Citizens' Rights Directive

Last updated

Directive 2004/38/EC
European Union directive
Flag of Europe.svg
TitleDirective on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States
Made by European Parliament and Council
Made underArts 12, 18, 40, 44 and 52 TEC
Journal reference L158, pp. 77–123
History
Date made2004-04-29
Came into force2004-04-30
Implementation daterequired by 2006-04-29
Other legislation
Replacesdirectives 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
Amendsregulation (EEC) No 1612/68
Current legislation

The Citizens' Rights Directive 2004/38/EC (also sometimes called the "Free Movement Directive") sets out the conditions for the exercise of the right of free movement for citizens of the European Economic Area (EEA), which includes the member states of 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 multilateral sectoral agreement on free movement with the EU and its member states. [1]

Contents

It consolidated older regulations and directives, and extended the rights of unmarried couples. It gives EEA citizens 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. [2] This right also extends to close family members that are not EEA citizens.

Contents

The Directive contains the following chapters:

Scope

Pursuant to articles 4 and 5 of the directive, any EEA citizen can leave their own country and enter another EEA state without a visa by presenting a valid passport or national identity card. If an EEA citizen is unable to present a valid passport or national identity card at the border, they must nonetheless be afforded every reasonable opportunity to obtain the necessary documents within a reasonable period of time or corroborate or prove by other means that they are covered by the right of free movement.

The directive applies to any EEA citizen who is moving to and living in an EEA state other than their 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 their home country after staying in another EEA state, as defined in the case of Surinder Singh. [3] For dual citizens with two EEA nationalities, the directive can apply in any EEA state. Temporary limitations can be put 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:

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, they exercise 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:

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".

Status

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:

Permanent residence is acquired automatically after exercising treaty rights for 5 years, with absences of normally less than 6 months a year, a single absence less than 12 months in certain circumstances (birth, severe sickness, etc.), or longer for military services. [4] 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.

Implementation

Austria

In Austria, the directive is transposed into national law mainly via the Niederlassungs- und Aufenthaltsgesetz [5] (regarding residence) and the Fremdenpolizeigesetz [6] (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.

Germany

In Germany, the directive is transposed into national law via the Freizügigkeitsgesetz/EU  [ de ], [7] which could be translated as "Freedom of Movement Law/EU". 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.

Iceland, Liechtenstein and Norway

The EEA countries have had to implement this directive in full. [8] [9] In Norway this was implemented by changing the Alien Law (Norwegian: utlendingsloven), which entered into force on 1 Jan 2010.

Italy

In Italy the directive has been implemented into Italian legislation with Legislative Decree n. 30 February 6, 2007 [10] The applications are handled by the "Comune" of the city where the applicant takes his or her residence.

Ireland

In Ireland, the Directive is transposed into the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 [11] amended by SI 310 of 2008 [12] in reaction to the Metock case [13] and amended by SI 146 of 2011 allowing visa free entrance with a residence card issued by another EEA member state. [14]

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.

The Netherlands

Applications are submitted locally at the municipality (gemeente in Dutch) together with the mandatory registration of residence, but they are processed centrally at the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst, IND). There is a charge (€53 in 2015) 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. [15]

Sweden

In Sweden the directive has been implemented through changes in several laws, like the Alien Act (SFS 2005:716), and the Aliens Decree (SFS 2006:97). Until 2015 Sweden did not follow the directive fully, as the national identity card was not accepted when a Swedish citizen left Sweden for a non-Schengen EU member state, like the UK. The passport act (SFS 1978:302) required a passport. [16]

Switzerland

Switzerland is not part of the EU or EEA, but has bilateral agreements with the EU in several fields, including free movement of people. There is an agreement, which contains the same principles as the directive. [1] [17] This includes:

for citizens of EU and Switzerland in all these countries.

The freedom of movement between Switzerland and the EFTA countries is afforded by the EFTA convention. [18]

