Oct 2010 New EU Guide : Freedom to move and live in Europe

[pierre75]

Oh, oh ! A new guide from Brussels related to the 2004/38. The final one ?

I don't see nowhere reference to it.

Even google or scroogle do not mention it (except now on the scribd and multinational.leforum.eu sites where I posted it).

I looked on immigration.boards but I didn't find nothing yet neither.

It is clearly aimed to the attention of euro-foreign families


Freedom to move and live in Europe

A Guide to your rights as an EU citizen

October 2010

http://ec.europa.eu/justice/policies/ci ... vement.pdf

Chapter 1 What is EU citizenship? ................................................4
Chapter 2 Who can benefi t? .......................................................6
Chapter 3 Where can you exercise this right? ...............................9
Chapter 4 Preparing to move ....................................................10
Schengen rules ........................................................................12
Chapter 5 The first three months ...............................................14
Reporting your presence ...........................................................15
Chapter 6 After three months ....................................................16
Chapter 7 Administrative formalities ...........................................18
EU citizens ...............................................................................18
Non-EU family members ............................................................21
Sanctions .................................................................................22
Chapter 8 Keeping the right to reside .........................................23
Family members .......................................................................24
Chapter 9 Right of permanent residence .....................................26
Administrative requirements ......................................................29
Chapter 10 Equal treatment .......................................................30
Chapter 11 Restrictions .............................................................32
Chapter 12 Transitional arrangements for workers .......................35
Chapter 13 How to protect your rights .........................................37

[pierre75]

The new thing for family members who are not EU citizens themseves is this one : they have to present document attesting to the existence of a family relationship or of a registered partnership and documentary evidence that they are dependent on the EU citizen, if applicable (page 21)

Documentary evidence of dependency on the EU citizen !!!

It’s something that seems really really crazy.

Fight against shame marriage ? Or something darker ? Is UE trying to allow those of the Member States who don’t want their poor citizens to bring in non-UE spouses or partners to refuse them access to their treaty rights as well as their fondamental rights ???…

Is it one of the hidden reason why Sarkozy-Merkel officially declared yesterday they want to change one more time the Lisbon Treaty ?

Residence card

Family members who are not EU citizens themselves will be issued a residence card clearly indicating that they are family members of an EU citizen upon presentation of the following:

• a valid passport;
• your registration certificate or, in the absence of a registration system, any other proof of your residence in the host EU country; and
• a document attesting to the existence of a family relationship or of a registered partnership with you and documentary evidence that they are dependent on you, if applicable.

Family members who have the right to have entry and residence facilitated must present any of the same documents which are required from EU citizens who enjoy that right.


Deadlines and validity

Your family members who are not EU citizens themselves are obliged to apply for a residence card where the planned period of residence is for more than three months.

The deadline for submitting the application may not be less than three months from the date of arrival.

The residence card is issued within six months from application and is valid for five years (or for the duration of the envisaged period of your residence if this is less than five years) from the date of issue. It must be issued as a self-standing document and not in the form
of a sticker in a passport. A certificate of application should be issued immediately.


Validating and translating documents

As for EU citizens, you may be required to have documents certified as genuine if the EU country has serious doubts about their authenticity. To do this, you need to go to a lawyer, a notary or your embassy, and a fee is usually payable. If the EU country cannot understand your documents, you may also be asked for a translation.

EU countries can adopt the necessary measures to refuse, terminate or withdraw any right conferred by the Directive in the case of forged documentation.

DG-JLS XXX - Guide freedom to move_v07_EN.indd 21 29/09/10 11:24


Fees?

Residence cards must be issued free of charge or for a charge not exceeding that imposed on nationals for the issuing of similar documents.


Where can I find more?

You can find the precise legal wording on the matter covered in this section in Articles 9 to 11 of the Directive.

[86ti]

Nothing really new there actually, though the following bit is interesting.

If your third country family members move between a Schengen EU country and a non-Schengen EU country, they can also be exempted from the visa requirement if they have a valid residence card issued to them as family members by an EU country other than that of your nationality.

Actually that should read 'between a Schengen EEA country and a non-Schengen EEA country' as Liechtenstein is still not a member of Schengen but is bound by the Directive and has transposed it accordingly.

