Freedom of Movement in the EU:

Freedom of Movement

in the EU:

A Look Behind the Curtain

NO ENTRY

European Citizen Action Service

www.ecas.org

Freedom of Movement

in the EU:

A Look Behind the Curtain

Author: Anna Nicolaou

Editor: Assya Kavrakova

Design: Konstantin Jekov

This publication has been produced in the framework of the ACT for Free Movement Project

This project has been supported by the European Programme for Integration and Migration (EPIM),

a collaborative initiative of the Network of European Foundations. The sole responsibility for the content

of this publication lies with the author(s) and the content may not necessarily reect the positions

of NEF, EPIM, or the Partner Foundations.

the contents in any form is prohibited other than the following:

> you may print, copy or download to a local hard disk the le for your personal and non-commercial use only;

> you may copy the content to individual third parties for their personal use, but only if you acknowledge the authors as

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You may not, except with the express written permission of the author, distribute or commercially exploit the content.

European Citizen Action Service

The Main Findings (Executive Summary) 7

Introduction 7

Obstacles to Entry 8

EU nationals 8

Non-EU family members 8

Obstacles to Residence 11

Diculties obtaining a residence document 11

Restrictive practices by national authorities 11

1. The personnummer saga in Sweden 12

2. The residence cards problem in France 13

3. The non-recognition of foreign marriage

certicates in Spain, France, Italy and Portugal 13

The requirements 13

The problem 14

The consequences 14

Conclusion and Recommendations 15

Freedom of Movement in the EU: A Look Behind the Curtain

Contents

1. Introduction 17

2. Obstacles to Entry 19

2.1. In a nutshell 19

2.2. Non-EU family members 19

2.2.1. The quest for the right information 19

2.2.1.1. Online information sources on entry rules

do not distinguish between family members

of EU nationals and other non-EU citizens 20

2.2.1.2. Confusing or incorrect information given

by national authorities 20

2.2.1.3. Visa service providers are ignorant of EU family

members’ rights and misinform citizens 21

2.2.2. A visa is required when it should not be 23

2.2.3. Refusal to process visa applications 25

2.2.3.1. Applications are not accepted in the country

of legal presence or legal residence 25

2.2.3.2. Refusals to process the visa application

with no opportunity to apply elsewhere 26

2.2.4. What happened to the free accelerated procedure? 27

2.2.4.1. Diculties in applying for a visa –

contacting the consulate/visa centre –

getting an appointment 28

2.2.4.2. Embassies do not allow family members

of EU citizens to apply under the accelerated

procedure even though they fulll the conditions 29

2.2.4.2.1. The reasons 29

2.2.4.2.2. The consequences 31

2.2.4.2.3. Excessive requirements and fees 31

2.2.4.2.4. Delays in issuing entry visas 33

2.2.4.2.5. Refusals on invalid grounds 34

2.2.4.2.6. Procedural safeguards are not respected 36

2.2.5. Travel documents withheld 37

Contents

2.2.6. Long term or family reunication visa required 37

2.2.7. Visas issued with limited duration 39

2.2.8. Unprofessional conduct of embassy sta 41

2.2.9. Detention and delays at the border 41

2.2.10. Denied entry/exit 41

2.2.11. Airlines not aware of family members’ EU rights 42

2.3. EU nationals 43

2.3.1. Diculties obtaining travel documents 43

2.3.2. Excessive border checks and

identication requirements 43

2.3.2.1. Own nationals denied exit 43

2.3.2.2. Excessive requirements by airlines 44

2.3.2.3. National identity cards not accepted 44

2.3.3. Confusion about the rules 45

2.3.3.1. The notion of valid travel documents 45

2.3.3.1. Obligation to carry a travel document 45

2.3.3.1. Travelling with expired travel documents 45

2.3.3.1. Travelling with minors 45

3. Obstacles to Residence 46

3.1. In a nutshell 46

3.2. A long and dicult road to... a residence document 46

3.2.1. Red tape and other hurdles before even

beginning the application process 46

3.2.1.1. Long waits for an appointment to register 47

3.2.1.2. Non-EU family members who enter on

a short term visa are told to return home and obtain

a long term visa before being allowed

to apply for a residence card 47

3.2.1.3. Set amount of minimum nancial resources

as a precondition to applying for a residence document 48

3.2.1.4. Non-recognition of foreign marriage

and birth certicates 48

3.2.1.5. De facto partners have diculty proving

a “durable relationship” 49

3.2.1.6. UK nationals struggling to obtain

permanent residence documents in France

after the Brexit vote 50

Freedom of Movement in the EU: A Look Behind the Curtain

3.2.2. Excessive requirements 50

3.2.2.1. Workers 50

3.2.2.2. Job-seekers 51

3.2.2.3. Students, pensioners and the self-sucient 52

3.2.2.4. Dependant family members

who are also EU nationals 54

3.2.2.5. Other excessive requirements 54

3.2.2.6. Excessive requirements after 5 years of residence 54

3.2.3. Delays, delays and more delays 56

3.2.4. Residence documents issued with limited validity 58

3.2.4.1. EU nationals 58

3.2.4.2. Non-EU family members 59

3.2.5. The right to residence is denied

without a valid reason 59

3.2.6. “You are required to leave the territory …” 60

3.2.6.1. Expulsions on economic grounds 60

3.2.6.2. Expulsions on public policy grounds 62

3.2.7. What happened to procedural safeguards? 62

3.3. Residence documents and national identication

numbers as a prerequisite to exercising rights

and completing administrative formalities 62

3.3.1. The saga of the personnummer in Sweden 63

3.3.2. The residence cards problem in France 65

3.3.3. Spain 66

3.3.3.1. The problem of the NIE 66

3.3.3.2. The problem of the driver’s licence 67

3.3.3.3. The problem of the disability certicate 67

3.3.4. The problem of the CPR in Denmark 67

3.3.5. The requirement to prove residence

in another Member State in order to obtain

the S1 Form from the competent Member State 67

3.3.6. Catch 22 situations 68

3.3.7. Other diculties 69

3.4. What happened to equal treatment? 69

Contents

4. The Need for Clarication 71

4.1. Satisfying the “comprehensive sickness

insurance” condition 72

4.1.1. The problem 72

4.1.2. The root Cause 72

4.1.3. The “chicken and egg” situation 74

4.1.4. The evidence 74

4.1.5. The current state of play 75

4.1.6. Time for action 76

4.2. The right of non-EU family members

to stay in the host MS beyond the expiry

of their entry visa term, if the residence application

process is still ongoing 77

4.3. The concept of “sucient resources” and their origin 78

4.4. Permanent residence cards and the visa exemption 79

4.5. Applying the Surinder Singh case law 80

4.6. Dual nationals 83

4.7. Dependent non-EU children

after they are no longer dependants 84

4.8. Requirements for issuing

permanent residence documents 84

4.9. The start of the “continuous period of ve years” 85

4.10. The beginning and the end of the initial

three months of unconditional residence 86

4.11. The right of permanent EU residents

to have their family members join them if they are

no longer self-sucient 87

4.12. The “envisaged period of residence” 88

4.13. Limiting the duration of a visa 88

4.14. Residence cards issued to family members

of own nationals 88

4.15. The rights of non-EU carers of EU minors 89

5. Conclusion 90

6. Recommendations 91

Annex I 93

Freedom of Movement in the EU: A Look Behind the Curtain

he right to move and reside in another EU country is very dear to EU citizens. The num-

ber of EU citizens living and working in another EU country has been increasing steadily,

reaching 16 million in 2016

. While such a cross border move goes smoothly for many, there

is still a large number of EU citizens who face signicant difculties.

The European Citizen Action Service (ECAS) has performed research in order to deter-

mine what these difculties are and to establish what action must be taken to enable more

EU citizens to move and reside freely in the EU. The ndings are included in a comprehen-

sive report, entitled “Freedom of Movement in the EU – A Look Behind the Curtain”

outlining the obstacles mobile EU citizens and their family members have reported facing

with regard to their rights of entry and residence in another EU country. This is a summary

of the main ndings.

