

There are also right-of-residence retention rules for cases where a marriage breaks up, or where the EU citizen stops working or dies.

“Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.” [Directive 2004/38/EC]

The EU citizen is not required to be continuously physically present in the host member state – they only have to be continuously legally resident.  So for instance, the family member can continue working in the host member state while the EU citizen travels outside, so long as the EU citizen maintains their right of legal residence.

Family member can work in this entire period, from the day of entry, so long as the EU citizen is legally resident in the host member state.

More than 5 years None!

Family member automatically has Permanent Residence (PR) after 5 years of legal residence in the host member state.

Once a family member has PR, their right to reside is now permanent, independent of the EU-citizen relationship, and independent of the continued residence of the EU citizen.

Permanent Residence (PR) is only ever lost with an absence from the host member state of more than 2 consecutive years.

Somebody with PR is not required to be working or have savings.

A “PR Card” simply confirms the already-existing Permanent Residence.

Free movement rights can only be curtailed on the exceptional grounds of public health, national security and public policy. This must be proportionate, very well grounded, can only be done in clearly proscribed situations, and there is a full right of appeal.  For most people this is a total non issue.

Same sex marriage and free movement

Six EEA countries now perform same sex marriagesBelgium, Iceland, the Netherlands, Norway, Portugal, Spain, and Sweden.   Outside the EU/EEA, Canada, Argentina, and some US states (including New York, Vermont, Connecticut, Iowa and Massachusetts) also happily marry same sex couples.

The EU free movement Directive 2004/38/EC does not explicitly refer to same sex marriages.   Point 2 of Article 2 does talk about “spouses”  and “partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a [EU/EEA] Member State” (see full definition of direct “Family Member”).

An older ECJ case, State of the Netherlands v Ann Florence Reed. [1986] EU ECJ R-59/85 (17 April 1986), seems to leave plenty of room for same-sex spouses to be just like any other spouse in “a marital relationship”:

14 Article 10 (1) of Regulation no 1612/68 provides that certain members of the ‘family‘ of a worker, including his ‘spouse’, irrespective of their nationality, ‘have the right to install themselves with a worker who is a national of one member state and who is employed in the territory of another member state’.

15 In the absence of any indication of a general social development which would justify a broad construction, and in the absence of any indication to the contrary in the regulation, it must be held that the term ‘spouse’ in Article 10 of the regulation refers to a marital relationship only.

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What does the EU citizen need to do?

What must an EU citizen be doing in order to be legally resident in a host member state?

Period in host member state Any Conditions or Requirements on EU citizen? Notes
Before initial entry None! EU citizen does not need to be in a particular member state or even in the EU.

They do not need to have work arranged in the host member state.
Entry to 3 months None!

EU citizen is automatically legally resident in the host member state.
EU citizen is automatically resident in all cases, whether they are there on holiday, looking for work, working, or anything else.
3 months to 5 years Some requirements.

EU citizen is normally required to be working, a jobseeker, self sufficient, self employed, a student, or otherwise exercising EU “treaty rights”.  (The UKBA term for this is a “qualified person”).

Special rules apply if the EU citizen has been injured while working, or is involuntarily unemployed.

Citizens of Romania and Bulgaria may have temporary work restrictions in some member states.

If so, EU citizen is legally resident in the host member state.
“Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.” (Directive 2004/38/EC)
More than 5 years None!

EU citizen automatically has Permanent Residence (PR) after 5 years of legal residence in the host member state.
Permanent Residence (PR) is only ever lost with an absence from the host member state of more than 2 consecutive years.

Somebody with PR is not required to be working, or have savings.

A “PR Card” simply confirms the already-existing Permanent Residence.

Free movement rights can only be curtailed on the exceptional grounds of public health, national security and public policy. This must be proportionate, very well grounded, can only be done in clearly proscribed situations, and there is a full right of appeal.  For most people this is a total non-issue.  (For reference, Germany refuses entry to less than 10 EU citizens per year on these grounds).

It is worth noting that the chart applies to both:

  1. An EU/EEA citizen who moves to a host member state different than the member state of which they are a citizen (e.g. A German citizen moving to France)
  2. An EU/EEA citizen who has been working or self-employed in a host member state, and who now wishes to return to their country of citizenship (e.g. A British citizen who has been working in Italy and now wants to return to the UK).  In such a case, the non-EU family is allowed to use EU free movement law for entry (ECJ case of Singh).   Once safely back in their home member state, the “EU citizen” is not required to work during the initial 5 years (ECJ ref)

ECJ Case C-157/03, Commission v Spain [2005]

ECJ Case C-157/03, Commission v Spain [2005], was about the visas that family members of EU citizens require for initial entry, and the timely processing of Residence Card applications.  The ruling applies to all member states, and make clear:

  1. A member state can not require long-term immigration visas for for family members accompanying or joining their EU family member. When they require a visa, they can only require [the equivalent of] a short term tourist visa.  Long-term immigration formalities are handled only during processing of the Residence Card.
  2. Residence [Cards] must be issued within the required maximum of 6 months.  No delay or extension is allowed.

The court’s ruling on this case is interesting because it is a useful tutorial on the strictly delimited requirements for the issue of visas and Residence Cards to non-EU family members of free-moving EU citizens.   Member states can not add requirements beyond this.

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To whom does EU freedom of movement law apply?

It can be difficult to tell when EU freedom of movement law applies. This is a first attempt at making it easier to understand.  Comments below if any of this is unclear…

You are a citizen of an EU member state and have never lived/worked in a different member state

  • EU free movement law is not relevant for a family member’s entry into your country of citizenship.  National law applies, and the rules will vary significantly depending on which member state it is.   (There are exceptions: In certain circumstances you may benefit from EU law without having resided in another EU country, for example by providing services in another EU country without residing there.  And the parents of EU citizen children have some rights to have their parents live with them)
  • EU free movement law does apply for any vacation or move to another EU/EEA member state with your family members

You are a citizen of an EU member state and are presently living/working in a different member state

  • EU free movement law governs your rights (and those of your family) in your host member state, as well as for any vacation or move to another member state
  • If you return to your home country of citizenship, you can choose to either use your country’s national immigration law or the generally simpler/easier/cheaper EU free movement law for the entry of your family members.  See information about Singh for more details

You are a citizen of an EU member state and are presently living outside the EU

  • EU free movement law governs your rights (and those of your family) to move to any other EU/EEA host member state but not the country of your citizenship
  • If you return directly to your home country of citizenship, you will likely have to use your country’s national immigration law, unless you and your family have previously been living/working in a different EU/EEA member state

Case C‑68/89 Commission v Netherlands [1991]

I have moved this blog post to it’s own page.

Click here (Case C‑68/89 Commission v Netherlands [1991]) to go to the real thing.

European Commission public consultation: EU rules on free movement of workers

European Commission public consultation: EU rules on free movement of workers

The Directorate-General Employment, Social Affairs and Inclusion launched a public consultation on possible future initiatives for the enforcement of EU rules on free movement of workers.

The objective of the consultation is to assess how to best ensure the enforcement of the right to free movement of workers and contribute to the removal of obstacles.

The European Commission wishes to obtain input from relevant stakeholders and citizens for possible future initiatives and actions in this regard.

The consultation will be open until 12 August 2011.

Do you have an opinion you want to share with the European Commission?

There is a short questionnaire focussed on discrimination while residing in another member state.  There is little scope for detailed context/answers in the online version.

 

 

 

 

 

 

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?