German citizen moving to Germany with non EEU spouse

[ZANDER]

Hello everyone.

I have a German passport, but never lived in Germany. My partner has a Brazilian passport. We are married and currently live in the UK. She has a residence card stamped in her passport so she can live and work here legally.

We started thinking about maybe moving to Germany in the future and I wonder if anyone has any information and experiences to share.

If we do decide to move to Germany I assume we will have to satisfy german immigration laws and not EU laws is that right? Does anyone know what the requirements are?

Do I need to have job offer / proof of income to be able to bring her with me?

Will she be able to work there?

Does the fact that we have been living legally together in the UK make any difference?

Will I, being 29 years old and never having resided in Germany, have to do Social/Military Service (Zivildienst/Wehrdienst)?

Any advice, experiences, links etc will be greatly appreciated.

Many thanks,

Zander

[86ti]

If we do decide to move to Germany I assume we will have to satisfy german immigration laws and not EU laws is that right?

EU laws should be accessible to you if you have been exercising your treaty rights in the UK as worker or self-employed.

Will I, being 29 years old and never having resided in Germany, have to do Social/Military Service (Zivildienst/Wehrdienst)?

I am not sure but I think every citizen would have to do that unless not fit enough or there would be an age limit.

[86ti]

BTW, this is how Denmark sees the situation at the moment. Of course, you would have to check for Germany.

[Prawo]

Your wife should have an EEA family permit as mentioned in art. 10 of directive 2004/38/EC.

This should not be a stamp in her passport but a separate document, as explained in recent published guidelines. Look at par. 2.2.2.

However, even without these documents, proof of prior stay in the UK and marriage are enough to go to Germany and have her apply for residence based on your EU rights.

A tip: do apply for yourself for a permanent EU residence card, as you live longer than five years in the UK.
Your wife can do the same if she lives 5 years with you in the UK.

Do you know the German forum info4alien?

[sebhoff]

Hi Zander,

I have a German passport, but never lived in Germany. My partner has a Brazilian passport. We are married and currently live in the UK. She has a residence card stamped in her passport so she can live and work here legally.

....

If we do decide to move to Germany I assume we will have to satisfy german immigration laws and not EU laws is that right? Does anyone know what the requirements are?

We are in a very similar situation - a German (who has never lived in Germany) with Malaysian wife (and two children), currently in the UK. We will be moving to Germany in 4 weeks time.

We tried to find out more about the question whether we can move to Germany under EU law - and it wasn't easy. We received very different responses from different people/authorities! You can read more about this here: http://www.info4alien.de/cgi-bin/forum/ ... 1240953106 (requires registration first).

Do I need to have job offer / proof of income to be able to bring her with me?

If you want to use the European route, you'll need to be a qualified person just as if you were a citizen of another member state who wants to move to Germany.

Will she be able to work there?

Yes.

Unlike in the UK, having a foreign (non-EEA) spouse join you is free. So if you fulfil certain requirements, the difference isn't that big. One main point is that your partner will have to pass a German test before being granted a visa to join you. Also, getting this visa can take time - while a visa via European law does not involve authorities in Germany (Auslaenderbehoerde), your application has to travel quite a bit before it is decided if you go the national route.

Some discussion about the different advantages of the two ways of applying can be found here: http://www.info4alien.de/cgi-bin/forum/ ... 1246385061.

There are other aspects that come into the equation - e.g. whether you have children or not.

I'm no expert on this - but if you think I can help further, just send me a PM. And I second Prawo's recommendation - have a look at info4alien - it's a brilliant resource of information, some straight from the horse's mouth!

[Prawo]

Need more information, directly from the European Commission?

You will find this "Guide on how to get the best out of Directive 2004/38/EC" very useful. Here is the German version.

Need another language version? Just change the two letter language code before .pdf in the url.



.

