EU court clarifies rules on residence for third-country nationals who are family members of EU citizens
Rules on the rights of residence of non-European Union nationals who are family members of EU citizens have been clarified in findings announced on March 12 2014 by the European Court of Jutice.
The court made the announcement regarding a number of cases brought before it.
The cases relate largely to a 2004 EU directive that grants EU citizens and their family members the right “to move and reside freely” within the territory of the EU member states.
The court said that the council of state of the Netherlands had made two separate requests to it for a preliminary ruling on four cases concerning the refusal of Dutch authorities to grant a right of residence to a third-country national (meaning, non-EU citizen) who is a famly member of an EU citizen of Netherlands nationality.
The first case concerned a refusal to grant a right of residence where the EU citizen returns to the member state of which he is a national after short periods of residence in another member state with the family member in question.
In 2006, Mr O, as he is described in the court statement, a Nigerian national, married a Netherlands national and from 2007 to April 2010 he lived in Spain.
During that period, Mr O.’s wife resided for two months with her husband in Spain and regularly spent time with Mr O. in the form of holidays in Spain.
Mr B., a Moroccan national, lived from December 2002 with his partner who has Netherlands nationality.
In 2005, Mr B. moved to Belgium and lived in an apartment rented by his partner. His partner resided with Mr B. in Belgium every weekend. In April 2007, Mr B. returned to Morocco and in July 2007 Mr B. married the Netherlands national in question.
As Mr O. and Mr B. were family members of EU citizens, the Dutch court asked the EU court whether EU law granted such third-country nationals a right of residence in the member state of which the citizens in question are nationals.
The European Court said that the relevant article and directive “do not confer any autonomous right on third-country nationals.
“Any rights conferred on third-country nationals are rights derived from the exercise of freedom of movement by an EU citizen.”
The court found that the 2004 directive does not confer any derived right of residence on third-country nationals who are family members of an EU citizen residing in the member state of which he is a national.
The directive “applies only where a citizen moves or resides in a member state other than that of which he is a national.”
On the question as to whether the relevant article of EU law granted such a derived right of residence, the European Court said that a refusal to allow a derived right of residence for a family member of an EU citizen who is a third-country national, “may interfere with the EU citizen’s freedom of movement under that provision.”
“An EU citizen may be discouraged from leaving his member state of origin because he is uncertain whether he will be able to continue, on returning to that member state, a family life which he will have created or strengthened in another member state”
However, the European Court said, such an obstacle will arise only where the residence in the host member state has been genuine, meaning that it satisfies the requirements of the 2004 EU directive relating to a right of residence for a period of longer than three months.
The court said that a derived right of residence is allowed for the family member who is a third-country national.
“Even though Directive 2004/38 does not cover the return of the EU citizen to the member state of which he is a national, it should be applied by analogy given that in both cases it is the EU citizen who is the reference point for the grant of a derived right of residence to a third-country national who is a member of his family.”
On the question whether the cumulative effect of various short periods of residence in the host member state may create a derived right of residence for a family member of an EU citizen who is a third-country national on the citizen’s return to his member state of origin, the court said that “only a period of residence satisfying the conditions of Directive 2004/38 relating to a right of residence for a period of longer than three months will give rise to such a right of residence”.
Even when considered together, short periods of residence (such as weekends or holidays spent in a member state other than that of which the citizen is a national) do not satisfy those conditions, the court said.
The court said that it noted in addition that Mr B. Had acquired the status of family member of an EU citizen after his partner’s residence in the host member state.
A third-country national, who has not had, at least during part of his residence in the host member state, the status of family member of an EU citizen, is not entitled to a derived right of residence in that member state in terms of the 2004 directive, the court said.
“Accordingly, that third-country national is also unable to rely on Article 21 TFEU for the grant of a derived right of residence on the return of the EU citizen to the member state of which he is a national.”
The court said it ruled that where an EU citizen has, “pursuant to and in conformity with the provisions of Directive 2004/38” relating to a right of residence for a period of longer than three months, created or strengthened a family life with a third-country national during genuine residence in a member state other than that of which he is a national, the provisions of that directive apply by analogy where that EU citizen returns, with the family member in question, to his member state of origin.
A separate case put the European Court of Justice was the refusal of Netherlands’ authorities to grant a right of residence to a family member of an EU citizen of Netherlands nationality.
Howeve, unlike the first case, the citizens in question had not resided with a family member in a member state other than that of which they are nationals.
The people involved in this case were, variously, Ukrainian and Peruvian nationals.
Mrs S, the Ukrainian, claimed a right of residence with her son-in-law who is a Netherlands national.
“Ms S. submits that she takes care of her grandson. Her son-in-law resides in the Netherlands but travels to Belgium at least once a week in the course of his work for an employer established in the Netherlands,” the court said.
Ms G., a Peruvian national, married a Netherlands national in 2009. The Dutch citizen resides in the
Netherlands but works for a company established in Belgium. He travels daily between the Netherlands and Belgium for his work.
The Dutch court asked the EU court whether EU law confers a derived right of residence on a third-country national who is a family member of an EU citizen where that citizen resides in the member state of which he is a national but regularly travels to another member state in the course of his professional activities.
The EU court said that in these cases, the EU citizens fall within the scope of freedom of movement for workers guaranteed by EU law.
Any EU citizen who, under an employment contract, works in a member state other than that of their place of residence falls within the scope of this article of the law.
The Court said that the “effectiveness” of the right to freedom of movement for workers may require that a derived right of residence be granted under the law to a third-country national who is a family member of the worker – an EU citizen – in the member state of which the EU citizen is a national.
It is therefore for the referring court to determine whether, in each of the situations at issue, the grant of a derived right of residence to the third-country national in question who is a family member of an EU citizen is necessary to guarantee the citizen’s effective exercise of the rights guaranteed by EU law, the European Court said.
The court said that the fact that the third-country national in question takes care of the EU citizens’ child may be a relevant factor to be taken into account when examining whether the refusal to grant a right of residence to that third-country national may discourage the EU citizen from effectively exercising his rights to freedom of movement.
“However, the mere fact that it might appear desirable that the child be cared for by the third-country national who is the direct relative in the ascending line of the EU citizen’s spouse is not sufficient in itself to constitute such a dissuasive effect,” the European court said.
It said that the article of EU law “confers a derived right of residence on a third-country national who is the family member of an EU citizen in the member state of which that citizen is a national, where the citizen resides in that member state but regularly travels to another member state as a worker within the meaning of that provision, if the refusal to grant such a right of residence discourages the worker from effectively exercising his rights under Article 45 TFEU, which it is for the referring court to determine”.
(Archive photo of members of the Court of Justice of the EU: EC Audiovisual Service)