The last part seems to imply that family members of EEA nationals who return to their country of origin under EEA regulations cannot make use of visa free travel.

[86ti]

The new thing for family members who are not EU citizens themseves is this one : they have to present document attesting to the existence of a family relationship or of a registered partnership and documentary evidence that they are dependent on the EU citizen, if applicable.

The crucial bit is actually the bold text above. Remember that children over 21 and parents have to be dependent.

[eldane]

Page 2 (clearly marked in a box in the bottom)

It is not a legally binding document and is not exhaustive. Neither the
European Commission nor any person acting on behalf of the Commission
is responsible for the use which might be made of the following information.

[MelC]

[quote="pierre75"]The new thing for family members who are not EU citizens themseves is this one : they have to present document attesting to the existence of a family relationship or of a registered partnership and documentary evidence that they are dependent on the EU citizen, if applicable (page 21)

Documentary evidence of dependency on the EU citizen !!!

It’s something that seems really really crazy.

Fight against shame marriage ? Or something darker ? Is UE trying to allow those of the Member States who don’t want their poor citizens to bring in non-UE spouses or partners to refuse them access to their treaty rights as well as their fondamental rights ???…

Is it one of the hidden reason why Sarkozy-Merkel officially declared yesterday they want to change one more time the Lisbon Treaty ?

[quote]

The Dependancy issue is for family members ~ NOT spouses, its always been that.

If you say you want your granma to come and live with you when you move to anohter country then you have to show that she was dependant upon you in the first country. thats all that is.

My husband is from a "poor" country, not EU, we have had to fight for hte visa and now we have to fight to get on a ferry as a schengen visa requires return ticket etc ~ yes WE all know that its an entry visa ~ try telling italian ferry companies that!!

Did you think Sarkozy and merkel had plans other than changing things?

the Roma situation ~ the best the EU could do was say they were "unhappy" with Frances expulsion!

Sarkozy and merkel think htey control the EU, and you know what, unless the spinelss wonders there stand up, they will be doing so!!

[MelC]

Nothing really new there actually, though the following bit is interesting.

If your third country family members move between a Schengen EU country and a non-Schengen EU country, they can also be exempted from the visa requirement if they have a valid residence card issued to them as family members by an EU country other than that of your nationality.

Actually that should read 'between a Schengen EEA country and a non-Schengen EEA country' as Liechtenstein is still not a member of Schengen but is bound by the Directive and has transposed it accordingly.

The last part seems to imply that family members of EEA nationals who return to their country of origin under EEA regulations cannot make use of visa free travel.

doesn't it just mean such as travelling from the UK(non-Schengen) to for example France (schengen) and you are for example italian and your spouse is Egyptian, if hte egyptian sposuse has a residence card issued in UK therefore NOT the italians country of nationality, then the Egyptian spouse does not need a visa to travel within the EU.

it does say tht it doesn't matter what visa a person arrived on, so this also covers the ILR situtation where people say its residence, yes but issued in the country of the EU citizens nationaily therefore YOU NEED A VISA !

at last an answer!!

[86ti]

A residence card would also be obtained by non-EEA family members if an EEA national returns to his/her country of origin under Singh, Eind, et al. rulings.

ILR is not covered by EEA regulations. You still get that wrong.

[MelC]

A residence card would also be obtained by non-EEA family members if an EEA national returns to his/her country of origin under Singh, Eind, et al. rulings.

ILR is not covered by EEA regulations. You still get that wrong.

Good point on singh ~ but the UK returning resident is treated as an EEA national then? but Its an interesting point ~ that will probably cause a problem somewhere down the road.

as for ILR ~ NO its not covered by EEA regulations, its "domestic/national" immigration ~ which to be honest I had taken to be that the 2 were seperate and remained that way, to the point that a UK citizen with a third country national spouse with ILR when holidaying would need PAID schengen visas, as the Directive applied to persons who moved for economic reasons, however as its a fundamental right of EVERY EU citizen to move freely, I would have taken it that the ILR spouse would still need a paid schengen visa,

NOT SO "your europe" tell me when i asked them ot clarify it ~ and THEY refered to the 2006 immigration regs for EEA nationals saying that the ILR spouse IS entitled to the Free visa on the accelerated procedure.

