The 2004 EU Citizens Directive in 2004 consolidates and updates earlier legislation. It seeks to reduce formalities and minimise the bases for refusal of entry. It introduced the concept of permanent residence.
The directive applies to an EU citizen and family members. Family members cover spouse, direct descendants under 21 and the EU citizen’s direct dependent and those of a spouse or partner. A partner is one with whom a registered partnership such as civil partnership has been contracted under the law.
EU directive declares the rights of citizens of the EU and of families to move freely within the EU. The directive was introduced in the context of the introduction of the notion of European Union citizens. It merged existing directives on freedom of movement into a more comprehensive right for citizens of the EU to exercise the right to move and reside freely. This legislation sought to remove and limit administrative formalities to a minimum.
Citizens of the EU have a right to enter another state by virtue of having an identity card or valid passport. Entry or exit visas may not be required. If citizens do not have travel documents the host state must afford them a reasonable means of obtaining their requisite documents or having them sent.
Certain family members who do not have the nationality of an EU state enjoy the same rights as the citizens they accompany. This may be subject to a short stay, visa requirement. Resident permits will be deemed equivalent to short stay visa.
All EU citizens may enter another state with a passport or a valid identity document. If they do not hold them, they must be given the opportunity to have them remitted. Entry or exit fees may not be required. A family member of an EU national who is not an EU national may be required to have a visa for short stay. Citizens and family members may be obliged to register in the host state within a reasonable time. Penalties for noncompliance must be proportionate. Short-term entry is for up to three months in the above circumstances.
If a stay is less than 3 months, the only requirement for EU citizens is that they possess a valid identity document or passport. The state may require persons whom they host to register their presence within a reasonable or known discriminatory period of time.
The right of residence for more than 3 months is subject to certain conditions. Applicants must be engaged in economic activity as either employed or self-employed. Alternatively, they must have sufficient resources and sickness insurance to ensure that they do not become a burden on the social service of the host state during their stay. States may not specify a minimum amount which they deem sufficient. They must take account of personal circumstances.
Residence permits are abolished for citizens of the EU. States may require them to register with competent authorities within a period of not less than 3 months from the date of arrival. Proof of registration will be issued immediately on presentation of an identity card or passport and proof that one of the above conditions are complied with.
Citizens engaged in training must show by means of a statement or other means that they have sufficient resources for themselves and their families to ensure they do not become a burden on the social services of the host state.
Family members of Union citizens who are not nationals of an EU state must apply for a residents’ permit for family members of Union citizens. These permits are valid for five years from the date of issue.
Under certain conditions. the death of a citizen of the EU, his departure from the host state, divorce, annulment, or marriage or termination of partnership, does not affect the right of family members who are not nationals of a state to keep residing in the state in question.
Family Members and Dependents
There are prospective rights of entry for other family members. States must look at the family circumstances and must show an objective basis if they choose to deny residence
- dependents members of a household,
- those who require personal care by EU citizens on serious health grounds and
- partners with whom the citizen has a durable relationship duly attested
may qualify on these grounds.
States must assess whether the person is a dependent. This may involve assessing whether the person is in a position to support himself having regard to financial and social conditions in the Member State of origin or the member state from whence he came when the application to join the EU national is made.
The spouse of an EU national need not necessarily live with the EU national. However, their marriage must not be a sham marriage. A spouse or partner who is not an EU national retains certain rights on divorce or the termination of civil partnership.
A spouse, partner etc. non-national who is employed, self-employed or has sufficient resources not to be a burden on the social security system or has appropriate sickness insurance cover (or equivalent) as a family member accompanying, or joining EU citizen and satisfies conditions, retains rights of residence provided one of the following are complied with.
- the relationship must have lasted at least three years including one in the host state
- by agreement or court order, the person has access to a minor child and court must have ruled such access is to be in the member state.
The right of residence continues after the death of the EU citizen provided the non-EU national of his / her family or his family have resided in the state as family members for at least one year prior to the death and satisfy one of the above conditions.
When the EU citizen dies or leaves the state the right of residence for his children or the parent with custody does not end if the children reside in the state and are enrolled at an educational establishment. Where national law protects rights of a cohabitant, domestic national equivalent rights are available for a cohabitee of an EC national.
