How to apply for EEA resident permit under EU law in Germany

[JuniorG]

Hello everyone,

Wondering if you could please help? I have been enquiring for a long while now about bringing my family over from Dominican Republic to join me in Europe under the Directive/2004/38/EC – See links to my previous posts below:-

http://www.immigrationboards.com/viewto ... highlight=

http://www.immigrationboards.com/viewto ... highlight=

My family is now with me in Germany. They applied for and were granted visit visas (Schengen Visas) for three months to come to visit me in Germany (see first link above). Now I would like to apply for Residence Permits for them so that they can stay here with me (or at least so that they have the option to go back home and come back whenever they want without having to apply for visas every time!)

My question is, can someone here (anyone that may have applied for this previously or know the process) tell me what exactly I need to do to apply for a residence permit in Germany?

My plan was to go to my local City Hall (Einwohnermeldeamt, where I first applied for the Verpflichtungserklärung) and apply for it there.

Can you please break down for me (maybe from first-hand experience!) what I will need to make the application and what I should know before applying for it?

My plan sounded very simple and straight forward but now that my family is here and I am going to do it for real, I am getting a little worried about what documents they may ask or what evidence they will require!

As always, any advice/suggestions are always appreciated.

Thanks in advance

Junior

[86ti]

Now I would like to apply for Residence Permits for them so that they can stay here with me (or at least so that they have the option to go back home and come back whenever they want without having to apply for visas every time!)

It's a residence card ('Aufenthaltskarte') what you want but it is not a carte blanche for visa free travel. They would have to stay at least six months per year with you.

[Wanderer]

Are they dependent on you?

[JuniorG]

Hi 86ti,
Cool, got it, a Aufenthaltskarte. By "travelling whenever they want" I was thinking about those lines as well = they could stay 6 months or so here, go back to Dom. Rep. when the weather gets a bit chilly here and come back after (without having to re-apply for visas, as I believe the Aufenthaltskarte is issued for 5 years, or I am wrong?)

Hi Wanderer,
Yes, they both (my mum and brother) depend on me

[JuniorG]

Hello guys,

Any suggestions?

My plan is to go to my local City Hall (Einwohnermeldeamt) and take the following with me:-
My passport and residence permit
My families’ passports (with visit visas)
All our birth certificates
My rent contract
My employment contract and couple of payslips
Couple of bank statements

I am also taking couple of money transfer receipts to show that I have frequently sent them money and that they depend on me.

Do you guys think this will be sufficient or should I take something else with me? And if so what?

Thanks

[86ti]

The city hall may have a web page with details.

In principle you should not need the payslips or the bank statements only the employment contract but you never know. I do not see any reason for the rent contract. They may also ask for proof of health insurance. Is your family already insured either through your own insurance or a private one? The proof for the financial support of your family may required a formal legal act, maybe through a notary public (I do not know).

If you can read German you may find answers to your questions here http://www.info4alien.de/cgi-bin/forum/ ... i?board=EU

[JuniorG]

Hi 86ti,

The city hall may have a web page with details

I have tried looking (my German is not very good) but haven't found anything useful.

Is your family already insured either through your own insurance or a private one?

Yes, I have bought private insurance for them

Thanks for the link. I am going through all the posts (translating them with Google) and hopefully will find something.

Thanks again

[Obie]

Junior, i think the document you have provided are more than sufficient. I hope you have successfully got the documents translated.

The most they could do, is ask you to supply further documentation, which is highly unlikely considering the amount of evidence you have provided so far.

If you look at this link, try and google it, you will see the requirements are not that extensive.

Although there are lots of things the German, purposefully refused to transpose into their law, for very dubious reasons.

The only slight difficulty you will encounter, is if your brother is Over 21, as Germany did not make any provision for Article 3 Family member. If that is the case, prepare for a bit of fight with them, but i think you will prevail in the end

[Ben]

No health insurance required as OP is employed in Germany.

[Wanderer]

I think the problem is the Germans, if it's not in their National Law, it's not recognised in EU law to them either, witness unmarried partners, German National Immigration Law does not allow unmarried partners, thereby they cannot allow it under EU law. I dunno about German Immigration Law with regard to families, but I suggest the OP looks there first, see what's permitted.

[86ti]

I think the problem is the Germans, if it's not in their National Law, it's not recognised in EU law to them either, witness unmarried partners, German National Immigration Law does not allow unmarried partners, thereby they cannot allow it under EU law.

It's all about a dependent mother and brother. The Germans do recognize that in their law.

[Majeztic]

It's a residence card ('Aufenthaltskarte') what you want but it is not a carte blanche for visa free travel. They would have to stay at least six months per year with you.