[Directive/2004/38/EC]

I have a German passport, but never lived in Germany. My partner has a Brazilian passport. We are married and currently live in the UK. She has a residence card stamped in her passport so she can live and work here legally.

Questions about you: what passport have you been using while in the UK? Have you been working?

You say your wife has a "residence card" stamped in her passport. What exact kind of residence card is it, and what does it say about EEA family?

[ZANDER]

Hi many thanks for all your replies.

We have been living in the UK for the past 20 months I have been using my German passport.

Yes I have been working. We are both registered as self employed and pay NI contributions and taxes.

The residence card that she has on her passport is an EEA family member (spouse) residence card and it is valid for 5 years.


Regards,

Zaner

I have a German passport, but never lived in Germany. My partner has a Brazilian passport. We are married and currently live in the UK. She has a residence card stamped in her passport so she can live and work here legally.

Questions about you: what passport have you been using while in the UK? Have you been working?

You say your wife has a "residence card" stamped in her passport. What exact kind of residence card is it, and what does it say about EEA family?

[Directive/2004/38/EC]

Zander,

Since you have been working in the UK, any move "back" to the country of your citizenship can be done on the basis of EU law. See http://eumovement.wordpress.com/2007/04 ... ional-law/

You could choose, if you wanted, to do it on the basis of German law, but I doubt this will be attractive.

I really enjoyed living in Germany.

[sebhoff]

Zander,

You could choose, if you wanted, to do it on the basis of German law, but I doubt this will be attractive.

Well - unlike in the UK, the difference doesn't really matter. Spouse visas are free, and as long as your partner has a sufficient command of German, these visas are easy to get.

In fact, there are even some advantages. For example, you get permanent residence after 3 years via the national route - instead of 5 years via the EU route.

We could have used European law - but in the end decided to go along with things and just entered on a normal German spouse visa. So far, we haven't regretted it. For example, it only took 10 minutes to get a 3-year residence permit...

sebhoff

[Wanderer]

What's ur other nationality? If u've taken another non-EU nationality it might be ur German nationality has been lost without u knowing. Germany does not normally allow dual-nationality.

[Ben]

Your wife should have an EEA family permit as mentioned in art. 10 of directive 2004/38/EC.

You mean a Residence Card, as referred to in Article 10, not an EEA Family Permit.

However, even without these documents, proof of prior stay in the UK and marriage are enough to go to Germany and have her apply for residence based on your EU rights.

Only if the German national has been engaged in economic activity in the UK.

[SteveHa]

I have a question regarding Germany. I was thinking about moving to Berlin within the next 12-18 months and I tried to get my hands on some information about the 401ks in Germany but that didn't go so well. Can anyone share some information on the topic? Maybe a comparison between Germany and the US? Thanks in advance.

[Prawo]

Your wife should have an EEA family permit as mentioned in art. 10 of directive 2004/38/EC.

You mean a Residence Card, as referred to in Article 10, not an EEA Family Permit.

I mean the residence card as a family member of an EU national. You are right.
But my message was longer and thus clear enough

However, even without these documents, proof of prior stay in the UK and marriage are enough to go to Germany and have her apply for residence based on your EU rights.

Only if the German national has been engaged in economic activity in the UK.

You are incorrect.

Also being economically inactive and study in the UK qualifies.
See art. 7 of Directive 2004/38/EC, par. 1 under b and c.

[Ben]

However, even without these documents, proof of prior stay in the UK and marriage are enough to go to Germany and have her apply for residence based on your EU rights.

Only if the German national has been engaged in economic activity in the UK.

You are incorrect.

Also being economically inactive and study in the UK qualifies.
See art. 7 of Directive 2004/38/EC, par. 1 under b and c.

Prawo, you are forgetting that the OP is a German national wishing to move to Germany with his Brazilian spouse.

In this case, Directive 2004/38/EC only applies in accordance with the ECJ ruling on Singh, which explicitly refers to the Union citizen having engaged in economic activity in another Member State prior to returning to his 'home' Member State.

