Non-EEA Spouse live in Portugal with Swedish-Portuguese Wife

[swedeinus]

I've been living with my American husband in the US for the past 12 years. We're in a transition to move to Europe, and I've been in Sweden (my country of citizenship) for a month now with my kids while my husband is working still in the US to save up money. We intend to settle in Portugal, hopefully having him join us in 3-5 months.
We're unsure of what route is best for us to take in regards to obtaining initial residency for my husband in Portugal. First route is getting an EEA Family Permit. I have questions about the procedure however, and finding answers online seem impossible--any links to the Portuguse Embassy are fake. I wonder if I need to obtain residency in Portugal before initiating the procedure for my husband? I'm not a resident of Sweden at this point and as such have no right to get the EU Health Card which is needed to apply for residency in other EU countries.
I also wonder how long this procedure takes for my husband.

The second route is for me to apply for Portuguese citizenship (through descent, my father is Portuguese), but I'm unsure of whether this is preferrable (over the EEA Family Permit), as I know nothing of the requirements (for example, would I need to supply proof of financial suffiency--in Sweden a spouse does not, but in the US, yes). Also I don't know how long it would take for me to become citizen, and then how long it would take for my husband to obtain a spouse visa and how much it would cost and whether there are any other requirements.
I do not intend to work in Portugal. When my husband arrives, he will attempt to find a suitable job and live off savings initially. The savings aren't large enough for more than 3 months however, so if the government asks that we're financially sound, I'm sure that amount would not qualify.

My biggest concern is getting him to Europe as quickly as possible, and as cheaply as possible (I know the EEA Permit is free). I also prefer not to register myself as a resident in Sweden (to get the EU Health Card) because we're homeschoolers and even though it's legal there to home educate, many families are currently being denied that right.

Hope this all makes sense.

Thanks!

[mochyn]

Is your family fluent in Portuguese?
It seems an odd choice coming from the USA.

[86ti]

The EEA family permit is a UK thing. What you are looking for is a residence card. The European Health Insurance Card is not a requirement to take up residence in another member state. Otherwise, I can only refer you to Directive 2004/38/EC to understand your rights under EU law. Can't comment anything on Portuguese national law (your possible second option).

[eldane]

Ministério da Administração Interna linking directly to immigration web site: http://www.mai.gov.pt/lertexto.asp?id=54 -> http://www.imigrante.pt/

NACIONAIS U.E / E.E.E / SUÃ

[Richard66]

Check to see if you, as a Portuguese citizen, might have a better deal than if you are only an EEA family member.

Also remember that you ARE already Portuguese through your father: the fact you do not hold a Portuguese passport is irrelevant and the Portuguese will not recognise you as having any other citizenship when you deal with them, the same as the Swedes or the Americans.

[swedeinus]

Wow, lots of good answers.

86ti--ok, I see I don't need a health insurance card. Perhaps I misread something on the Portuguese Citizen website. Is there anything that the new state of residence would require, besides proof of financial means? Would I have to have been covered by my country's national insurance plan prior to taking up residence in Portugal? I'm not covered currently as I've not been a resident in Sweden for the last few years.
Lastly, when I take up residence in another EU country, do I immediately get state health coverage? I will not work there at least for some months, but will be supported by my husband so I would have proof of self-sufficiency.

Richard66--If the Portuguese gov recognizes me only as a Portuguese national, how can use the EEA route to apply for residency for my husband? Wouldn't they require him to apply as a spouse of a Portuguese national?
Lastly, how would they even know that I'm Portuguese? I was told on another board that having a Portuguese father doesn't automatically make you a citizen, but that you have the right to apply for it. It's kind of like when I came through UK customs with my children's US passports and they said they would not be allowed to remain in the UK (we were just passing through, but he was being a bit of a jackass) for more than 6 months without visa, even though my kids are automatically Swedish citizens at birth (I carry a Swedish passport).

As to the question of why we've chosen Portugal. Well, I'm part Portuguese, and no I'm not fluent in the language yet. I'm not American myself, only my husband is.

Thanks again!

[Richard66]

What I say is that maybe the Portuguese are more generous to its nationals than to other EEA nationals.

I believe the children of Portuguese citizens are automatically Portuguese. You need to look into this. Maybe the Portuguese consulate might help you.

Keep in mind that it might be nigh impossible for an Immigration Officer to know who has right to which citizenship. You mention the UK and the US. As you might know, the children of American citizens are not necessarily Americans, principally if born abroad. The UK immigration officer naturally assumed that if your children were born in the US they could not be Swedish, pricipally if you consider that the children of UK citizens by descent are not British if also born abroad!

Anyway, if you are Swedish you just go straight to Portugual and register. You must give them a Swedish address, which is quite normal and above board, because, in the EEA you are considered automatically to be an EEA citizen and not American. Why this? Because you have entered the EEA on a Swedish passport and therefore your residence in the EEA is based on your having an EEA citizenship. Just forget about your Amercan citizenship for now and apply for Swedish passports for your children while you are still in Sweden.

