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Let's zoom in..Directive 2004/38/EC, Article 3(2) wrote:2. Without prejudice to any right to free movement and residence the persons concerned may have
in their own right, the host Member State shall, in accordance with its national legislation, facilitate
entry and residence for the following persons:
(a) any other family members, irrespective of their nationality, not falling under the definition in
point 2 of Article 2 who, in the country from which they have come, are dependants or
members of the household of the Union citizen having the primary right of residence, or
where serious health grounds strictly require the personal care of the family member by the
Union citizen;
.are dependants or members of the household
These guidelines seem to insinuate that at least a degree of dependency on the Union citizen is required, by a non-EU national family member of the Union citizen, who was a member of the household of the Union citizen in the country from which they have come.MEMO/09/311 wrote: 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.
I think thats just the memo being wrong and not the actual guidelines.For members of the household of the Union citizen, these guidelines cause confusion to an area of the Directive which is already quite clear. Why?
Surley it was supposed to be:When can a member of the household be considered "dependent"?
This is just for other dependent family members so the "or" in the directive is still intact.2.1.4. Dependent family members
According to the case-law of the Court, the status of ‘dependent’ family member is the result of a factual situation characterised by the fact that material support for that family member is provided by the EU citizen or by his spouse/partner. The status of dependent family members does not presuppose a right to maintenance. There is no need to examine whether the family members concerned would in theory be able to support themselves, for example by taking up paid employment.
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 (i.e. not in the host Member State where the EU citizen resides). In its judgments on the concept of dependency, the Court did not refer to any level of standard of living for determining the need for financial support by 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. Evidence may be adduced by any appropriate means, as confirmed by the Court . Where the family members concerned are able to provide evidence of their dependency by means other than a certifying document issued by the relevant authority of the country of origin or the country from which the family members are arriving, the host Member State may not refuse to recognise their rights. However, a mere undertaking from the EU citizen to support the family member concerned is not sufficient in itself to establish the existence of dependence.
In accordance with Article 3(2), Member States have a certain degree of discretion in laying down criteria to be taken into account when deciding whether to grant the rights under the Directive to "other dependent family members". However, Member States do not enjoy unrestricted liberty in laying down such criteria. In order to maintain the unity of the family in a broad sense, the national legislation must provide for a careful examination of the relevant personal circumstances of the applicants concerned, taking into consideration their relationship with the EU citizen or any other circumstances, such as their financial or physical dependence, as stipulated in Recital 6.
Any negative decision is subject to all the material and procedural safeguards of the Directive. It must be fully justified in writing and open to appeal.
Good enough, HO website is still clear on this issue. It clearly states that there is no dependency test, where a Non-EU citizen has resided under the same roof with the EU sponsor before and after coming to UK!benifa wrote:Let's zoom in..Directive 2004/38/EC, Article 3(2) wrote:2. Without prejudice to any right to free movement and residence the persons concerned may have
in their own right, the host Member State shall, in accordance with its national legislation, facilitate
entry and residence for the following persons:
(a) any other family members, irrespective of their nationality, not falling under the definition in
point 2 of Article 2 who, in the country from which they have come, are dependants or
members of the household of the Union citizen having the primary right of residence, or
where serious health grounds strictly require the personal care of the family member by the
Union citizen;
.are dependants or members of the household
So, members of the household of the Union citizen are not required to be also dependent on the Union citizen.
However..
These guidelines seem to insinuate that at least a degree of dependency on the Union citizen is required, by a non-EU national family member of the Union citizen, who was a member of the household of the Union citizen in the country from which they have come.MEMO/09/311 wrote: 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.
For members of the household of the Union citizen, these guidelines cause confusion to an area of the Directive which is already quite clear. Why?
Residence cards not issued under the Directive can exempt the holder from the visa requirement under Schengen rules .2.2. Entry and residence of third country family members
2.2.1. Entry visas
:
Residence cards issued under Article 10 of the Directive to a family member of an EU citizen residing in the host Member State, including those issued by other Member States, exempt their holders from the visa requirement when they travel together with the EU citizen or join him/her in the host Member State.
Residence cards not issued under the Directive can exempt the holder from the visa requirement under Schengen rules .
Actually if you read the Schengen rules carefully, it talks about no visa being needed if somebody has a residence card issued by "a member state".86ti wrote:Do Schengen rules have anything to say about non-Schengen residence permits? I do not think so. This point is very clear in my opinion.acme4242 wrote:Residence cards not issued under the Directive can exempt the holder from the visa requirement under Schengen rules.
I think the definition of 'residence permit' in the Schengen Acquis is quite clear. The UK and Ireland do not participate in the immigration related provisions of the acquis so I would think that 'contracting party' does not include them.Directive/2004/38/EC wrote:Actually if you read the Schengen rules carefully, it talks about no visa being needed if somebody has a residence card issued by "a member state".86ti wrote:Do Schengen rules have anything to say about non-Schengen residence permits? I do not think so. This point is very clear in my opinion.acme4242 wrote:Residence cards not issued under the Directive can exempt the holder from the visa requirement under Schengen rules.
It is a bit unclear what is meant by "a member state" here. Normally that means any EU member state (including UK Ireland Romania and Bulgaria). You could claim it means only a participant in the Schengen agreement, but it certainly does not say that anywhere.
Article 21(1) therein appears to be quite explicit too.Schengen Acquis wrote:Residence permit shall mean an authorisation of whatever type issued by a contracting party which grants right of residence within its territory. This definition shall not include temporary permission to reside in the territory of a contracting party for the purposes of processing an application for asylum or a residence permit;
Schengen Acquis, Article 21(1) wrote:Aliens who hold valid residence permits issued by one of the contracting parties may, on the basis of that permit and a valid travel document, move freely for up to three months within the territories of the other contracting parties, provided that they fulfill the entry conditions referred to in Article 5(1)(a), (c) and (e) and are not on the national list of alerts of the contracting party concerned.