The evidence was derived from enquiries that citizens submitted to Your Europe Advice

(YEA) between January 2015 and June 2017. YEA is an EU advice service on personal EU

rights of citizens and businesses which ECAS manages under contract with and on behalf of

the European Commission

. YEA receives approximately 20,000 citizen enquiries a year.

More than 1/2 of all YEA enquiries concern citizens’ entry and residence rights in the EU

and these issues have been of increasing concern to citizens in the last year.

Eurostat – Migration and migrant population statistics

http://ec.europa.eu/eurostat/statistics-explained/index.php/Migration_and_migrant_population_statistics

[perhaps include link to the main report here?]

http://europa.eu/youreurope/advice/

Residence and Entry Queries

as a % of All YEA Queries Received between 2011–2017

The Main Findings

Introduction

THE MAIN FINDINGS

25.00%

20.00%

15.00%

10.00%

5.00%

0.00%

2011 20172016201520142013

Residence

Entry

2012

While not all such enquiries received by YEA indicate problems with citizens’ entry and resi-

dence rights, approximately 10–15% of them do. Thus, roughly 1,000 enquiries each year

bring to light problems that mobile EU citizens and their families are facing when travelling

to, or wanting to reside in, another EU country.

Given how fundamental entry and residence rights are to freedom of movement in the EU,

it is important to determine what these obstacles are, why they arise and what can be done

to eliminate them.

The research has shown that these obstacles are many and varied, but some stand out

because they are recurrent and affect the largest number of mobile EU citizens and their

families. This summary provides an outline of the main problems, which all arise as a result

of citizens’ EU rights not being respected. The ve areas where action is most urgently

needed are identied below.

Obstacles to Entry

EU nationals

Non-EU family members

ntry rights is an issue that has been increasing in importance over the last 6 years.

While only 11% of questions received by YEA in 2011 concerned entry rights, by 2017

they had exceeded 20% of all enquiries. While some enquiries concern the entry rights

of EU nationals, the vast majority relate to the entry rights of non-EU family members.

EU nationals face few issues when it comes to entering another EU state. This is reected

by the fact that only 10% of all entry enquiries concern EU nationals.

The main problems that EU nationals have reported facing when travelling within the

EU are:

 Difculties obtaining travel documents from their own consular authorities

when they are resident in another EU country.

 Their national ID cards not being accepted as a valid travel document:

 if they are in paper format – this has affected Greek and Hungarian nationals.

 expired French ID cards have had their validity extended in France by 5 years

without the possibility to obtain new cards – this leads to problems when trying

to use the card as a travel document as the card appears to have expired.

 Dual EU national children have been denied exit by their country of nationality when

traveling only with a passport issued by the country of their other EU nationality –

this has affected Polish children in particular, who have been required to hold a Pol-

ish passport in order to be able to exit Poland.

Non-EU family members on the other hand have been facing increasing problems. 90%

of all entry enquiries concern the rights of non-EU family members travelling with their EU

family member or joining an EU migrant in their host EU country.

The main problems that non-EU family members have reported facing when travelling to,

and within, the EU are:

Freedom of Movement in the EU: A Look Behind the Curtain

 Difculty obtaining clear and correct information on the specic entry rules that ap-

ply to non-EU family members from consulates and their visa service providers.

 A visa is required when it should not be:

 from non-EU family members travelling in and out of the Schengen area, who

hold a family member’s residence card issued by an EU country on the basis of

EU law;

 from non-EU family members whose EU residence card will expire less than three

months after their intended date of departure from the destination country.

 Those non-EU family members who do require a visa cannot apply for it in the EU

country where they are visiting or even resident – they are told to return to their

country of origin and apply for a visa from there.

Since January 2015, YEA has received > 500 enquiries evidencing this problem.

The reasons for this are:

 Family members have difculties in contacting the relevant consulate and face long

delays to obtain an appointment;

 No direct access to the consulate of the destination country is possible – family mem-

bers are obliged to use the private visa service providers and thus pay the relevant

fees;

 Consular staff and visa service providers are unaware of, or wrongly apply, EU rules

(e.g. in order to process the non-EU family member’s visa application under EU rules,

Swedish consulates require that the EU family member is resident, or intends to re-

side, in Sweden); and

 Consulates do not accept that the non-EU national is a “family member” of the EU

national (e.g. marriage certicates issued in non-EU countries are not accepted).

The consequences of non-EU family members having to obtain a visa on the same terms as

other non-EU nationals are:

 Family members have to pay visa fees and provide excessive documents (e.g.

proof of accommodation, health insurance, sufcient resources, justication of the

purpose of the trip, proof of return travel);

 Delays in obtaining a visa ( >150 enquiries evidencing delays since January 2015

concern Ireland – citizens have reported waiting up to 2 years for an Irish visa); and

 Family members’ applications are refused on invalid grounds (e.g. visas are de-

nied because the consulate is not convinced the family member will leave the EU

before the expiry of their visa).

Non-EU family members cannot obtain a visa quickly and for free,

despite being entitled to under EU rules.

The Main Findings

A British citizen resident partly in Hungary and partly in Cameroon wished for his Cameroo-

nian wife to visit him in Hungary. She applied for a short-term Schengen visa and provided

all required documentation as well as a letter from her husband explaining the reason for her

application and making express reference that it was made on the basis of EU rules that apply

to family members of EU nationals.

The citizen writes:

“Despite the above, the Cameroonian employee dealing with the visa application insisted that

my wife complete the fields on the Schengen Visa application form not required by EU citizen

family members, provide evidence of her own employment and bank statement and pay the

visa fee. It was apparent that the visa application was being treated as an independent appli-

cation as a tourist, not as the family member of an EU citizen. The employee appeared to have

no knowledge of Directive 2004/38. [...]

My wife was requested to return to the consulate 2 days later to collect her passport. When

she collected it, the visa application had been rejected, for the following 2 reasons:

‘The information provided about the purpose and conditions of your intended stay was not

credible’

‘Your intention to depart from the territory of the Member States before the expiry of the visa

could not be ascertained’

There was also a remark – ‘It is assumed here that a covert family reunication is to take place’

[...]”.

(YEA enquiry from February 2016)

Consequences of the Accelerated Procedure not being Applied

to non-EU Family Members

CASE STUDY 1

Freedom of Movement in the EU: A Look Behind the Curtain

250

200

150

100

Excessive documents & Visa fees Refusals on invalid groupsDelays

Number of YEA queries between 01/2015–06/2017

 Original travel documents are withheld (both those of the visa applicant and

the EU family member) – citizens cannot travel during the visa application pro-

cessing time.

 Long term or family reunification visas are required when a short term visa

should be sufficient. The application process for such visas is more cumber-

some. This is a particular problem in France and Germany, where family mem-

bers who enter on a short term visa face difficulties in obtaining residence

documents.

 Visas are issued with limited duration when family members have a right to

stay with their EU family member for 3 months unconditionally.

 Unprofessional conduct by consular staff.

 Detention and delays at the border because border control officers were not

aware of, or did not apply, EU rules.

 Denied entry/exit on grounds that do not relate to public policy/security.

Obstacles to Residence

Diculties obtaining a residence

document

While for many citizens obtaining a residence document in their host EU country is a

fairly simple matter, especially when they are moving to work and have a permanent

work contract to show, there are still many who face problems. Those most likely

to face problems obtaining a residence document for themselves and their non-EU

family members are the self-employed, part-time and interim workers, jobseekers,

students, and the self-sufficient (including cross border workers).

Delays in processing applications and issuing residence documents is a major problem:

 215 enquiries were received between January 2015 and June 2017 in which

citizens complain about not getting their residence documents in time;

 Ireland, Sweden and the UK accounted for > 1/2 of these delays;

 Non-EU family members are the most affected and often have to wait longer

than six months for their residence card.

Restrictive practices by national

authorities

While citizens face difficulties exercising their residence rights in many EU countries,

the following three examples of restrictive practices reported in YEA enquiries stand

out as they affect many mobile EU citizens.

esidence rights is an issue that has always been of great concern to citizens in the

EU. In 2017, enquiries relating to residence rights in the EU had exceeded 20%

of all enquiries. Citizens are particularly concerned about the rights of their non-EU

family members, with such enquiries comprising over 1/3 of all residence enquiries.