But how would they know how long they have been outside Germany? they dont stamp on the passport anyway.I also thought u had to come every 6 months,but not staying 6 months in a year.


Junior:
They will get the residence card or permit ( its not really a card.but made out of paper,very inconvienent actually) in maybe only 3 days.I got it in 3 days.They didnt ask me for alot,but ur situation may be different,because its not a spouse but mother and brother.

[86ti]

It's a residence card ('Aufenthaltskarte') what you want but it is not a carte blanche for visa free travel. They would have to stay at least six months per year with you.

But how would they know how long they have been outside Germany? they dont stamp on the passport anyway

No, they do not know but it is the duty of the residence card holder to report any change in circumstances. I think random checks can also be carried out.

[JuniorG]

Hi guys,
Thank you for your responses so far. I will go there tomorrow morning with all the documents I have (as listed above) and hope that it will be sufficient for them. I will keep you updated on progress

[JuniorG]

Hi guys,

Just thought I'd give you an update on how things are going...

I went last week to apply for the residence cards for my mum and brother but I was asked to get them registered with an address first (Anmeldung) as this is a requirement before they can be issued residence.

I went and did the anmeldung for them last week and this morning I went back for the residence again. They issued the residence for my mum right then and there! no problem! All they asked for was:-

The anmeldung from my mum
Her passport
A passport photo from my mum
Prove of health insurance for my mum
My passport
My anmeldung
My last payslip

They didn't need any other document. They printed the card while we waited. Very efficient!

However, for my brother it was a big no no!! They told me that the law (they read me a paragraph from a big book they had) did not provide for my brother. The law covered my parents and grandparents, my spouse and children, her children, her parents and her grandparents! But no other family member!

The office worker told me that he works in the European section and that this is the European law. I tried to explain about the EU Directive 38/EU/2004 but I guess it is called something else here as he did not know about it. Or it could be, as Obie posted above, that Germany does not make any provision in their interpretation of the Directive for 'Article 3 Family Member'

The only slight difficulty you will encounter, is if your brother is Over 21, as Germany did not make any provision for Article 3 Family member. If that is the case, prepare for a bit of fight with them, but i think you will prevail in the end

What do you guys think? Should I pursue my brother's case further or do you think there is no chance for him to get the residence?

[86ti]

The office worker told me that he works in the European section and that this is the European law. I tried to explain about the EU Directive 38/EU/2004 but I guess it is called something else here as he did not know about it.

A directive would be called 'Richtlinie', the national implementation is called 'Freizügigkeitsgesetz/EU' but it covers only family members as explained to you. You would probably have to take a look into German national law ('Aufenthaltsgesetz', not sure about translation to English) how you can get residence for your brother.

[Ben]

The anmeldung from my mum
Her passport
A passport photo from my mum
Prove of health insurance for my mum
My passport
My anmeldung
My last payslip

Health insurance is not required since you are employed, but anyway..

However, for my brother it was a big no no!! They told me that the law (they read me a paragraph from a big book they had) did not provide for my brother. The law covered my parents and grandparents, my spouse and children, her children, her parents and her grandparents! But no other family member!

They are referring to Article 2 of Directive 2004/38/EC but seem to be ignoring Article 3.

What do you guys think? Should I pursue my brother's case further or do you think there is no chance for him to get the residence?

Quite simply, if your brother is a person described in Article 3 of the Directive, Germany is required to facility entry and residence for him, treating him as if he were a person described in Article 2.

Beneficiaries

1. This Directive shall apply to all Union citizens who move to or reside in a Member State other
than that of which they are a national, and to their family members as defined in point 2 of Article 2
who accompany or join them.

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;
(b) the partner with whom the Union citizen has a durable relationship, duly attested.
The host Member State shall undertake an extensive examination of the personal circumstances and
shall justify any denial of entry or residence to these people.

The office worker told me that he works in the European section and that this is the European law. I tried to explain about the EU Directive 38/EU/2004 but I guess it is called something else here as he did not know about it.

A directive would be called 'Richtlinie', the national implementation is called 'Freizügigkeitsgesetz/EU' but it covers only family members as explained to you.

Is Germany incorrectly transposing the Directive? Solvit.

You would probably have to take a look into German national law ('Aufenthaltsgesetz', not sure about translation to English) how you can get residence for your brother.

If the brother as a person described in Article 3 of Directive 2004/38/EC, Germany is required to facility entry and residence for him, in accordance with the Directive.

[Obie]

I Junior, congratulations on the success of your mums case, and sorry to hear about your brother's predicament. As stated earlier, they will try and stop him from having his residency, which he is supposed to get if he meets the conditions. The directive is an instruction, which gives memberstate direction on how to implement things, it supersedes any regulation that is derived from it.

