Directive 2004/38/EC on the right to move and reside freely
|European Union directive:|
|Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States not without visa|
|Made by||European Parliament & Council|
|Made under||Arts 12, 18, 40, 44 and 52 TEC|
|Came into force||2004-04-30|
|Implementation date||required by 2006-04-29|
|Replaces||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|
|Amends||regulation (EEC) No 1612/68|
|Status: Current legislation|
The Directive 2004/38/EC of the European 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 defines the right of free movement for citizens of the European Economic Area (EEA), which includes the European Union (EU) and the three European Free Trade Association (EFTA) members Iceland, Norway and Liechtenstein. Switzerland, which is a member of EFTA but not of the EEA, is not bound by the Directive but rather has a separate bilateral agreement on the free movement with the EU.
This directive mostly consolidated older regulations and directives, although it did also extend the rights of unmarried couples.
Whilst some of the formulations remain complex, the basic premise of the directive is simple: EEA citizens have the right of free movement and residence across the European Economic Area, as long as they are not an undue burden on the country of residence and have comprehensive health insurance. This right also extends to close family members that are not EEA citizens.
After five years, the right of residence becomes permanent, which means it does not depend on any precondition any longer. This permanent right of residence can be seen as a precursor to a true European Citizenship.
The directive applies to any EEA citizen that is moving to and living in an EEA state other than his own. (The exclusion is based on the principle of non-interference with purely national issues). However, it also applies when a European citizen is moving back to his home country after staying abroad, as defined in the case of Surinder Singh. For dual citizens with two EEA nationalities the directive can apply in any EEA state. Temporary limitations are in place for the new member states of the EU.
To be fully covered by the European right of free movement, the EEA citizen needs to exercise one of the four treaty rights:
- working as an employee (this includes looking for work for a reasonable amount of time),
- working as a self-employed person,
- being self-sufficient or retired.
These rights are named after the Treaty of Rome, which defines the freedom of movement for workers. They have been extended over time, and are mainly of historical significance by now, since being self-sufficient has been added to the list. As long as a citizen has sufficient money or income not to rely on public funds and holds comprehensive health insurance, he/she exercises one or more treaty rights. If no treaty right is exercised, the right of free movement is limited to three months.
Family members are also covered by the right of free movement, but only as a dependent of the EEA citizen. The right is limited to the EEA state in which the EEA citizen is exercising treaty rights. In certain cases (e.g. divorce after at least 3 years of marriage where 1 year must have been spent in the host member state), the family member can retain the right of residence. A family member is defined as:
- the spouse (unless in a marriage of convenience),
- the registered same-sex partner (but only in a state where same-sex relationships are recognised),
- a child under the age of 21, or
- a dependent child or parent (of the EEA citizen or partner).
There is a second category of extended family members, which can be included at the discretion of national legislation. It covers dependent relatives (especially siblings), dependent household members and unmarried/unregistered partners in a "durable relationship".
The right of free movement is granted automatically when the requirements are fulfilled, and it is not subject to an administrative act. However, member states may require the EEA citizen and family members to register with the relevant authorities. The relevant documentations are:
- an entry visa for the non-EEA family members if they are visa nationals and do not hold a residence card from another member state,
- a residence certificate (for EEA citizens) or a residence card (for non-EEA family members), which may be valid for up to 5 years and confirms the right of residence,
- a permanent residence certificate or a permanent residence card, which certifies the right of permanent residence.
Permanent residence is acquired automatically after exercising treaty rights for 5 years, with absences of normally less than 6 months a year, a single absences less than 12 months in certain circumstances (birth, severe sickness, etc.), or longer for military services. Permanent residence removes any restrictions that are in place concerning access to public funds (such as unemployment benefits, a state pension etc.), although some of these restrictions are already lifted after a period of 3 months. Permanent residence is only lost after an absence of 2 years.
All applications covered by the directive are free, or require at most a moderate fee similar to comparable national documents.
Disputed issues and case law
While the directive is visionary and has far reaching implications, it is also the product both of a historical development and of conflicting interests. So it is not surprising that it contains unclear requirements and sometimes even contradictory statements, that require further interpretation. The main open questions are presented below.
Does the directive apply if a family member is currently outside of the EEA, or is illegally present in the EEA? The text of the directive seems to imply this, but there is also legal precedence to the contrary. The ECJ has passed a number of unclear judgements on this issue, which leaves a degree of discretion in the implementation. In the Akrich case, a remark limits the applicability to legal residence of the EEA. However, in the MRAX case, the unconditional right of family reunion is reiterated for spouses. In the Metock case, the ECJ has ruled that the non-community spouse of an EEA citizen can move and reside with that citizen in the Union without having previously been lawfully resident in a member state.
Does a residence card from one state serve as a visa for another? Again the text of the directive implies this, but it is not made explicit. Within the area of the Schengen Agreement this is not an issue, but the UK does not recognise cards issued by other member states. As of December 2008 five Member states have not transposed the Directive Article 5(2) correctly.