The Main Findings

1. The personnummer saga in Sweden

Sweden, like many other countries, has a population regis-

ter. Everyone who is resident in Sweden must be registered

in this registry and have a personal identication number, the

personnummer. The personnummer features on all Swedish

ID cards and is given to EU citizens in the form of a separate

card. Many EU citizens and their family members are not

able to obtain a personnummer in Sweden and without it many essential public and

private services are inaccessible.

Since 2015, more than 200 citizens have contacted Your Europe Advice reporting prob-

lems they face as a result of not having a personnummer. EU migrants and their family

members are denied a personnummer if:

 they cannot show that they will be resident in Sweden for > 1 year (e.g. job-

seekers, interim workers, students);

 they are not working and cannot provide an S1

Form (which is evidence that their home EU country

will cover their healthcare costs in Sweden).

 The European Health Insurance Card is not

accepted.

 Private health insurance, although technically an alternative, is also, in practice,

not accepted – there is no private health insurance product available on the

Swedish market that can meet the requirements of the Swedish authorities.

Many EU countries require proof of residence in another EU country in order to issue an

S1 Form. Since EU citizens no longer need to register with the immigration authorities in

Sweden, the personnummer is the only ofcial proof that they reside in Sweden.

If EU migrants have no personnummer they often cannot get an S1 Form from their

home country => no S1 Form, no personnummer!

Catch 22

An Italian national writes:

“I have moved to Sweden as a person with sufficient resources. I have given an extract of my

savings, a document to the social board saying that I will work as psychologist for a training

that I have already found with the unemployment agency, I speak also Swedish, level B. I

still miss a S1 document in order to obtain my personal number, this document would show

that I am insured. I cannot obtain it in Italy as I am not employed. I do not know how to solve

this situation. How can I explain to the tax agency that in Italy it is impossible to obtain it

without work? I have the European Health Insurance card but it is not valid for those working

permanently here”.

(YEA enquiry from March 2017)

CASE STUDY 2

Freedom of Movement in the EU: A Look Behind the Curtain

2. The residence cards problem in France

There is no requirement for EU migrants resident in France to regis-

ter with the national authorities, but French law provides that they can

apply for a residence document if they wish and EU law gives them the

right to obtain one after they have lived in France lawfully for ve years or more.

However, French prefectures often refuse to issue residence documents

to EU nationals, even to those who have lived in France for more than ve

years. The reason given is that EU nationals are not required to have one.

A UK national, who is self-employed in France, writes: “The Caisse d‘Allocation Familiales

in France have told me my rights will stop in France as of the 1st April 2016. I received this

news today the 29/03/2016 even though the letter is dated the 16 February 2016.

They ask for a Titre de séjour‘ that the prefecture tells me is not necessary as I am an EU citizen.”

(YEA enquiry from March 2016)

Since the Brexit referendum vote, UK nationals have been particularly affected

– they have been told to await the outcome of the Brexit negotiations before ap-

plying for residence documents.

BUT

EU citizens are being asked for a residence document in order to:

 continue receiving family or disability benets;

 continue receiving the guaranteed minimum income;

 benet from other public and private services.

3. The non-recognition of foreign marriage

certicates in Spain, France, Italy and Portugal

EU citizens wishing to travel or move to Spain with their non-EU family mem-

bers face difculties applying for a visa or a residence document for their

non-EU family members if their marriage certicate was issued by a non-EU

country. The same problem, albeit to a somewhat lesser extent, is encountered by family

members applying for entry visas for Italy and France, and those applying for residence

cards in Portugal.

The requirements

In order to recognise a non-EU marriage certicate, the immigration authorities or con-

sulates often require that, besides being apostilled and ofcially translated, the certicate

must be:

 registered in the country of the EU citizens’ nationality; and/or

 recent, not > 3 months old.

These additional requirements are not always clearly specified on the immigration portals that ap-

plicants are likely to consult.

CASE STUDY 3

The Main Findings

Similar problems are faced by citizens who have non-EU birth certicates and must rely on them

to prove their family relationship to an EU citizen.

The problem

These requirements add an administrative step that is complicated, costly and some-

times impossible to full.

Registering a marriage certicate in one’s country of origin and obtaining a new, more

recent marriage certicate from the non-EU issuing country, may take several months.

Travel to the relevant country may be necessary and the costs may not be insignicant.

In some cases, citizens report that they are given only 10 days to provide the relevant documents,

otherwise they risk having their application rejected.

It may even be impossible to obtain the relevant documents as some countries (e.g. the

UK) do not have a registry of marriages, or in the case of same-sex marriages, because

the EU citizen’s country of origin does not recognise them.

The consequences

Non-EU family members whose marriage to an EU national took place outside the EU are

not recognised as a “family member”, thus:

 they cannot obtain a visa quickly and for free in order to travel to the EU country;

 if they managed to enter the EU country of destination, they face signicant delays

obtaining a residence card;

 in the meantime, they cannot work; and

 they fear that they must return to their country of origin to get a new visa

if their residence application cannot be completed before their short term

visa expires.

 same-sex spouses are not considered as family members, even though the EU

country of destination recognises same sex marriages.

“I am Hungarian holding also Serbian passport. I am working in Spain. My husband is Serbian

(non EU). We got married in Serbia. They told us we need Serbian marriage certificate to be rec-

ognised in Hungary in order to get working permit for him in Spain [...]. To get it we need to wait

minimum 6 months (information from official Hungarian Ministry web page we got from Hungarian

embassy in Madrid), but I know people waiting already 1.5 years with no answer from Hungary.

My husband has his date for visa application on June 9. We got it couple of weeks ago and it is

extremely difficult to get date. I am afraid that we will not have this document till then and that

we will have to ask for a new appointments for him. In that case it would be earliest in August.

The other problem is that Spain recognizes certificates for 3 months from issuing date and

that we have to apply for appointments and certificate again if we don‘t get certificate on time.

Is there any possibility to apply with Serbian marriage certificate translated and approved in

Spanish [embassy] in Belgrade since we are both holding Serbian passport. Is there any other

solution for this situation”.

(YEA enquiry from April 2016)

CASE STUDY 4

Freedom of Movement in the EU: A Look Behind the Curtain

Conclusion and Recommendations

lthough freedom of movement in the EU has come a long way and EU citizens

generally move and reside freely in the EU, obstacles still remain. EU nationals

with non-EU family members often see their family members’ entry rights not being re-

spected. Moreover, EU nationals wishing to settle in another EU country are not always

able to obtain a residence document easily. Those without a long term work contract

are more likely to face difficulties. Residence documents are still often made a prerequi-

site to completing administrative formalities and accessing public and private services.

More needs to be done at EU and national level in order to achieve true freedom of

movement in the EU.

On the basis of the evidence at hand, the following FIVE ISSUES that affect the largest

number of mobile EU citizens and their family members are in most need of action at

EU and national level:

1. The personnummer problem in Sweden – this problem has existed for over 10

years. Action taken at EU and national level to date has not been sufcient to remedy it.

On the contrary, the increasing number of citizen enquiries that YEA continues to receive

on this issue indicate that this problem has worsened since 2015.

Action needed:

 The Swedish tax authority, which issues the personnummer, should:

 accept the EHIC as evidence of comprehensive healthcare cover; and

 relax the excessive requirements for private health insurance so that pri-

vate health insurance policies taken out by citizens can, in practice, be ac-

cepted as evidence of comprehensive healthcare cover in Sweden.

Alternatively:

A system should be put in place whereby EU migrants can contribute to the Swedish

national healthcare system in a proportional way and be able to rely on this as evidence

of comprehensive healthcare cover without having to provide an S1 Form or any other

evidence of healthcare cover.

 Swedish legislation (§3 of the Swedish Population Register Law 1991) that provides

for the obligation to register in the population registry if one intends to reside in Swe-

den for at least one year, should be amended to allow for the possibility to register

immediately, or at least within 3 months. This would bring the concept of residence

in the Swedish legislation in line with that in EU law (Directive 2004/38).