I think its the far reaching effects of the METOCK ruling? and the Directive update in this thread DOES state that it does not matter how/which visa a person arrives in the EU spouses country of origin, will ahve to go back through it and pick it out ~ but its there, I read it today!!

I will go read it again, and post the section, and also what your europe had to say.

and ~ I got a reply from the ferry company today !!! YES we can sail without return tickets ~ I have posted that elsewhere and hope it helps someone if htey are faced with the same dilemma!

[MelC]

The Directive only applies if you actually move to or reside in an EU country other than that of which you are a national, and to your family members who accompany or join you.

this is from page 6 ~ how does that apply to DUAL nationals? is this how the McCarthy case will be decided?
is this the answer to all British/Irish EEAfp applications from now on?

and from page 7 ~

Your family members, irrespective of their nationality, have the right to accompany or join you in an EU country other than that of your nationality. This right applies regardless of whether they have previously been residing in another EU country or with which visa the family member entered the host EU country.

I obviously mis read it slightly to start with ~ as it says host EU country NOT EU citizen country of origin. (senior moment on my part)

page 14 ~
It does not matter whether you came to work or study there or just to visit as a tourist.
A valid identity card or passport is all you need.
Third country family members who accompany or join you can reside with you for up to three months just with their passport.

[MelC]

"..........Would you please clarify that non EU spouses within the EU who are in that country under DOMESTIC IMMIGRATION of that country are or are not then permitted to have the "free" accompanying visa when going on holiday or whatever other reason they have for being in another Schengen state.

thank you

Reply
Dear Mrs C,

Thank you for your enquiry.


Since your friend’s spouse does not have a residence card issued to family members of EU citizens under Article 10 of Directive 2004/38, regrettably this means that your friend’s spouse will need a visa in accordance with Article 5(2) of Directive 2004/38 if required under Regulation No 539/2001. This Regulation makes it compulsory for Tunisian nationals to be in possession of a visa when entering the Schengen area.

The Schengen area comprises all EU countries (except the UK and Ireland, and the two new EU member states which are not yet full members of Schengen: Bulgaria and Romania), as well as the EEA states (Norway and Iceland) and Switzerland.

A Schengen visa entitles the holder to travel within any of the Schengen countries for up to 3 months in any given 6 month period. Under Directive 2004/38, family members are entitled to obtain a Schengen visa free of charge, regardless of whether they are residing in the UK under the UK Immigration Rules or Directive 2004/38 as implemented by the Immigration (EEA) Regulations 2006.
We remain at your disposal, should you require further information.

We hope this answers your query.

[acme4242]

The Directive only applies if you actually move to or reside in an EU country other than that of which you are a national, and to your family members who accompany or join you.

this is from page 6 ~ how does that apply to DUAL nationals? is this how the McCarthy case will be decided?
is this the answer to all British/Irish EEAfp applications from now on?

The actual wording from the ECJ is, the citizen must establish a link with
Community Law, this means there must be a cross border factor.
So the guide is wrong.
One method to establish a cross border link is, indeed, if you move to
or reside in an EU country other than that of which you are a national.
But this is just one method to establish a cross border link,
there are other methods that don't involve any movement.

You can establish a cross border factor by being a dual EU citizen, even
you never left the country of your birth.
e.g. a Dual Spanish/Belgian born and always living in Belgium is a
beneficiary of community law, even they never left their country of birth.
This is already Law. see ECJ Case C-148/02 Carlos Garcia Avello v Belgium and some other
scenarios >here< e.g. Surinder Singh route

The UK court failed to take into account already existing
EU case law in the UK judgment.
For this reason I expect the ECJ to find in favour
of the McCarty family in the current ECJ case Shirley McCarthy v UK
Hope I don't have to eat my words...

EDIT: ok, I see the extras on page 7... why did they use the word "only" on page 6, then tag extras on page 7 ...ahhh

You are also entitled to benefit from the rights granted under the Directive if you return home after having resided in another EU country.
In certain circumstances you may benefit from the Directive without having resided in another EU country, for example by providing services in another EU country without residing there.

