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Guidelines on free movement and residence rights of EU citizens and their families - briefing

02 July 2009
by eub2 -- last modified 02 July 2009

Guidelines on free movement and residence rights of EU citizens and their families


Why are Guidelines necessary?

Free movement of persons is one of the pillars of the Union and a fundamental right of EU citizens. It brings great benefits for EU citizens, for the Member States and for the European economy as a whole. About eight million EU citizens live and work in another Member State, and every year millions of citizens travel for pleasure or business within the EU.

On 10 December 2008 the Commission issued its report on the transposition and the application of Directive 2004/38/EC 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. The report concluded that the overall transposition of the Directive was disappointing. The report lists the main problem areas with the transposition and application of the Directive.

The Commission is committed to ensure that European citizens fully benefit from their free movement rights. The first step to make this happen is to provide information and guidance, both to the citizens and to the Member States. The Guidelines are part of this effort.

Member States are responsible for the application of the Directive on the ground. This is why the Commission intends to work in partnership with them to ensure that European citizens fully benefit from the Directive. A group of experts was created in September 2008. The meetings of the Group of experts have identified a number of areas where guidelines from the Commission would be necessary for the Member States to better transpose and implement the Directive.

What do the Guidelines aim to achieve?

This Communication aims to provide guidance to Member States on how to apply correctly Directive 2004/38. The objective is to make more effective the application of the Directive on the ground and to bring a real improvement for all EU citizens.

With the Guidelines the Commission intends to offer information and assistance to both Member States and EU citizens on issues identified as problematic in transposition or application.

How does the citizen benefit from the Guidelines?

The guidelines help citizens to obtain more clarity on a number of issues. The guidelines provide transparency on some notions such as sufficient resources. Moreover, by providing clarity on the notions of public policy and public security and on the proportionality assessment, citizens are in a better position to assess whether their rights are being respected.

Are the Guidelines binding?

No. The Guidelines state the views of the Commission and are without prejudice to the case-law of the Court of Justice.

The guidelines do not contain any assessment of legislation and practices in place in the Member States.

Do the Guidelines provide clear standard solutions that would be applicable in all cases?

No. The Guidelines clarify general principles, but many of the rules contained in the Directive require a case-by-case assessment of the situation of the individual. The Guidelines are not intended to replace this case-by-case assessment by the authorities of the Member States.

Are the examples taken from real life?

No. The examples are there to simplify the reading of the Guidelines and do not come from individual cases that were presented to the Commission.

Why is the Commission not simply amending the Directive?

Given the unsatisfactory state of implementation of the Directive, the Commission is of the opinion that it would be detrimental to propose amendments to the Directive at this stage. The main problems that have been identified can be solved through better implementation of the Directive.

What do the Guidelines say?

The Guidelines are structured in three chapters:

Entry and residence of EU citizens and family members

This section clarifies the notion of dependency of members of the household, the conditions for the issuing of visas and residence cards to third country family members, and the notion of sufficient resources for citizens other than workers and students. These are all areas that were identified as problematic in the Commission report of December 2008.

Restrictions of the right to move and reside freely on grounds of public policy or public security

The right of free movement within the EU carries with it obligations on the part of its beneficiaries, which implies to obey the laws of their host country. This section updates the content of the 1999 Communication in the light of the recent case-law of the Court and clarifies certain questions concerning possible restrictions of the right to move and reside freely on grounds of public security or public policy.

Abuse and fraud

This section concerns the measures to fight against abuse and fraud by refusing, terminating or withdrawing any right conferred by the Directive in the case of abuse of rights or fraud, such as marriages of convenience. The Directive does not prevent Member States from investigating individual cases where there is a well-founded suspicion of abuse. Member States may define a set of indicative criteria suggesting the possible intention to abuse the rights conferred by the Directive for the sole purpose of contravening national immigration laws.

Which follow-up is envisaged to these Guidelines?

The Guidelines are part of a wider effort to ensure the effective implementation of Directive 2004/38. The Commission will continue discussing with the Member States at technical level through the experts group and is currently preparing bilateral meetings with all of the Member States to review the state of play of the transposition and application of the Directive. The Commission will make full use of the powers conferred on it by the Treaty.

The Commission will also continue with its efforts to improve communication to the citizens. To this end, it is working on an updated version of the simplified guide for the citizen and on a Wikipedia article on the rights of citizens.

When can a member of the household be considered "dependent"?

A family member is 'dependent' when material support for that family member is provided by the EU citizen or by their spouse/partner.

In order to determine whether family members are dependent, it must be assessed in the individual case whether, having regard to their financial and social conditions, they need material support to meet their essential needs in their country of origin or the country from which they came at the time when they applied to join the EU citizen.

The Directive does not lay down any requirement as to the minimum duration of the dependency or the amount of material support provided, as long as the dependency is genuine and structural in character.