Alternatively, if Swedish legislation remains unaltered,

 the Swedish tax authority should accept a letter of intent from the citizen as

evidence that they are likely to be resident in Sweden for at least a year; and

 the temporary personal number, currently issued to those who can demon-

strate an intent to stay in Sweden for six months, should be issued in the same

format as the regular personnummer, to ensure it is accepted by the IT systems

of public and private service providers and should be provided to all temporary

residents irrespective of their intended length of stay.

The Main Findings

2. The residence card problem in France – this has been a problem for approximately

3-4 years and has worsened since the Brexit vote, with UK nationals particularly af-

fected.

Action needed:

 an investigation must be carried out to determine the reason behind the prefectures’

frequent refusal to issue residence documents to EU nationals, despite French and EU

law allowing EU nationals to obtain such documents. (Citizens’ enquiries received by

YEA have not provided an indication of the possible reasons behind this policy). The

prefectures should be instructed to comply with the relevant French and EU legislation;

and

 the Caisse d‘Allocations Familiales (and any other government agency applying the

same policy) should be instructed to cease making the payment of benets conditional

upon presentation of a residence document. This is a breach of EU law (Article 25

of Directive 2004/38), thus enforcement action might be considered by the European

Commission, if necessary.

3. The marriage certicate problem in Spain, Italy, France and Portugal

Action needed:

Positive action is required at EU and national level to ensure that:

 only an apostille stamp (or legalisation) and a certied translation should be re-

quired for a non-EU marriage certicate (or other public document) to be accepted as

proof of a family link when non-EU family members apply for entry visas or residence

cards;

 any additional requirements, aiming to establish whether a marriage is genuine,

should only be imposed in cases where there is reason to suspect abuse, not as a

general policy.

4. Excessive delays in issuing residence cards in Sweden, Ireland and the UK

This is a persistent problem that exists in several EU countries, but it is most serious in

Sweden, Ireland and the UK, which account for over half of all citizen enquiries sent to

YEA where this issue has been agged.

Action needed:

While the situation in the UK should be dealt with in the specic context of Brexit, positive

action at EU level is necessary in order to enforce EU law in Sweden and Ireland,

ensuring that residence cards are issued to non-EU family members no later than

six months from the date of application.

5. Excessive delays in issuing entry visas to family members

of EU nationals in Ireland

This is a serious and persistent problem, which accounts for 3/4 of all YEA citizen enquiries

agging the problem of delays in obtaining a visa. According to the Irish Naturalisation and

Immigration Service, the current processing time for most visas is 8 weeks. However, family

members of EU nationals have reported signicantly longer delays.

Action needed:

Positive action is needed at EU and national level to nd a solution that strikes a balance

between preventing abuse and ensuring that EU free movement rules are respected so

that family members of EU nationals are issued entry visas on the basis of an ac-

celerated procedure.

Freedom of Movement in the EU: A Look Behind the Curtain

he right to move and reside in another Member State – enshrined in Articles 20(2)

(a) and 21 TFEU – is very dear to EU citizens

. The number of EU citizens living

and working in another EU country has been increasing steadily, reaching 16 million in

2016

. While such a cross border move goes smoothly for many, there is still a large

number of EU citizens who could do with fewer difficulties

and less discrimination

In the period between January 2015 and June 2017, Your Europe Advice (YEA)

re-

sponded to:

 13,236 enquiries concerning the entry rights EU nationals and their family mem-

bers; and

 13,127 enquiries concerning their right to residence in another EU country.

Regarding entry rights, by far the most questions concern the rights of non-EU fam-

ily members to travel with an EU migrant. Citizens want to know about the visa rules

which apply to non-EU family members and whether their family members are visa

exempt. Family members often face immigration and border control authorities, as well

as air carrier staff, who are either unaware of, or disregard, the fact that EU law grants

such family members special rights when they travel with or travel to join an EU national

in another Member State.

Enquiries concerning EU citizens’ entry rights comprise only a tenth of all enquiries that

relate to entry, which reflects the fact that EU citizens can generally travel hassle free

within the EU. Some obstacles remain, but these are not as numerous as those that are

faced by their non-EU family members.

As highlighted in several Eurobarometers – 71% of respondents to the Flash EB 430 on EU citizenship (Oct.

2015) agree that free movement of people within the EU has economic benets for their country. 56% of respond-

ents to Standard EB (Nov. 2016) considers the free movement of people as being the most positive result of the

EU, 81% support “the free movement of EU citizens who can live, work, study and do business anywhere in the

EU” and 62% have positive feelings about immigration of people from other EU Member States. The vast majority

of respondents to the Commission’s public consultation on EU citizenship (2015) also had a positive view of the

free movement of citizens in the EU – section 2.8 of the Report (http://ec.europa.eu/justice/citizen/document/

files/2015_public_consultation_booklet_en.pdf).

Eurostat – Migration and migrant population statistics (http://ec.europa.eu/eurostat/statistics-explained/index.

php/Migration_and_migrant_population_statistics).

While 64% of respondents to the Commission’s public consultation on EU citizenship mention that they did not

experience difculties when living in another EU country, the remaining 36% that did, report lengthy and unclear

administrative procedures, lack of sufcient information on/or awareness of their rights as the main problems they

faced (see section of 2.5 of the above Report).

One in ve of respondents to the Commission’s public consultation on citizenship have said they were

discriminated on the basis of their nationality, for example, when trying to access public employment services or

the healthcare system, when trying to get their civil status documents accepted or accessing social security and

social and tax advantages.

YEA is an EU advice service on personal EU rights of citizens and businesses which the European Citizen Ac-

tion Service (ECAS) manages under contract with and on behalf of the European Commission (http://europa.eu/

youreurope/advice/).

1. Introduction

Regarding residence rights, the area of most concern to citizens is family rights, com-

prising over one third of residence related enquiries. Most enquiries come from EU nation-

als who wish to have their non-EU family members accompany or join them in another

Member State. Non-EU family members struggle in getting their residence rights recog-

nised and in obtaining a residence document on the basis of EU Directive 2004/38.

Citizens also often enquire about residence formalities, the conditions to their right to

stay in another Member State and the right to reside permanently in another Member

State. While many enquiries are requests for information or clarication of citizens’ EU

rights, many others reveal the obstacles that mobile EU citizens and their family mem-

bers face. In particular, citizens often face signicant delays in obtaining their residence

documents – even up to two years in some cases. They are often required to produce

excessive documentation in order to prove that they have the right to residence and

having their right to permanent residence recognised is also not always easy.

This report outlines the obstacles which mobile EU citizens and their family mem-

bers still encounter today when travelling within the EU and settling in other Member

States. The evidence comes from enquiries citizens submitted to YEA between January

2015 and June 2017. The most ‘interesting’ of these enquiries concerning entry and

residence rights, included in the quarterly feedback reports (QFRs) produced by ECAS

from Q1 2015 to Q2 2017, have been analysed. They bring to light infringements of

EU law by national authorities, gaps and grey areas in EU law and general obstacles to

citizens’ free movement rights.

Freedom of Movement in the EU: A Look Behind the Curtain

2000

1500

1000

500

Visa

exemption

Long term/

short term

visas

Changes

for visas

Excessive

documentation

and refusal

Non-recognition

of civil status

documents

Wrong

entry rules

applied

Travel

documents of

EU Nationals

Other

2015 2016 2017

YEA enquiries on the right to entry, by subtopic,

received from 2015 to 2017

2000

2500

1500

1000

500

Conditions

of the right

to stay

Family

rights

Formalities Premanent

residence

Long term

resident third

country nationals

Equal treat-

ment as legal

resident

Other

2015 2016 2017

YEA enquiries on the right to residence, by subtopic,

received from 2015 to 2017

Obstacles to entry are outlined in Section 2 and obstacles to residence in Section 3.

Section 4 outlines the “grey areas” in current EU legislation that cause most trouble for

mobile EU citizens and their family members, and provides suggestions on how these

could be clarified.