[MSH]

The actual wording from the ECJ is, the citizen must establish a link with
Community Law, this means there must be a cross border factor.
So the guide is wrong.
One method to establish a cross border link is, indeed, if you move to
or reside in an EU country other than that of which you are a national.
But this is just one method to establish a cross border link,
there are other methods that don't involve any movement.

You can establish a cross border factor by being a dual EU citizen, even
you never left the country of your birth.
e.g. a Dual Spanish/Belgian born and always living in Belgium is a
beneficiary of community law, even they never left their country of birth.

[/quote]

Yes, and another way to a establish cross-border factor would be as a RECIPIENT of services, as for instance when a tourist travels to another EU country. This is case law already, see joined cases Luisi and Carbone.

So in theory, anyone who has ever traveled to another EU member state than that of their own is entitled to all the benefits conferred to them in directive 2004/38 vis a vis the ruling in the Carpenter case, where the link with community law was the directive on services but the right to stay was granted on the basis of the european human rights convention, art. 5.

What seems more relevant though, is Advocate General Shapston's latest opinion on the Zambrano case from sep. this year:

"77. However, I do not think that exercise of the rights derived from citizenship of the Union is always inextricably and necessarily bound up with physical movement. There are also already citizenship cases in which the element of true movement is either barely discernable or frankly non-existent.

78. In García Avello, (62) the parents were Spanish nationals who had moved to Belgium; but their children Esmeralda and Diego (who held dual Spanish and Belgian nationality and whose contested surname formed the subject-matter of the proceedings) were born in Belgium and, so far as can be gleaned from the case report, had never moved from there. In Zhu and Chen, (63) Catherine Zhu was born in one part of the United Kingdom (Northern Ireland) and merely moved within the United Kingdom (going to England). The laws then granting Irish nationality to anyone born on the island of Ireland (including in Northern Ireland), coupled with good legal advice, enabled her to rely on citizenship of the Union to found a right of residence in the United Kingdom for herself and her Chinese mother, since otherwise it would have been impossible for her, as a toddler, to exercise her rights as a citizen of the Union effectively. In Rottmann, (64) the crucial citizenship (German citizenship by naturalisation, rather than his earlier Austrian citizenship by birth) was acquired by Dr Rottmann after he had moved to Germany from Austria. However, the judgment disregards that earlier move and looks exclusively to the future effects that withdrawal of German citizenship would have by rendering Dr Rottmann stateless."

The present guide seems to consciously close it's eyes to the already firmly established practice of the ECJ to soothe the more xenophobic governments of some EU member states..

MSH.

[acme4242]

Zambrano Case C-34/09

A few things jump out at you in this case,
its actually a purely internal Belgian case.
But it has been sent to the ECJ because Belgium are bound
by their own constitutional principle of equality.

To avoid reverse discrimination the national court
need to know where the Zambrano children who are Belgian
would stand if they where beneficiary of Community law.
So they can match these rights in National law.

Compare this to the rogue shameful states of Ireland, UK,
and Germany who treat their own as untermenschen, not
deserving equality.

[MSH]

Zambrano Case C-34/09

A few things jump out at you in this case,
its actually a purely internal Belgian case.
But it has been sent to the ECJ because Belgium are bound
by their own constitutional principle of equality.

To avoid reverse discrimination the national court
need to know where the Zambrano children who are Belgian
would stand if they where beneficiary of Community law.
So they can match these rights in National law.

Compare this to the rogue shameful states of Ireland, UK,
and Germany who treat their own as untermenschen, not
deserving equality.

Absolutely. The AG's reflections on reverse discrimination seems to point towards a near future in which member states will have to choose between membership of the EU or continued human rights abuse against their own citizens (DENMARK!)

Citizenship of the Union is strongly based on the fundamental rights which should be a given in any modern democracy but apparently, politicians all over Eurpoe still think it's alright to violate those rights.

The politicians wan't the ECONOMIC advantages of a union but refuse to grant their own citizens the BENEFITS of such an (economic) union.

But people are not merely tools of production, to paraphrase AG Sharpston. They move and fall in love and form family ties across borders and cultures..

Time to start treating people as HUMAN BEINGS.

[Monifé]

The politicians wan't the ECONOMIC advantages of a union but refuse to grant their own citizens the BENEFITS of such an (economic) union.

Couldnt have said it better myself!

Does anyone have an update on the McCarthy case?