Dependent family members are required to present documentary evidence that they are dependent.

Do third country nationals who are members of the family of an EU citizen require entry visas? Do they have the right to obtain one?

Member States may require third country family members moving with or joining an EU citizen to whom the Directive applies to have an entry visa. Such family members have not only the right to enter the territory of the Member State, but also the right to obtain an entry visa. This distinguishes them from other third country nationals, who have no such right.

For EU citizens other than workers, self-employed and student, the Directive requires the possession of sufficient resources. How is that calculated?

The first step to assess the existence of sufficient resources should be whether the EU citizen (and family members who derive their right of residence from him or her) would meet the national criteria to be granted the basic social assistance benefit.

EU citizens have sufficient resources where the level of their resources is higher than the threshold under which a minimum subsistence benefit is granted in the host Member State. Where this criterion is not applicable, the minimum social security pension should be taken into account.

Is it possible to lay down a fixed minimum level of resources?

Member States cannot lay down a fixed amount to be regarded as "sufficient resources" , either directly or indirectly, below which the right of residence can be automatically refused. The authorities of the Member States must take into account the personal situation of the individual concerned. Resources from a third person must be accepted.

National authorities can, when necessary, undertake checks as to the existence of the resources, their lawfulness, amount and availability. The resources do not have to be periodic and can be in the form of accumulated capital.

In assessing whether an individual whose resources can no longer be regarded as sufficient and who was granted the minimum subsistence benefit is or has become an unreasonable burden, the authorities of the Member States must carry out a proportionality test.

Can Member States fight against criminality effectively and respect the rules of the Directive?

Yes. First and foremost, EU citizens who commit crimes in the host Member State are subject to the same consequences as the citizens of that Member State. Secondly, under the Directive Member States may restrict the freedom of movement of EU citizens on grounds of public policy or public security. These decisions must be made on a case-by-case basis and must respect all of the guarantees laid down in the Directive (for example: appeals against expulsion decisions must be possible).

Under which conditions can EU citizens be expelled from the host Member State?

There are two conditions. The first is that the personal conduct of an individual represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of the society of the host Member State. Restrictive measures on general preventive grounds are not possible.

The second condition is that national authorities carry out a proportionality assessment to decide whether the person concerned can be denied entry or removed. The personal and family situation of the individual concerned must be assessed carefully with a view to establishing whether the envisaged measure is appropriate and does not go beyond what is strictly necessary to achieve the objective pursued, and whether there are less stringent measures to achieve that objective.

Do previous criminal convictions imply automatically refusal of entry or expulsion?

A previous criminal conviction can be taken into account only if they are evidence of personal conduct constituting a present threat to the requirements of public policy. The authorities must base their decision on an assessment of the future conduct of the individual concerned.

Can anyone be expelled for persistent petty criminality?

In certain circumstances, persistent petty criminality may represent a threat to public policy, despite the fact that any single crime/offence, taken individually, would be insufficient to represent a sufficiently serious threat as defined above.

How are long term residents protected against expulsion?

Long-term residents will have developed strong links with the host Member State. This is why the Directive lays down rules to give long-term residents increased protection against expulsion. EU citizens and their family members who are permanent residents (after five years) in the host Member State can be expelled only on serious grounds of public policy or public security. EU citizens residing for more than after ten years and children can be expelled only on imperative grounds of public security (not public policy). There must be a clear distinction between normal, 'serious' and 'imperative' grounds on which the expulsion can be taken.

How can Member States fight against abuse?

In case that abuse is detected, the Member States may deny or withdraw, at any time, the benefits granted under the Directive.

How to fight against the phenomenon of marriages of convenience?

Marriages of convenience are marriages contracted for the sole purpose of enjoying the right of free movement and residence under the Directive that someone would not have otherwise. Member States can investigate individual cases where there is a well-founded suspicion of abuse.

Member States may define a set of indicative criteria suggesting the possible intention to abuse the rights conferred by the Directive for the sole purpose of contravening national immigration laws.

The above criteria are triggers for investigation, without any automatic inferences from results or subsequent investigations. Member States may not rely on one sole attribute; due attention must be given to all the circumstances of the individual case.

Can Member States carry out ex-post sample reviews of family reunifications?

Yes, Member States can carry out ex-post sample reviews. Where such reviews give rise to doubt of abuse in individual cases, the Directive allows Member States to investigate.

What about EU citizens who claim to be covered by the EU rules on free movement?

Abuse could also occur when EU citizens, unable to be joined by their third country family members in their Member State of origin because of the application of national immigration rules preventing it, move to another Member State with the sole purpose to evade, upon returning to their home Member State, the national law that frustrated their family reunification efforts, invoking their rights under Community law. The defining characteristics of the line between genuine and abusive use of Community law should be based on the assessment of whether the exercise of Community rights in a Member State from which the EU citizens and their family members return was genuine and effective.

Source: European Commission

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