2. Obstacles to Entry

2.1. In a nutshell

By far the most enquiries received by YEA in relation to entry rights concerned entry require-

ments for

non-EU family members

of migrant EU nationals. Citizens struggle to obtain clear

and correct information about entry rules for their non-EU family members, whether online

or directly from consulates or their private visa service providers. In many cases, a visa is re-

quired when family members are visa exempt. Those family members who do require a visa

are sometimes not even able to submit an application. This happens, for example, when

they try to apply in the country where they are legally present or even resident but are told to

apply from their country of origin instead. When applications are accepted, family members’

right to have the application processed for free and quickly, as provided for by Article 5(2) of

Directive 2004/38, is often ignored. They have to comply with all the formalities and provide

the same documents required from non-EU applicants who are not related to EU citizens.

They may experience great delays in obtaining a visa or even have their application rejected

on invalid grounds. Their original travel documents are sometimes withheld during the pro-

cess, leaving them unable to travel. In some cases, family members have been required to

apply for long-term visas, with the added administrative formalities that are involved, when a

short term one should sufce. When visas are issued, they are sometimes limited in duration

to less than three months, for no valid reason, despite the family member’s unconditional

right to remain in the EU with the EU national for up to three months. Moreover, family mem-

bers have not always been treated courteously by consular staff or border control agents,

they have been delayed and detained at the border and, in some cases, they have been

denied entry on invalid grounds. The problems are exacerbated when airline staff do not

apply EU entry rules and deny boarding to family members who have every right to travel.

Regarding EU nationals, while they face signicantly fewer problems when travelling

within the EU, they have, in some cases, been subject to excessive border checks and

identication requirements. In some cases, their national identity cards have not been

accepted as a valid travel document, airlines have imposed excessive requirements on

them, and their own Member State would not allow them to exit when they travelled only

with a passport issued by another Member State. Migrant EU citizens have faced difcul-

ties obtaining or renewing their travel documents in their Member State of residence in a

timely manner, which has affected their travel plans.

2.2. Non-EU family members

2.2.1. The quest for the right information

As the Commission pointed out in its 2009 Communication on Directive 2004/38 (the

2009 Communication)

, “the authorities of Member States should guide the family

COM (2009) 313 nal – Communication from the Commission to the European Parliament and the Council on

guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union

and their family members to move and reside freely within the territory of the Member States.

2. Obstacles to Entry

members as to the type of visa they should apply for”

. Citizen enquiries reveal that

such guidance is not always forthcoming. The websites of consular authorities – which

are applicants’ first point of call – often make no distinction between applicants who

are family members of EU nationals and those who are not. When citizens then get in

touch with the consulates themselves or with their external visa processing centres,

not only are family members of EU nationals not always guided as to the type of visa

they should apply for, they are often given incoherent or incorrect information about the

entry rules that apply to them.

2.2.1.1. Online information sources on entry rules do not distinguish

between family members of EU nationals and other non-EU citizens

A common source of confusion for citizens are national websites outlining entry rules

which do not distinguish between non-EU nationals who are family members of EU citi-

zens and those who are not

. Websites of external visa service providers do not make

this distinction either

. Citizen enquiries sent to YEA reveal that visa applicants are of-

ten confused about which entry rules apply to them or may be completely unaware of

their rights under EU law. Thus, they end up applying for a visa on the same terms as

other EU nationals who are not family members of EU citizens, even though they should

be able to do so on more favourable terms or may even be visa exempt.

2.2.1.2. Confusing or incorrect information given by national authorities

Citizens also report struggling to obtain clear information on entry rules for their non-EU

family members when contacting consulates directly. They are often given information

which is confusing

or even incorrect

. Citizens who are visa exempt have been told

Par. 2.2.1 of the 2009 Communication.

Cyprus: An EU national wishing to travel to Cyprus with his non-EU children was confused about visa formalities

for the children. The website of the Cypriot consulate in the UK does not make a clear distinction between non-EU

family members of EU nationals and other third-country citizens. Citizens wishing to travel to France, Spain and

Ireland reported facing the same problem.

Citizens reported this problem when reviewing the online information of TLScontact (visa service provider for the

French embassy) in Tbilisi and in Madagascar.

Greece: A Bulgarian citizen who wanted to travel to Greece with his Russian wife received conicting informa-

tion from the Greek consulate in Soa regarding entry rules for his wife – he was initially told that his wife did not

need to obtain a visa in advance and that proof of family relationship and her Bulgarian visa would sufce for the

border crossing. He was later told that his wife had to obtain a regular visa (the accelerated procedure was not

applied) and that she would not be able to obtain a visa at the border as she did not have a Bulgarian residence

permit. The citizen risked not being able to obtain the visa in time for travel. Spain: The Spanish consulate in Aus-

tralia does not seem to be aware of how Directive 2004/38 should be applied to non-EU family members of Cyp-

riot nationals. In this case a Cypriot national resident in Australia intends to move to Spain with his non-EU wife to

take up a teaching job there. The wife should have been issued a Schengen visa quickly and for free on the basis

of Art. 5(2) of Dir. 2004/38. Instead, the consulate purported to charge a fee and suggested that because he is a

Cypriot national and not a national of a Schengen country, that the wife could not benet from the free movement

rules. Further citizen enquiries revealing similar problems concerned Spain, Greece, Croatia, UK, Germany.

Finland: The Finnish authorities required a non-EU family member to apply for a residence permit rather than an

entry visa. Portugal: A non-EU family member of a Spanish citizen, with a UK residence card, was informed by a

border control ofcial that this card would only permit entry to Portugal for 5 days if she did not have a Schengen

visa; Italy: The American wife of an Irish citizen wanted to obtain an entry visa to join her spouse resident in Italy,

after having previously resided for 90 days in Portugal and Italy. The Italian consular authorities in the US informed

her that she had to wait 90 days before returning to the EU and had to re-enter on a tourist visa, which would

only allow her to stay another 90 days in EU. The authorities seemed unaware of the citizen’s right to join her EU

husband pursuant to Directive 2004/38/EC.

Freedom of Movement in the EU: A Look Behind the Curtain

they needed a visa

. Those who did need a visa were told they did not

. In some

cases, this meant that travel plans were jeopardised and excess costs incurred

. Fam-

ily members who require a visa but apply for the wrong type of visa are often not guided

as to the type of visa they should apply for

. Family members have also been told that

they must travel with the EU citizen at all times and were not informed of the possibility

to join their EU family member in their host Member State

An added complication is seen in France and Germany, which, as explained in sec-

tion 2.2.6 below, (wrongly) require non-EU family members to obtain a long term visa

when they intend to settle there. Citizens have reported contacting the consulates of

these countries to enquire about travel rules only to be told that a visa was not neces-

sary (because they were visa exempt under Schengen rules for short term entry) or that

they should apply for a short term visa. Upon arrival in the country, they were unable to

obtain a residence card as they did not have the required long term visa and were told

to return to their country of origin in order to obtain a visa there

2.2.1.3. Visa service providers are ignorant of EU family members’ rights

and misinform citizens

When Member States outsource part of the visa application process to external service

providers, these service providers are often ignorant of the rules that apply to family

members of EU citizens. Citizens report being misinformed about the rules and told

that they must follow the regular visa procedure that applies to non-EU applicants

A visa exempt spouse of a UK national who wished to travel with her spouse to Spain via Zurich, was told by

the Swiss authorities that she had to have a Schengen visa issued by Spain. Austria: The Austrian Consulate

in Bucharest told a visa exempt family member that he would need a visa to enter Austria. France: The French

consulate in London is not recognising that a UK issued Art.10 residence card exempted the spouse of an Irish

national from the visa requirement for France; Bulgaria: The Bulgarian consulate in the UK told a non-EU family

member of a Latvian national that she will require a visa despite holding an Art. 10 residence card issued in the

UK; Greece: Greek embassy in London tells a visa exempt family member that she will need a visa to travel to

Greece. A similar issue was reported in Ireland.

Italy: The Italian authorities wrongly advised an Italian citizen, resident in Italy, that his non-EU family member who

held a residence document issued on the basis of Italian national legislation can travel with him to the UK without

an entry visa. Poland: The Belarusian wife of a Cypriot national, who held a residence document on the basis of

Cypriot law, wanted to travel to Poland. The Polish consulate wrongly advised that she did not need an entry visa,

even though Cyprus is not a Schengen country and her permit was not issued on the basis of Directive 2004/38.