Therefore, the Germans cannot just decide to omit certain provisions, and say this is the law. It is totally unacceptable.

I think you should pursue it in Germany to a successful conclusion. It won't be easy, but there is every possibility of success.

The rules made provision for facilitation of entry for other family member, who do not fit the critieria for Article 2, but are dependent or member of the same household, for which the EEA national has primary authority.

How old is your brother, and did you show them evidence that he is dependent on you?

Contact solvit, citizen sign post, write to the commission etc.

It is like one of those situation, wherein you were charged a visa fee which was later confirmed to be illegal.

Perhaps, you might want to contact a solicitor in Germany, if they are any good.

They cannot say they don't know the directive as the law which gives rise to your rights, is derived from the directive.

Below is the German Version of the directive. Perhaps, you should print and sent it to the Ministry .

http://eur-lex.europa.eu/LexUriServ/Lex ... 123:DE:PDF

Therfore it is not your fault that Germany deliberately omitted mandatory provisions on the directive.

[86ti]

Is Germany incorrectly transposing the Directive? Solvit.

You would probably have to take a look into German national law ('Aufenthaltsgesetz', not sure about translation to English) how you can get residence for your brother.

If the brother as a person described in Article 3 of Directive 2004/38/EC, Germany is required to facility entry and residence for him, in accordance with the Directive.

And Article 3.1 says 'in accordance with its national legislation'.

[Ben]

And Article 3.1 says 'in accordance with its national legislation'.

Article 3(2) states, "..the host Member State shall, in accordance with its national legislation, facilitate
entry and residence for the following persons:.."

The national legislation referred to is that which is implemented following transposition of the Directive.

[JuniorG]

Wow guys! Thanks for all the replies!
To be fair, the guy I spoke to was very nice and asked me (after I tried to explain about the directive) to print it and bring it back to him so he can have a look at it. He told me that he couldn't promise anything (he has to follow his guidelines) but that he can have a look at what can be done.
I will take a copy of it for him tomorrow and see what he says!

[86ti]

And Article 3.1 says 'in accordance with its national legislation'.

Article 3(2) states, "..the host Member State shall, in accordance with its national legislation, facilitate
entry and residence for the following persons:.."

The national legislation referred to is that which is implemented following transposition of the Directive.

But that doesn't preclude this particular part from written into the same law that also covers national legislation. That was my point. It makes some sense to cover it there. Hence my suggestion to look into the national law.

[86ti]

Wow guys! Thanks for all the replies!
To be fair, the guy I spoke to was very nice and asked me (after I tried to explain about the directive) to print it and bring it back to him so he can have a look at it. He told me that he couldn't promise anything (he has to follow his guidelines) but that he can have a look at what can be done.
I will take a copy of it for him tomorrow and see what he says!

Just one question. Where exactly did you get your mother's residence card? You mentioned the city hall last time but is this also the 'Ausländerbehörde'? Quite possible that you would have to get a residence permit for your brother from a different place.

[JuniorG]

Hello guys,

86ti, yes, I got the residence card from the 'Kommunale Auslaenderbehoerde'. This is the same place where we did the anmeldung. I think this is also the regional council hall.

I am a bit worried now! I read the directive in and out last night and could not find in it something explicitly mentioning brothers! (For some reason I was hoping to see somewhere in the directive something written in bold letters saying ‘BROTHERS COVERED'). I did see point 2 in article 3 where it states:-

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;

(b) the partner with whom the Union citizen has a durable relationship, duly attested.

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.

The part that worries me is (as already highlighted by Obie and 86ti above) is where it says 'in accordance with its national legislation'

According to the worker that saw me yesterday, my brother is not covered under their interpretation of the EU law. Does that mean that because their national law does not provide for extended relatives, then they are in their right to just ignore this point?

I mean, I can prove that my brother and me were members of the same household (requirement of point 2, article 3) and also that for the past two years he has been and still is dependant on me (also a requirement). I don’t know whether that will help though!

What do you guys think are my options? Should I try to get an immigration lawyer or do you see no point in it?

As always, thanks

[86ti]

The part that worries me is (as already highlighted by Obie and 86ti above) is where it says 'in accordance with its national legislation'

According to the worker that saw me yesterday, my brother is not covered under their interpretation of the EU law. Does that mean that because their national law does not provide for extended relatives, then they are in their right to just ignore this point?

The Directive certainly covers extended family members under the conditions outlined in Article 3 but allows member states to assess cases on the basis of national law. They can't just ignore this point but have to deal with it and argue a possible denial (see end of Article 3).