Irish High Court Case Raducan & Anor -v- MJELR & Ors The case is about the Moldovan wife of a Romanian citizen who was denied entry to Ireland and was detained for three days. She was not given entry on presenting her Residence Card as a family member of an EU citizen (Article 5(2) of the Directive 2004/38/EC), nor was her entry facilitated when she presented a marriage certificate proving her relationship to her EU husband. The Irish Court Ruled
- It is a matter of profound regret that a perfectly innocent [family member of an EU citizen] who had every right to enter [Ireland] was instead refused entry and found herself obliged to spend the equivalent of almost three full days in custody.
What are the rights of a separated spouse before or during divorce? While the directive says that the family member is covered until the decree absolute is issued, the rights can be difficult to use. Without the cooperation of the EEA citizen, or if the EEA citizen leaves the country, the non-EEA spouse is left in a legal vacuum.
In which circumstances can the right of free movement apply to the home country of the EEA national? In the case of Surinder Singh, the ECJ rules that a worker can bring his spouse back to his home country after working in another EEA state for at least 6 months. However, this judgement was based on previous legislation, and it is unclear whether it also applies to more recent treaty rights.
The case of C-456/12 clarifies the directive. An EEA citizen can go to another state and exercise freedom of movement under Article 21(1) TFEU, the right to free movement, there is no requirement to be a worker or self-employed. The EEA citizen and his non-EEA partner can return to his/her home state after a period of residence in a host state for longer than 3 months providing they have created or strengthened a family tie.
As a Directive, this text is not directly applicable, but it has to be transposed into the national legislation. It defines a basic right, while the member states can determine in which way this right is granted. The deadline for implementation was the 2006-04-30, although a number of member states have missed this deadline by a few months. The following presents an (incomplete) overview of the implementation. An implementation report by the European commission was published in December 2008 which concluded that "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." As announced in this report the European commission released guidance on how to better transpose and apply the Directive in July 2009.
In the UK, the directive is transposed into the Immigration (European Economic Area) Regulations 2006 amended by SI 2009/1117 and amended by SI 2011/1247. The implementation is reasonably complete and accurate although non-EEA family members require an entrance clearance (called EEA Family Permit) to enter the UK even if they are in possession of a 5-year residence card of another EEA member state, in breach of the Directive. The UK law recognises same-sex relationships, and it also has a clause for unmarried/unregistered partners. Applications are £55 and additional £55 per dependant.
In Ireland, the Directive is transposed into the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 amended by SI 310 of 2008 in reaction to the Metock case and amended by SI 146 of 2011 allowing visa free entrance with a residence card issued by another EEA member state.
The non-EEA family members of Irish citizens resident in Ireland are not normally issued EU Family Residency Cards (called Stamp 4 EU FAM) unless the Irish citizen and family members previously lived together in another EU state.
In Austria, the directive is transposed into national law mainly via the Niederlassungs- und Aufenthaltsgesetz (regarding residence) and the Fremdenpolizeigesetz (regarding entrance). The applications are handled locally at the Magistrat or Bezirkshauptmannschaft (except in Styria where the Landeshauptmann takes direct responsibility). A credit card sized plastic card (costing about €57 in 2010) is issued to document one's right.
In Germany, the directive is transposed into national law via the Freizügigkeitsgesetz/EU, which could be translated as freedom of movement law/EU. Wikipedia has a short German article on it. Not all mandatory sections of the Directive are included in the Freizügigkeitsgesetz/EU. The applications are handled locally, together with the mandatory registration of residence.
In Italy the directive has been implemented into Italian legislation with Legislative Decree n. 30 of February 6, 2007 The applications are handled by the "Questura" of the province where the applicant takes his residence.
Applications are submitted locally at the municipality ("gemeente" in Dutch) together with the mandatory registration of residence, but they are processed centrally at the "Immigratie- en Naturalisatiedienst" (IND—Immigration and Naturalisation Service). There is a charge (€42 in 2013) associated with the application.
The family members of Dutch citizens who are and have always been resident in the Netherlands are not permitted to hold EU Family Residency Cards, because EU nationals who have always lived in the country of their nationality are not exercising EU treaty rights and are therefore not considered EU citizens under Dutch law for the purposes of the Directive.
In Sweden the directive has been implemented through changes in several laws, like the Alien Act (SFS 2005:71), and the Aliens Decree (SFS 2006:97). Sweden does still (2013) not follow the directive fully, as the national identity card is not accepted when a Swedish citizen leaves Sweden for a non-Schengen EU member state, like the UK. The passport act (SFS 1978:302) requires a passport.
The EEA countries have had to implement this directive in full. In Norway this was implemented by changing the Alien Law (Norwegian: utlendingsloven), which entered into force on 1. Jan 2010.