[86ti]

Ok, I see that your concern is health insurance. The problem is that self-sufficiency of the EEA national may be a problem. It seems to really depend on the member state. Possible that you could be insured through your spouse's work, possible that Portugal thinks that you would need to take out a private health insurance, also possible that you would have to do that for everyone in the family (that's the madness here in the UK). Sorry, I really do not know the situation in Portugal.

[swedeinus]

86ti--how's the situation in countries you're aware of? I've been uninsured for years in the States, so I could continue with that obviously until my husband arrives and he/we start working there. As the Portuguese Immigration services state that residency can be given on basis of self-sufficiency I'm assuming that I'll be fine. And if they demand I take out private insurance, that wouldn't be the end either. I think mostly I just wanted to know whether, considering my recent situation (non-resident of EU), I would need to have been a resident of my homecountry immediately prior to taking up residence in another EU country. Now that sounds strange to me, but I'm getting into the habit of checking into the smallest and unlikliest of circumstances.

Richard66--I'm not an American citizen. So if I have to supply a Swedish address, do the Portuguese authorities check to see whether I'm registered at that address with the Swedish authorities? I've only been here for a month, a sort of detour, and am not supposed to register myself here if staying less than a year. Of course I can use my family's address.
Yes, I did go ahead and get Swedish passports for the kids, thanks to my UK customs experience! I won't have the youngest one's with me as I enter the country in two days (they had to 'try' his citizenship), but will be ready to be picked up in Lisbon soon.

thanks again!

[lifeart]

No, you do not have to have resided in the EU in order to move to another EU member state. You can move to Portugal directly from the States. All that is needed is your EU-passport and proof of family relationship (marriage certificate) in order to get the resident permit for the non-EU spouse. Also, no Swedish address is needed in order to register in Portugal.
The health insurance (in this case probably a private policy) coverage is one of the conditions to be able to register as self-sufficient.
The amount of money needed to prove "self-sufficiency" is normally the amount for a year that you would get if you were receiving cash benefits through state assistance in the host member country, so about Euro 6,000 - 10,000 per person, depending on how "generous" their system is.

[Richard66]

Well, you do need a Swedish address, because they will ask you for your details in your home country, which is, of course, Sweden. It is perfectly acceptable to use your family address and no, they will not check. They could not, anyway, even if they wanted to.

[lifeart]

I am sorry, but I have not seen any requirement in any of the pertinent regulations regarding an obligation to have an address in one's home member state in order to register for residence in another member state.
The OP certainly would have a Swedish address, so no problem there. But what about an EU citizen that lives outside the EU, plans to move to the EU (but not the original home member state) and therefore has no prior address anywhere in the EU. Someone like that still has the right to register and reside in the EU, even though they have not lived inside the EU prior to their move

[86ti]

I would be surprised if Portugal wouldn't have a compulsory system or a health system that would automatically cover everyone. They certainly have the right to ask you for a comprehensive sickness insurance so be prepared for one of the various scenarios I described earlier.

I know for a fact that in Austria, and I heard the situation in Germany is similar, that spouses can be included in the health insurance scheme of the other partner (I think even for free if there are also children) and it doesn't matter who is working.

[86ti]

Check to see if you, as a Portuguese citizen, might have a better deal than if you are only an EEA family member.

In this case the Portuguese may think that she then has to be treated as a national (just speculation). The Germans obviously do not recognize the dual nationality in such cases - except when the couple/family is returning from another member state after having exercised the treaty rights.

[Richard66]

No, you do not have to have resided in the EU in order to move to another EU member state.

I am not saying one mut have resided in the home state; I am saying one must have an address in the home state. Any address, because they do ask on the registration forms which country you are coming from. This is the case both in France and Italy. If you give a US address then the whole system will come to a halt, because it is assumed all EU citizens moving to another EU state are doing so from their home country. This is really just a bureaucratic thing. I remember I had to give an UK address when I registered in Italy, even though I was before that residing outside the EU.

86ti, no country recognises itsa own nationals as being nationals of another state. They might accept it, but you will never (except in the case of the UK and Ireland, where there is a specific agreement) be treated by your own state as being at the same time the national of another one. This is a principle of international law that goes by the name of Effective Natonality. You cannot be German for some things, French for some others and Dutch for yet others.

[86ti]

86ti, no country recognises itsa own nationals as being nationals of another state.

The question here is: Can dual nationals never having exercised their treaty rights before benefit from their second EEA nationality? Germany obviously thinks no, other states may think the same. But in the UK the answer is yes (the last time I checked) and also in Austria since a court case from last year based on an EuJ judgment.

[Richard66]

As I say, this is particular arrangement between the UK and Ireland. I can tell you no Italian can go around claiming to be Spanish!

What are the details for the case in Austria?

[86ti]

As I say, this is particular arrangement between the UK and Ireland. I can tell you no Italian can go around claiming to be Spanish!

What are the details for the case in Austria?

Austrian-British dual national wanted to make use of the EEA route. The relevant national court decided that that would be possible based on the case of case Garcia Arvello C-148/02.

The UKvisa web page once had a link regarding dual national (can't find it anymore) in general, not just Irish.