Economically Inactive Persons
The rights for residence in excess of three months apply differently to different categories.
- employees and self-employed persons including those who are temporarily out of work for reasons of illness, accident, are involuntarily unemployed and registered as job seekers or are on vocational training, have a continuing right of residence.
- people who are economically inactive and their families with sufficient resources such that they are not a burden on the social security system. They must be covered by illness insurance in respect of all this in their host state.
- students enrolled in accredited public or private financial institutions with sufficient resources so that they are not a burden on the social security system of the host state, They must have insurance and means of support.
States may decide whether to grant social assistance to nationals and families during the first 90 day period of residence or in the case of job seekers, for longer periods. The states need not grant maintenance, aid for study or student grants other than for employed, self-employed persons and their families.
States may assess the sufficiency of resources on the part of persons claiming a right of residence. The amount should not be higher than the level of social assistance or the minimum social security pension.
Non-EU family members must obtain a residence permit which must be given within six months of application and be valid for five years. Persons may be deported on grounds of public health, security, or policy. Sanctions for noncompliance with administrative formalities must be proportionate.
After a five year period of uninterrupted legal residence in an EU state, EU nationals and their families are given a right of permanent residence. This is not so if they are absent for more than two successive years. Union citizens acquire a right of permanent residence in the host state after 5 years of uninterrupted legal residence provided that an expulsion decision has not been enforced against them.
The same rules apply to family members who are not nationals of an EU state and who have lived with a Union citizen for 5 years. The right of permanent residence is lost only in the event of more than 2 years of successive absence.
Union citizens who so request must receive the documents certifying their right to permanent residence. Member states must issue to third country family members permanent residence permits which are valid indefinitely and renewable automatically every 10 years no later than 6 months after the application is made. Citizens can use any form of evidence generally accepted in the state to prove they have been continuously resident.
The right of permanent residence may be achieved earlier such as where the person retires at pension age or due to accidental, occupational injury or disease. In this case, the resident’s family members will enjoy the same rights.
Citizens of EU states enjoy equality with nationals of the host state. The general principles of EU law on equality, recognition of qualifications provision and other EU rights apply.
EU citizens qualifying for the right of residence and members of his family benefit from equal treatment with host country nationals in the areas covered by the treaty.
Host states are not required prior to the acquisition of the permanent right of residence to grant maintenance aid for studies including vocational training in the form of grants and loans. Family members irrespective of their nationalities are entitled to engage in economic activity on an employed or self-employed basis.
EU citizens or family members may be expelled from the host state on grounds of public policy, security or health. An expulsion decision must not be made on economic grounds.
Measures affecting freedom of movement of residents must comply with proportionality principles and be based exclusively on the personal conduct of the individual. The conduct must represent a sufficiently serious and present threat that affects the fundamental interests of the state before the above justification may be invoked.
Previous criminal convictions do not automatically justify expulsion. The mere fact that the entry documents used by the individual concerned have expired does not constitute grounds for such a measure.
Before taking an expulsion decision states must assess a number of factors such as the period for which the person concerned has been resident, his or her age, degree of integration and family situation in the host state, as well as links with the country of origin. Exceptionally for overriding considerations of public security. an expulsion order can be served on the Union citizen if he has resided in the host country for less than 10 years or if he is a minor.
A person concerned by a decision refusing leave to enter or reside in a state must be notified of the decision and the conditions, enabling him to understand its content and effect. The grounds for the decision must be given and the person must be informed of the appeal procedure available to him. Except in an emergency, persons subject to such decisions must be allowed at least 1 month in which to leave the state.
Lifelong expulsion orders cannot be issued under any circumstances. Persons concerned by expulsion orders can apply to have their position reviewed after three years. The directive makes provisions for procedural safeguards. The person concerned has access to judicial review and where appropriate to administrative review in the host state.
States may adopt measures to refuse, terminate, or withdraw rights conferred by the directive in the case of abuse of rights or fraud, such as a marriage of convenience. States may apply a more favourable arrangement.