Hungary: The non-EU wife of a British citizen holding a residence card issued by the UK was wrongly advised

by the Hungarian authorities that she could benet from the visa exemption. However, when she tried to check in

at the airport, she was denied boarding because of the missing visa.

Italy: A UK citizen resident in Italy wants his Pakistani wife to join him. She applied at the Italian embassy for

a family reunication visa. The Embassy should have advised that that was not necessary, and that a short-stay

entry visa would sufce – for which only the passport and proof of a family link with EU citizen (marriage certicate)

are necessary. Instead, the Italian Embassy required them to register the marriage in Italy (which is a very long and

costly process) and asked for an original and attested “declaration of hospitality”.

UK.

France: A Portuguese national requested a long term visa for her Tunisian spouse but the Tunisian consulate only

issued a short term one. He was later unable to obtain a residence card in France on the ground that he did not have

a long-term visa. France: A US spouse of a German national wishing to stay in France for 7 months applied for a long

term visa in the US – the French consulate in the US told him he did not need a visa, but when applying for a residence

card in France he was told he needed a long term visa in order to obtain a residence card and that he had to go back to

obtain one from the US. France: The French consulate in Philippines required the non-EU wife of a Romanian national

to provide return tickets in order to be issued with a short term Schengen visa, she is not given information on how

to join her husband and not given the option to apply for a long term visa – even though this will (wrongly) be required

when applying for a residence card in France. Germany: A German citizen and her Mexican husband who wanted

to settle in Germany were told by the German Consulate in San Francisco that he could enter Germany visa-free (as

Mexicans are visa exempt under Schengen rules for short term entry). The husband could not register in Germany and

was forced to go back to Mexico and apply for the long term visa.

2. Obstacles to Entry

who are not related to EU nationals. This problem has arisen in particular when citi-

zens contact TLS contact, concerning visa applications for France

, and VFS Glob-

al, regarding visa applications for Germany

, France

, Spain

, Sweden

, Italy

and

A Norwegian enquirer mentioned that TLScontact (Tunisia) was ignorant of the fact that Norway is an EEA

member State and that consequently the special rights for family members of EU/EEA nationals under Directive

2004/38/EC applied in the case of her Tunisian husband; A UK national (moving to France from China), mentioned

in their enquiry to YEA that TLScontact (China) would not allow his Indonesian spouse to apply for a visa on the

ground that her Chinese visa will expire earlier than 6 months at date of application. TLS was ignorant of the fact

that she can apply for a short term visa even if the intention was to move permanently to France; Another UK en-

quirer, who is moving to France for work purposes, reported that TLScontact (in Agadir, Morocco) showed agrant

ignorance of the special rules applying for family members of EU citizens, her Moroccan husband wishing to join

her in France was treated just like an ordinary visa applicant as far as documentation required, visa fee, access

to consular services directly are concerned and was threatened with visa denial. The UK spouse could not get

through to the French embassy in Agadir and other embassies were unable to help; Another UK national reported

that TLScontact (Moscow) informed his Russian wife that the French consulate does not accept marriage to an

EU citizen as a route for obtaining a visa and she has to submit the full list of documents; The online information

of TLScontact (Antananarivo, Madagascar) does not make any special mention of family members of EU citizens

when it comes to short term visas, contrary to long term visas. Thus citizens are led to believe that the only op-

tion for family members is to apply for a long term visa for France; The spouse of a French national, who has an

Article 10 residence card, was told by TLScontact (London) that he must provide a “livret de famille” attesting the

marriage, otherwise a visa would be required and a service fee charged.

VFS India.

An EU national mentioned to YEA that VFS (Mumbai, India) told his family members applying for a visa

that they know nothing about the directive, nor care about it; A UK enquirer resident in France said that VFS

(India) advised his parents that they needed to contact the UK consular services. The UK consular services

refused to see the citizens, who were not sure about how to proceed.

A UK enquirer mentioned that VFS in Vietnam misinformed his Vietnamese wife, telling her that the visa

fee waiver did not apply to her. She was told that “Although the U.K is not officially out of the EU, there is a

new law that family members of British nationals have to pay [a] visa fee and will be considered as any other

applicant”. She could not obtain the correct information from the Spanish embassy; The Spanish consulate

in Cairo, Egypt, refused to process the visa application of the Egyptian wife of a UK national, sending the

citizen to VFS, who in turn refused to apply the accelerated procedure and applied a fee; VFS (UK) did

not apply the Article 5(2) accelerated procedure to the dependent mother of the UK national who wanted

to travel to Spain together with her son – they are told that she would only be entitled to apply as a family

member if she had a ‘family member’s residence card’; A French national resident in the UK, who wished for

his Peruvian spouse to join him in Spain where he will be for a conference, was given conflicting information

by VFS (UK) as to entry rules to Spain for his wife.

The service provider for the Swedish consulate in Turkey (VFS) misinformed an Iraqi national, who wanted

to join his Norwegian wife in Sweden saying that he needed to have a Turkish residence permit to apply for

a visa. The Swedish government’s website states that applications from Iraqi citizens should be made to the

Swedish embassies in Turkey, Jordan or Iran (http://www.swedenabroad.com/en-GB/Embassies/Baghdad/

Visit-Sweden/Visa-for-visiting-Sweden/).

VFS (Nairobi, Kenya) required a UK national to provide an invitation letter so that he and his Kenyan wife

can travel to Italy.

Freedom of Movement in the EU: A Look Behind the Curtain

 “I am an EU citizen currently working and living in Sulaymaniyah, Iraq, along with my

family. On 16-17 November 2016, my Iraqi spouse, accompanied by myself and our British

son, visited Erbil, Iraq to apply for Schengen visa [for Austria] through [...] VFS Global. We

[relied] on the reply email received from [the] Austrian Embassy in Amman, Jordan, stating

that she can apply for the visa in Erbil.

However, she was not allowed by the visa center staff members to submit the visa applica-

tion, because she is a spouse of an EU citizen. She was rather advised to visit other coun-

tries to apply for Schengen visa, while those countries require their own entry visa to visit.

All Iraqi citizens and residents can apply for the visa at the visa application centre in Erbil,

except for family members and spouse of EEA citizens who are not allowed by the center

to submit the application.”

Austria

. Other service providers for Germany

and Finland

have also been the sub-

ject of complaints. 

2.2.2. A visa is required when it should not be

Article 5(2) of Directive 2004/38 provides that possession of a valid Article 10 residence

card shall exempt non-EU family members from the visa requirement. The Court of Jus-

tice of the EU has confirmed this in Case C-202/13 McCarthy (on 18 December 2014)

and clarified that the visa exemption also applies when travelling to the EU national’s

country of origin

Despite this, citizen enquiries reveal that the visa exemption is not always applied to

non-EU family members who have been granted a residence card in another Member

State. While this is generally not an issue within Schengen, it is a problem when travel-

ling in and out of the Schengen area.

In Malta, Article 5(2) has not been properly transposed into national legislation

and thus

only residence cards issued by the Maltese authorities exempt the family member from

the visa requirement.

In other Member States, while the visa exemption may be applied to the non-EU

family members of other EU nationals, it is not applied to the non-EU family mem-

bers of returning own nationals. Several enquiries reveal that there is confusion or

ignorance of the McCarthy case among national authorities regarding the applica-

tion of the Article 5(2) visa exemption to the non-EU family members of EU nation-

als who reside abroad and travel back to their own Member State. This is a signifi-

cant issue in the UK and Ireland where national legislation does not allow for the

possibility to apply the visa exemption to non-EU family members of own nationals

See the case study.

A German national wishing to obtain a Schengen visa for her non-EU spouse was told by WorldBridge

(Qatar) that a service fee as well as a fee for the visa will apply.

Gerry’s (Pakistan) rejected the application of a Pakistani spouse of a Dutch national because they did not

fill in all questions on the application form. They seemed unaware of the accelerated procedure that applies

to family members.