[Richard66]

Interesting case, but not really related to citizenship but rather to the choice of the parents to give two surnames based on the usage of the country of one of the parents. I notice most countries avoid thinking of this by omtting altogether from birth certificates any mention of citizenship.

My parents both were from English-speaking countries (UK and USA) though I was born and acquired citizenship by birth in a country that follows Spanish and Portuguese usage. At the time in that country dual citizenship was neither accepted nor forbidden, but this did not impede my parents to give me one surname, following the usage acceptable to them. I have French cousins (American mother) who were also born in the same country at roughly the same time and also have only their father's surname. Our daughter has recently acquired Russian citizenship, but she will not be obliged to change her name to suit Russian usage (and have different names depending on which citizenship she uses) and here too her British citizenship plays no part. Come to think of it, my mother was also born (and was a citizen by birth) in a country than normally gives two surnames to its citizens, but her parents (both American) gave her but one.

Anyway, this is off topic and really will not help our Swedish friend too much!

[Richard66]

I have found this:

Lei n.o 37/2006 de 9 de Agosto (the Portuguese transposition of Directive 2004/38).

In article 1 it is written:

2—A presente lei estabelece igualmente o regime jurídico de entrada, residência e afastamento dos nacionais dos Estados partes do Espaço Económico Europeu e da Suíça e dos membros da sua família, bem como dos familiares de cidadãos nacionais, independentemente da sua nacionalidade.

And in Article 3:

5—As normas da presente lei aplicáveis a familiares são extensíveis aos familiares de cidadãos de nacionalidade portuguesa, independentemente da sua nacionalidade.

Both say that family members of Portuguese citizens are treated the same way as family members of all other EEA/Swiss family members, so that you can enter Portugal with your family even if you are Portuguese.

For your citizenship I have found this:

Lei n.º 37/81 (Nationality Act)

In article 1 it says:

b) Os filhos de pai português ou mãe portuguesa nascidos no estrangeiro se declararem que querem ser portugueses ou inscreverem o nascimento no registo civil português;

It says that if your parents registered you with ther Portuguese authorities, then you are Portuguese already, if not and you want to become Portuguese you must declare your wish to do so.

Considering Portuguese citizens are offered better protection than EEA nationals, I would say you better apply for Portuguese citizenship.

86ti, the Portuguese difitively will not accept the EEA route for its nationals, as they do indeed apply the principle I mentioned above, that is, effective nationality. Article 27:

Se alguém tiver duas ou mais nacionalidades e uma delas for portuguesa, só esta releva face à lei portuguesa.

If one has more than one citizenship and one of those is Portuguese, only the latter is relevant for the application of Portuguese law.

Article 28 is also interesting, though not relevant in this case, as it develops the concept of effective nationality:

Nos conflitos positivos de duas ou mais nacionalidades estrangeiras releva apenas a nacionalidade do Estado em cujo território o plurinacional tenha a sua residência habitual ou, na falta desta, a do Estado com o qual mantenha uma vinculação mais estreita.

In the case of dual nationals who are not Portuguese, they are considered as being citizens of the country where they live, or, if they do not live there, with the country they have closest conections with.

[Directive/2004/38/EC]

Also remember that you ARE already Portuguese through your father: the fact you do not hold a Portuguese passport is irrelevant and the Portuguese will not recognise you as having any other citizenship when you deal with them, the same as the Swedes or the Americans.

Richard,

I am not sure this is true in the case of Directive 2004/38/EC.

EU member states have clear control over who they give citizenship to, and who they take it away from. That is clear.

But I am not at all sure they can say "I see you as Portugese only, and refuse to recognize you are Swedish.".

Note that in the UK, which has traditionally tried to minimize the number of people who can take advantage of EU law, allows anyone (including if they have dual UK citizenship) who is citizen of another member state to enter the UK on that basis of Directive 2004/38/EC

[Richard66]

Se alguém tiver duas ou mais nacionalidades e uma delas for portuguesa, só esta releva face à lei portuguesa.

From the Portuguese citizenship law: If one has two or more nationalities and one of them is Portuguese only the latter is considered by Portuguese law.

I had quoted this in a post above, did you not see it?

Directive, I have been looking through your site, but many of the links are no longer funtioning.

[Directive/2004/38/EC]

It's kind of like when I came through UK customs with my children's US passports and they said they would not be allowed to remain in the UK (we were just passing through, but he was being a bit of a jackass) for more than 6 months without visa, even though my kids are automatically Swedish citizens at birth (I carry a Swedish passport).

The UK immigration person you talked with was 100% wrong and WAY out of line. If you ever have this again, ask them to call their supervisor over!

Even if the children had NO European citizenship(s), they are still your children, and they therefore have an absolute right to be with you in other EU member states (the only exception is if the children are threats to national security, BIG public policy, or have deadly contageous diseases). If you are in the UK, then they can stay as long as they want. In fact, neither you (as a swedish person) nor they (as family members) require ANY offical documentation to stay indefinitely in the UK.

The only documentation you need is your passport, their passport (US is fine), and to prove the relationship their birth certificate.