[Prawo]

I did not forget.

However you forgot the court only rules on cases presented to her.
In the case of Surinder Singh employment was involved. However this does not mean being employed is a condition.
Using any freedom of movement is.

I can assure you the activities I mentioned quoting art. 7 also entitle the return to your home country with the right to take your family members.

The only question that remains open is if those family members should have joined you before you returned or not.
In my opinion you can always bring in your wife from outside the EU, even if you only met her after your return to your home country.
In other words the rights you obtained from moving around in the EU will not be lost. They are your rights and you can activate them any time, also on behalf of future family members.

If you read Dutch take a look at www.rechtspraak.nl and search for the case with LJN-number BK3910.
My Dutch client was five month in a Belgian hospital, economically inactive. So his wife benefits from the rights derived from this stay and has legal residence after his return to The Netherlands.

[Ben]

I did not forget.

However you forgot the court only rules on cases presented to her.
In the case of Surinder Singh employment was involved. However this does not mean being employed is a condition.
Using any freedom of movement is.

I can assure you the activities I mentioned quoting art. 7 also entitle the return to your home country with the right to take your family members.

<snip>

Sorry Prawo, but although you appear to be aware of the ECJ ruling on Singh, you seem not to fully understand what a legal precedent is. I don't mean to be condescending, but it would be wrong to mislead people in such important matters.

Again, the Singh case referred explicitly to Mr Singh's engagement of economic activity in another Member State. The judgement was based on Mr Singh's engagement of economic activity in another Member State. The precedent set by the case is based on the engagement of economic activity, by a Union citizen, in another Member State. If the Singh case referred instead to 'the exercise of a Treaty right', all would be different.

A lovely idea it may be, that exercising a Treaty right other than in the pursuance of economic activity would be covered in the precedent set by Singh - sadly it is not the case. I wish it were, but it is not.

Of course, Member States are perfectly entitled to extend the provisions of the Singh ruling to returning citizens who did not engage in economic activity in another Member State. Do you know any that do?

[Prawo]

Sorry Prawo, but although you appear to be aware of the ECJ ruling on Singh, you seem not to fully understand what a legal precedent is.

I think I am more aware than most member states. And you apparently.
Par. 35 in the Eind decision states A national of a Member State could be deterred from leaving that Member State in order to pursue gainful employment in the territory of another Member State if he does not have the certainty of being able to return to his Member State of origin, irrespective of whether he is going to engage in economic activity in the latter State.
It's true that Einds stay would now be based on art. 7, sub 1 under a (work). But of course the Courts ruling would not have been different should his stay have been based on par. 1 under b or c.

By advising different you keep people unaware of their rights under the Directive.

Again, the Singh case referred explicitly to Mr Singh's engagement of economic activity in another Member State. The judgement was based on Mr Singh's engagement of economic activity in another Member State. The precedent set by the case is based on the engagement of economic activity, by a Union citizen, in another Member State. If the Singh case referred instead to 'the exercise of a Treaty right', all would be different.

In the Surinder Singh case, like in Akrich, Eind and Metock, "economic activity" or "work" can be replaces without any difficulty by "study", "receiving services" and "economically not active".

A lovely idea it may be, that exercising a Treaty right other than in the pursuance of economic activity would be covered in the precedent set by Singh - sadly it is not the case. I wish it were, but it is not.

I fear you are not the expert on this matter.

If it's the UK or Irish practice, you have a case you will win (or loose when you work for the government).

The EU is not about freedom of economic activity alone any more.
It's about freedom, in this case of movement of persons.

Of course, Member States are perfectly entitled to extend the provisions of the Singh ruling to returning citizens who did not engage in economic activity in another Member State. Do you know any that do?

It's a fact The Netherlands do.
And it's my experience they only do because they have to.
Be convinced they prefer to act otherwise and would love to follow your narrow interpretation.