Par. 41-42 where the Court held that “…there is nothing at all in Article 5 indicating that the right of entry

of family members of the Union citizen who are not nationals of a Member State is limited to Member States

other than the Member State of origin of the Union citizen. Accordingly, it must be held that, pursuant to

Article 5 of Directive 2004/38, a person who is a family member of a Union citizen and is in a situation such

as that of Ms McCarthy Rodriguez is not subject to the requirement to obtain a visa or an equivalent require-

ment in order to be able to enter the territory of that Union citizen’s Member State of origin”.

The Free Movement Order (Subsidiary Legislation 460.17, LN 191 of 2007), Article 3(2) provides that “[...]

family members who are not nationals of a Member State shall be required to have an entry visa, which shall

be issued free of charge as soon as possible and on the basis of an accelerated procedure, unless they

are already in possession of a valid residence card [...]”. “Residence card” is defined in Article 2 as “a card

issued to a family member or other family member who is a third country national in accordance with article

7 as proof of the holder’s right of residence in Malta as at the date of issue”.

In the UK the Immigration (European Economic Area) (Amendment) Regulation 2015 SI No 694, which

came into force on 6 April 2015 following the McCarthy judgment, allows family members of EU nationals

who hold an Article 10 residence card issued by another Member State to enter the UK without need-

ing an entry document. However, this visa exemption has not been extended to family members of UK

nationals who reside abroad. (See par. 10 of the instructions to Border Control officers in Annex A of

the following document: https://www.whatdotheyknow.com/request/254330/response/629766/attach/2/

FOI%2034444%20response.pdf). This issue features consistently in UK related enquiries sent by citizens

to YEA – more than 90 enquiries bringing this particular problem to light have been received since 2015.

Family members of dual UK/EU nationals have also been affected by this. Moreover, despite not needing to

obtain an entry document in the first place on the basis of EU law, family members of returning UK nationals

have been denied EEA Family Permits or have even been denied entry at the UK’s borders. In Ireland, the

relevant legislation – S.I. No. 473/2014 – Immigration Act 2004 (Visas) Order 2014 and S.I. No. 548/2015 –

2. Obstacles to Entry

In several other Member states, non-EU family members of returning own nationals

are required to obtain a visa when they hold an Article 10 residence card issued in the

UK – the reason often given is that the UK is not part of the Schengen area

. There is,

therefore, confusion around the distinction between the Schengen acquis and Article

5(2) of Directive 2004/38 (pursuant to which the visa exemption applies EU-wide) and

ignorance of the interpretation given to this Article by the CJEU in McCarthy

Moreover, visa exempt family members have not only been required to obtain a visa, but

have even been denied the right to travel with their EU family member altogether, on the

ground that their residence card expires in less than three months from the intended date

of departure

. This arbitrary requirement is contrary to these citizens’ free movement

rights under Directive 2004/38 – they cannot be required to show evidence of intended

departure. It also goes beyond what is permitted under the Schengen rules, where the 3

month validity requirement applies to the non-EU national’s passport, not their residence

document

. A striking example comes from Cyprus where the Ukrainian wife of a Cypriot

national resident in the UK could not travel to Cyprus with her husband even though she

held an Article 10 residence card valid untill 2 months after the intended date of return and

her application for a permanent residence card was pending: 

European Communities (Free Movement of Persons) Regulations 2015 – is phrased in terms whereby only

family members of other EU nationals can benefit from the visa exemption. As a result, non-EU family mem-

bers of returning Irish nationals are required to get a visa for Ireland, the same way as if the Irish spouse was

resident in Ireland. (See: http://www.citizensinformation.ie/en/moving_country/moving_to_ireland/rights

_of_residence_in_ireland/residence_rights_of_family_members.html and http://www.migrantproject.ie/in-

dex.php/returning-to-ireland/residency-information). For example, in one case the Egyptian husband of an

Irish national resident in Hungary was told by the Irish embassy in Budapest that he would require a visa

despite holding an Article 10 residence card. In another case, the Filipina wife of an Irish national resident

in Cyprus was required to get a visa despite holding an Article 10 residence card. The Citizens Information

Phone Service in Ireland (0761 07 4000) have also confirmed to YEA that non-EU family members of Irish

nationals would indeed require a visa for Ireland, despite holding an Article 10 Residence card issued in

another Member State.

Portugal: An Indian spouse of a Portuguese national resident in the UK tried to enter Portugal with his

Portuguese spouse and was told his Article 10 UK residence card was not sufficient and that he should

have obtained a visa; Bulgaria: The Bulgarian consulate in the UK tells a non-EU family member of a Latvian

national that she will require a visa despite holding an Art. 10 residence card issued in the UK; Austria: The

Austrian authorities inform an Austrian national that his non-EU wife would need an entry visa each time

she travels back to Austria with him if they relocate from Austria to the UK; Germany: The German border

control/police require the Russian wife of a German national to obtain a visa at the border despite holding

an Article 10 residence card from the UK, on the ground that the UK is outside the Schengen area and

that the Directive 2004/38 does not apply as regards returning to one’s own country; Slovakia: A non-EU

partner of a Slovakian national is told by the Slovakian consulate in London that he will need a visa to travel

to Slovakia with his Slovakian wife despite holding an Article 10 residence card issued in the UK; Poland:

A Ukrainian wife of a Polish national was required to obtain a visa to enter Poland with her husband despite

holding an Art. 10 residence card from the UK on the ground that the UK is outside the Schengen area and

thus cannot rely on her UK residence card to travel in Schengen.

This issue has also arisen with Cyprus, which is not part of the Schengen area. The Cypriot consulate

in the Hague required a non-EU registered partner of a Cypriot national to obtain a visa to travel with his

partner to Cyprus, even though he held a permanent EU family member’s residence card issued by the Bel-

gian authorities. (Cyprus recognises registered partnerships as equivalent to marriage irrespective of sex.)

Spain: A non-EU wife of an Irish national resident in the UK, who is visa exempt because she holds an Art.

10 residence card, applied for a visa but was refused a visa for Spain on the ground that her UK residence

permit would expire in less than three months; Spain: the Spanish consulate in London required the spouse

of a Spanish national who held an Article 10 residence card to obtain a tourist visa; Greece: A dual Cypriot/

Greek national resident in Cyprus wants to travel to Greece with her Egyptian husband who holds a Cypriot

residence card – it is not clear if it is an Article 10 residence card or one issued on the basis of Cypriot law.

The Greek authorities require the husband to obtain a visa and in order to do so he must have a Cypriot

residence card which is valid for at least 3 months from the date of departure from Greece.

Article 6(1)(a)(i) of Regulation 2016/399 (Schengen Borders Code).

Freedom of Movement in the EU: A Look Behind the Curtain

Moreover, non-EU family members who hold perma-

nent residence cards pursuant to Article 20 of Direc-

tive 2004/38 are, paradoxically, sometimes required to

obtain entry visas. As explained in section 4.4 below,

this is the result of a restrictive interpretation of Article

5(2) of the Directive by some Member States.

2.2.3. Refusal to process visa

applications

Consulates (or external service providers) sometimes

refuse to accept the visa applications of non-EU family

members. Citizens are directed to a consulate in a dif-

ferent country, which can be very inconvenient, or not

given the opportunity to apply at all. Citizens have no

way of challenging such refusals as they are not given

in writing.

2.2.3.1. Applications are not accepted

in the country of legal presence or

legal residence

Pursuant to Regulation 810/2009 (Schengen Visa Code),

applicants can apply for a Schengen visa in the country

where they legally reside (Article 6(1)) or in the country

where they are “legally present but not residing” if they can

provide a justication for doing so. While it is for the con-

sulate to assess whether the justication presented by the

applicant is acceptable, the Schengen Visa Handbook

conrms it would generally be excessive to require such

applicants to return to their country of origin.

Despite this, when it comes to travel in and out of the

Schengen area, citizens report being denied the op-

portunity to apply for a visa from their country of legal presence

. They are told to apply

COM(2010) 1620.