See also

Notes

  1. 1 2 "EUR-Lex - 22002A0430(01) - EN". Official Journal L 114, 30/04/2002 P. 0006 - 0072. Retrieved 1 January 2021.
  2. ↑ Article 7(1) of the Directive.
  3. ↑ 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". 7 July 1992. Retrieved 27 December 2008.
  4. ↑ Article 16(3) of the Directive.
  5. ↑ "Bundesrecht konsolidiert: Gesamte Rechtsvorschrift für Niederlassungs- und Aufenthaltsgesetz" (in German). Rechtsinformationssystem des Bundes (RIS). Retrieved 1 July 2011.
  6. ↑ "Bundesrecht konsolidiert: Gesamte Rechtsvorschrift für Fremdenpolizeigesetz 2005" (in German). Rechtsinformationssystem des Bundes (RIS). Retrieved 1 July 2011.
  7. ↑ "Gesetz über die allgemeine Freizügigkeit von Unionsbürgern (Freizügigkeitsgesetz/EU – FreizügG/EU)" (in German). 30 July 2006. Archived from the original on 6 May 2009. Retrieved 17 December 2008.
  8. ↑ 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, 8 May 2008, retrieved 1 January 2021
  9. ↑ https://www.efta.int/media/documents/legal-texts/eea/other-legal-documents/adopted-joint-committee-decisions/2007%20-%20English/158-2007.pdf [ bare URL PDF ]
  10. ↑ "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). 27 March 2007. Retrieved 7 February 2011.
  11. ↑ "S.I. No. 656/2006 – European Communities (Free Movement of Persons) (No. 2) Regulations 2006" (PDF). 1 January 2007. Retrieved 17 December 2008.
  12. ↑ "S.I. No. 310/2008 – European Communities (Free Movement of Persons) (Amendment) Regulations 2008" (PDF). 1 January 2008. Retrieved 15 April 2009.
  13. ↑ Case C‑127/081 "Judgment of the Court of 25 July 2008. High Court (Ireland) v Metock et al". 25 July 2008. Retrieved 12 January 2009.
  14. ↑ "S.I. No. 146/2011 – Immigration Act 2004 (Visas) Order 2011" (PDF). 28 March 2011. Retrieved 26 May 2011.
  15. ↑ Embassy of Netherlands page on 2004/38/EC
  16. ↑ Tatsiana Turgot. "Directive 2004/38/EC ... transposition" (PDF). Milieu Ltd.
  17. ↑ Agreement with the Swiss Federation: free movement of persons
  18. ↑ "Short Overview of the EFTA Convention" . Retrieved 29 November 2017.

Related Research Articles

<span class="mw-page-title-main">European Free Trade Association</span> Regional trade organization and free trade area

The European Free Trade Association (EFTA) is a regional trade organization and free trade area consisting of four European states: Iceland, Liechtenstein, Norway and Switzerland. The organization operates in parallel with the European Union (EU), and all four member states participate in the European Single Market and are part of the Schengen Area. They are not, however, party to the European Union Customs Union.

The freedom of movement for workers is a policy chapter of the acquis communautaire of the European Union. The free movement of workers means that nationals of any member state of the European Union can take up an employment in another member state on the same conditions as the nationals of that particular member state. In particular, no discrimination based on nationality is allowed. It is part of the free movement of persons and one of the four economic freedoms: free movement of goods, services, labour and capital. Article 45 TFEU states that:

  1. Freedom of movement for workers shall be secured within the Community.
  2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
  3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
  4. The provisions of this article shall not apply to employment in the public service.

A European Economic Area Family Permit was an immigration document that assisted the holder to enter the United Kingdom as a family member of a citizen of a contracting state to the European Economic Area agreement or a Swiss citizen. They were issued by the UK immigration authorities under the Immigration Regulations 2006 (UK).

<span class="mw-page-title-main">Residence card of a family member of a Union citizen</span>

European Economic Area (EEA) citizens have the right of free movement and residence throughout the EEA. This right also extends to certain family members, even if they are not EEA citizens. A Residence card of a family member of a Union citizen is issued to the family member to confirm this right of residence. The holder of a valid Residence Card is entitled to use this document in lieu of an entry visa for entry to all EEA member states. There is not a unified format for this card throughout the EU.

<span class="mw-page-title-main">Norwegian passport</span> Passport of the Kingdom of Norway issued to Norwegian citizens

A Norwegian passport is the passport issued to nationals of Norway for the purpose of international travel. Beside serving as proof of Norwegian citizenship, they facilitate the process of securing assistance from Norwegian consular officials abroad.

<span class="mw-page-title-main">Liechtenstein passport</span> Passport of the Principality of Liechtenstein

Liechtenstein passports are issued to nationals of Liechtenstein for the purpose of international travel. Beside serving as proof of Liechtenstein citizenship, they facilitate the process of securing assistance from Liechtenstein consular officials abroad.

<span class="mw-page-title-main">Icelandic passport</span> Passport for Icelands citizens

Icelandic passports are issued to citizens of Iceland for the purpose of international travel. Beside serving as proof of Icelandic citizenship, they facilitate the process of securing assistance from Icelandic consular officials abroad. As of 2022, 91% of Icelandic citizens possess an Icelandic passport. It is one of three official documents issued by the Icelandic government, the others being the Icelandic identity card and the Icelandic driving licence.

Stamp 4 refers to the stamp number, or immigration status, given to an individual with permission to reside in Ireland. It is issued to people on work visas/work authorisations, to the spouse of an Irish citizen, to the spouse of an EU citizen, to refugees, to people with Irish Born Child residency and those with long-term residency status. Once a person has been granted Stamp 4 status by the Irish Department of Justice, he or she is to report to their local Garda National Immigration Bureau in order to receive the physical card, or "Certificate of Registration". The card shows the holder's Stamp 4 status, as well as their photograph and other personal details.

<span class="mw-page-title-main">Bulgarian nationality law</span> History and regulations of Bulgarian citizenship

Bulgarian nationality law is governed by the Constitution of Bulgaria of 1991 and the citizenship law of 1999.