Switzerland is not part of the EU or EEA, but have bilateral agreements in several fields, including free movement of people. There is an agreement, which contains the same principles as the directive. This includes:
- the right to personal and geographical mobility;
- the right of residence for members of the family and their right to pursue an economic activity, irrespective of their nationality;
- the right to acquire immovable property, specifically in order to establish a main or secondary residence in the host State;
- the right to return to the host State after the end of an economic activity or period of residence there.
for citizens of EU, EEA and Switzerland in all these countries.
Switzerland have had to adopt amendments when the directive was updated or new member countries were added.
- Freedom of movement for workers
- Internal market
- Ireland's Stamp 4
- UK's EEA family permit
- Visa policy in the European Union
- "Directive 2004/38/EC of the European 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" (in English). 2004-04-29. Retrieved 2008-12-17.
- Summary of the Directive 2004/38/EC "Right of Union citizens and their family members to move and reside freely within the territory of the Member States" (in English). 2006-05-02. Retrieved 2008-12-17.
- "Decision of the EEA Joint Committee No 158/2007 of 7 December 2007 amending Annex V (Free movement of workers) and Annex VIII (Right of establishment) to the EEA Agreement" (PDF) (in English). 2007-12-07. Retrieved 2008-12-22.
- Article 7(1) of the Directive.
- Case C-370/90 "Judgment of the Court of 7 July 1992. The Queen v Immigration Appeal Tribunal et Surinder Singh, ex parte Secretary of State for Home Department." (in English). 1992-07-07. Retrieved 2008-12-27.
- Article 16(3) of the Directive.
- Case C-109/01 "Judgment of the Court of 23 September 2003. Secretary of State for the Home Department v Hacene Akrich." (in English). 2003-09-23. Retrieved 2009-01-12.
- Case C-459/99 "Judgment of the Court of 25 July 2002. Mouvement contre le racisme, l'antisémitisme et la xénophobie ASBL (MRAX) v Belgian State." (in English). 2002-07-25. Retrieved 2009-01-12.
- Case C‑127/081 "Judgment of the Court of 25 July 2008. High Court (Ireland) v Metock et al." (in English). 2008-07-25. Retrieved 2009-01-12.
- "National provisions communicated by the member states concerning the Directive" (in English). Retrieved 2009-02-06.
- "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 Member States" (PDF) (in English). 2008-12-12. Retrieved 2008-12-17.
- Press release for the commission report "Free movement and residence rights of EU citizens and their families: the Commission assesses application by Member States" (PDF) (in English). 2008-12-10. Retrieved 2008-12-17.
- "COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on guidance for better transposition and 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" (in English). 2009-07-02. Retrieved 2009-07-12.
- "Statutory Instrument 2006 No. 1003 - The Immigration (European Economic Area) Regulations 2006" (in English). 2006-04-30. Retrieved 2008-12-17.
- "Statutory Instruments 2009 No. 1117 - The Immigration (European Economic Area) (Amendment) Regulations 2009" (in English). 2009-06-01. Retrieved 2009-09-14.
- "Statutory Instruments 2011 No. 1247 - The Immigration (European Economic Area) (Amendment) Regulations 2011" (in English). 2011-06-02. Retrieved 2011-06-02.
- see the interpretation of "residence card" in Regulation 2 of the EEA regulations
- see the Correspondence Table
- see the response of the EU Commission to Petition 1307/2007
- "S.I. No. 656/2006 — European Communities (Free Movement of Persons) (No. 2) Regulations 2006" (PDF) (in English). 2007-01-01. Retrieved 2008-12-17.
- "S.I. No. 310/2008 — European Communities (Free Movement of Persons) (Amendment) Regulations 2008" (PDF) (in English). 2008-01-01. Retrieved 2009-04-15.
- "S.I. No. 146/2011 — Immigration Act 2004 (Visas) Order 2011" (PDF) (in English). 2011-03-28. Retrieved 2011-05-26.
- "Bundesrecht konsolidiert: Gesamte Rechtsvorschrift für Niederlassungs- und Aufenthaltsgesetz" (in German). Rechtsinformationssystem des Bundes (RIS). Retrieved 2011-07-01.
- "Bundesrecht konsolidiert: Gesamte Rechtsvorschrift für Fremdenpolizeigesetz 2005" (in German). Rechtsinformationssystem des Bundes (RIS). Retrieved 2011-07-01.
- "Gesetz über die allgemeine Freizügigkeit von Unionsbürgern (Freizügigkeitsgesetz/EU - FreizügG/EU)" (in German). 2006-07-30. Retrieved 2008-12-17.
- "Decreto Legislativo 6 febbraio 2007, n. 30 - Attuazione della direttiva 2004/38/CE relativa al diritto dei cittadini dell'Unione e dei loro familiari di circolare e di soggiornare liberamente nel territorio degli Stati membri" (in Italian). 2007-03-27. Retrieved 2011-02-07.
- Embassy of Netherlands page on 2004/38/EC
- Tatsiana Turgot. "Directive 2004/38/EC ... transposition". Milieu Ltd.
- Agreement with the Swiss Federation: free movement of persons
- P Craig and G de Burca, European Union Law (4th edn OUP 2008)