<span class="mw-page-title-main">Immigration (European Economic Area) Regulations 2006</span> United Kingdom legislation

The Immigration Regulations 2006, amended by SI 2009/1117, SI 2011/1247 and SI 2015/694 and which have now been mostly repealed and superseded by the Immigration Regulations 2016, was a piece of British legislation which implemented the right of free movement of European Economic Area (EEA) nationals and their family members in the United Kingdom. It is based on Directive 2004/38/EC. It allows EEA citizens and their family members to live and work in the UK without explicit permission. Although Swiss citizens are covered by a separate bilateral agreement; they are treated basically the same as EEA nationals. Family members may need a special entry clearance to enter the UK.

Metock v Minister for Justice, Equality and Law Reform (2008) C-127/08 is a European Union law case, significant in Ireland and Denmark, on the Citizens Rights Directive and family unification rules for migrant citizens. Citizenship of the European Union was established by Article 20 of the Treaty on the functioning of the European Union (TFEU) and the Citizenship Directive 2004/38 elaborates the right of Union citizens and their family members to move and reside freely in the territory of a member state, consolidating previous Directives dealing with the right to move and reside within the European Community (EC).

<span class="mw-page-title-main">Visa policy of Ireland</span> Policy on permits required to enter Ireland

The visa policy of Ireland is set by the Government of Ireland and determines visa requirements for foreign citizens. If someone other than a European Union, European Economic Area, Common Travel Area or Swiss citizen seeks entry to Ireland, they must be a national of a visa-exempt country or have a valid Irish visa issued by one of the Irish diplomatic missions around the world.

<span class="mw-page-title-main">Liechtenstein identity card</span> National identity card of Liechtenstein

The Liechtenstein identity card is issued to Liechtenstein citizens by the Immigration and Passport Office in Vaduz. The card costs CHF65 for adults aged 18 or over and is valid for 10 years. For children, the card costs CHF30 and has a validity of 3 years.

<span class="mw-page-title-main">National identity cards in the European Economic Area</span> Identity cards issued by member states of the European Economic Area

National identity cards are issued to their citizens by the governments of most European Economic Area (EEA) member states, the exceptions are Denmark and Ireland. Ireland however issues a passport card which is a valid document in the EEA and Switzerland. Denmark issues simpler identity cards that are not valid as travel documents. From 2 August 2021, new identity cards are harmonized as a common identity card model replaced the various formats already in use. There are approximately 200 million national identity cards in use in the EU/EEA, including 53 million of the new EU-standard cards. They are compulsory in 15 EEA/EFTA countries, voluntary in 11 countries and in 5 countries they are semi-compulsory. Where the card is compulsory, in some member countries it is required to be carried at all times, while in other countries the mere possession of the card is sufficient.

R v Immigration Appeal Tribunal and Surinder Singh [1992] 3 CMLR 358 is a UK immigration law and EU law case involving the right of entry and residence into a nation state.

<span class="mw-page-title-main">Norwegian identity card</span> National identity card of Norway

The Norwegian identity card, commonly referred to as the national identity card in Norway, is a non-compulsory biometric identity document issued since 30 November 2020. It is one of two official identity documents issued by the Norwegian Police Service, the other being the Norwegian passport. It is only issued to Norwegian citizens, and may indicate citizenship so that it can be used as a travel document facilitating freedom of movement within the European Free Trade Association and the European Economic Area. For travel within the Nordic countries no identity documentation is legally required for Nordic citizens due to the Nordic Passport Union.

<span class="mw-page-title-main">Passports of the EFTA member states</span>

Passports of the EFTA member states are passports issued by the European Free Trade Association (EFTA) member states Iceland, Liechtenstein, Norway and Switzerland. EFTA is in this article used as a common name for these countries.

<span class="mw-page-title-main">Immigration (European Economic Area) Regulations 2016</span> United Kingdom legislation

The Immigration Regulations 2016, or EEA Regulations 2016 for short, constituted the law that implemented the right of free movement of European Economic Area (EEA) nationals and their family members in the United Kingdom. The regulations were repealed by the Immigration and Social Security Co-ordination Act 2020 on 31 December 2020, at the end of the transition period.

<span class="mw-page-title-main">Passports in Europe</span> Overview of passports issued in European countries

Passports in Europe are issued by each state individually, e.g. the Netherlands or United Kingdom. In general, passports issued in Europe either grant the holder the right of freedom of movement within the European Economic Area, to those that don't. The majority of European states are members of the European Union, and therefore issue EU passports.

In EU law, reverse discrimination occurs when the national law of a member state of the European Union provides for less favourable treatment of its citizens or domestic products than other EU citizens/goods under EU law. Since the creation of the Single Market, the right of EU citizens to move freely within the EU with their families. The right to free movement was codified in EU Directive 2004/38/EC which applies across the whole EEA. However, reverse discrimination is permitted in EU law because of the legal principle of subsidiarity, i.e. EU law is not applicable in situations purely internal to one member state. This rule of purely internal situation does not apply if the EU citizens can provide a cross-border link, e.g. by travel or by holding dual EU citizenship. EU citizens and their families have an automatic right of entry and residence in all EU countries except their own, with exceptions created by a cross-EU state border link. For example, an Irish citizen living in Germany with his family before returning to Ireland can apply for EU family rights. This is referred to as the Surinder Singh route. The cross-border dimension has been the focus of many court cases in recent years, from McCarthy to Zambrano.

References

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.