Denmark: The Danish consulate in London has refused to process a Schengen visa application made by the

Indian parents of a British citizen, who are lawfully present in the UK on a two year visit visa; Germany: The

service provider for the German consulate in the London (VFS), tells the South African wife of a UK national

who is in the UK on a visitor visa, that she must apply for a German visa in South Africa; Spain: The Spanish

consulate in London has informed the mother of a British citizen, who was lawfully present in the UK while on

holiday there, that she was not able to apply for a Schengen visa to travel to Spain because she did not have

a UK residence permit; The consulate also told a Chinese spouse of a UK national, who was in the UK on a

visitor visa, that she must apply from China; and nally, told a UK national that his Filipina wife will not be able

to obtain a visa there unless she has a UK residence permit. The Spanish consulate in Thailand refused to allow

the family member of an EU citizen, who is lawfully present in the country on a six month sabbatical, to apply for

Schengen visa; Several other cases were reported in Spain; Malta: The Maltese consulate in London refused

to process visa applications from non-EU family members with a valid UK visa unless they have a UK residence

card. Belgium: A family member’s application was refused because her UK visa would expire in less than 90

days, the citizen was told to apply from her home country; France: The French consulate in the UK refuses to

accept a visa application from the Russian parents of a UK national who are in the UK on a visit visa and from

the Tunisian husband of a Greek national who is lawfully present and is awaiting the issuance of his residence

card. Portugal: a stepdaughter of a British citizen could only apply for a Schengen visa at the Portuguese con-

sulate in the UK if she had an EEA Family Permit. The citizen was informed by the Portuguese consulate that if

she only had a regular visa then she would need to apply for a Schengen visa in her country of origin, Thailand.

Several other cases were reported in Malta, Sweden, Belgium, France, Finland.

2. Obstacles to Entry

 “My wife and I have booked tickets to

travel together to Cyprus [...]. As her UK

Residence Card of a Family Member of an

EEA national does not expire until [...] 2

months after we plan to return back to the

UK, I thought she would be able to travel

with me to Cyprus without a problem.

However, according to the website of the

High Commission for the Republic of Cy-

prus to the UK*, her UK Residence Card

of a Family Member of an EEA national

must be valid for at least 3 months at the

time of departure from Cyprus. I called the

High Commission and I was told that she

cannot travel to Cyprus with me without

a UK Residence Card of a Family Mem-

ber of an EEA national with an expiration

date at least [three months from the date

of departure]. I asked them whether she

can be issued a Cypriot visa to cover at

least the duration of our trip and I was told

that one of the Cypriot visa requirements

is “A United Kingdom residence permit

(or relevant visa) valid at least for three

months after departure from the territory

of the Republic of Cyprus” (see the same

website). So getting a Cypriot visa is not

possible.”

http://www.mfa.gov.cy/mfa/HighCom/london.

nsf/All/C5BC5D60E65345B280257BCD00401B

F1?OpenDocument

from their country of origin instead, even when doing

so would impose a disproportionate burden on them.

In some cases this seems to be due to a general policy

(rather than a case by case assessment) and affects

mainly non-EU family members lawfully present in the

. 

Even those family members who have come to stay and

are awaiting the issuance of their residence card have

been affected

. In some cases citizens already residing

lawfully in a Member State have been denied the oppor-

tunity to apply from their country of legal residence

2.2.3.2. Refusals to process the visa

application with no opportunity

to apply elsewhere

Some family members of EU citizens have not been

able to lodge their application or been given the possi-

bility to reapply or apply elsewhere for various reasons,

such as:

 their residence permit was a paper document and not a stamp in their passport

;

 they had a prior criminal conviction

;

 there was insufficient time to process their application

;

Malta, Spain, France (ibid) and Italy e.g. A UK citizen was told that his Filipino parents, on a visit visa to

the UK, should go back to the Philippines to apply for a visa for Italy and that only UK residents can apply

for a visa in the UK.

France (ibid); Croatia: The Russian spouse of a French national, both living in Norway, nd that she cannot

get a visa to travel with her husband to Croatia from the Croatian embassy in Oslo, because her Norwegian

residence card is expired and is in the process of being renewed. She is told to apply from her home country,

Russia. The fact the she has a receipt of application for renewal of her residence card will not do, and there

is no sign that they will accept other factual evidence of her lawful residence in Norway; Spain: The consu-

late in France refused to accept the application of a non-EU family member who had applied for a residence

card in France on the ground that she only held a certicate of application while awaiting her residence card.

Germany: The German embassy in Bucharest informs the Turkish spouse of a Romanian national who is

moving to Germany to start a job, that he can only obtain a visa for Germany from Turkey and that he must

apply for a family reunification visa; Germany: A Serbian spouse of a Bulgarian national, with permanent

resident status in Bulgaria, needed to apply for a type D visa in order to work in Germany. The German

consulate in Sofia refused to process his application and directed him to the German consulate in Belgrade.

A similar case was reported concerning the German consulate in Sweden; France: The consulate in Lon-

don refused to process the application of a Tunisian, husband of a UK national, on the ground that his UK

residence permit is a paper document and not a stamp in his passport.

The Commission in its 2009 Communication clearly specifies that “the residence card must be issued

as a self-standing document and not in the form of a sticker in a passport, as this could limit the validity of

the card in violation of Article 11(1)” yet some YEA enquiries revealed that French consulates refused to

process a visa application on this ground.

The Finnish authorities informed the Nigerian de facto partner of a British citizen that he could not apply

for a visa because of a prior criminal conviction in the UK.

A UK citizen and his non EU spouse who wished to travel to Switzerland had been told to purchase

flights as proof of travel plans. The Swiss consulate delayed and eventually refused to process the visa

application on the ground that it could not be done in time. The couple incurred a financial loss as a result

– they had initially paid for a date change and then could not use their flight tickets.

Freedom of Movement in the EU: A Look Behind the Curtain

 “I am British and my husband is a

citizen of the Dominican Republic. He is

currently here in the UK on a family visi-

tor visa as I have just given birth to our

first child. His visa will expire on 6th April

2015. I wish to exercise my treaty rights

and move to Spain so that he may stay

with us. However, the Spanish Consu-

late here in London says that to apply

for the Schengen Visa you must have a

UK resident permit. We cannot afford to

go back to the Dominican Republic in

order to apply for a visa and then come

all the way back to Europe. I would pre-

fer to go directly to Spain from the UK.

From what I have read of the EU law it

appears to be an irrelevant requirement.

Can you please shed some light on this

matter and tell me what we can do?”

 the relevant embassy did not accept responsibility

for processing the visa

;

 their application was previously rejected by their

EU spouse’s home country

;

 the EU spouse was not resident in the country of

destination

;

 their application would definitely be rejected

 the citizens could not provide a certificate from the

EU citizen’s country of origin certifying that they

were married

. 

2.2.4. What happened to the free

accelerated procedure?

Pursuant to Article 5(2) of Directive 2004/38/EC, non-

EU family members of migrant EU citizens, who require

an entry visa on the basis of Regulation 539/2001 and

want to accompany or join their EU family member

in another Member State, must be issued with a visa

under an accelerated procedure and free of charge.

A clear distinction must, therefore, be made between

non-EU nationals who are not family members of EU

nationals and those who are. Whereas the former do

not have special rights to enter the EU, the latter do; therefore, they also have a right

to obtain an entry visa

There is ample evidence to suggest that this distinction is not always made and that

family members of EU nationals who are not visa exempt are given no special treatment

when applying for a visa. YEA has received more than 500 enquiries evidencing this

problem since January 2015.

The non-EU wife of a UK national living in Spain who wished to join her husband in Spain could not ap-

ply for a visa in Kabul, Afghanistan, because both the French and the Spanish diplomatic representations

passing to the each other the responsibility for processing the entry visa.

A Tunisian wife (resident in Tunisia) of a Swedish national (resident in Sweden) was told by the French

and Portuguese consulates in Tunis not to apply for a Schengen visa to join her husband in either of these

countries because Sweden had rejected her family visit visa twice. The Irish embassy in Sierra Leone is

refusing to process the visa application of a non-EU husband of a UK national on the ground that he was

previously refused a UK visa. He is told he must first successfully obtain a UK visa, even though the citizen

does not need to travel to the UK. (The UK visa was previously refused on unlawful grounds and no op-

portunity to appeal was provided).

Swedish and Danish consulates in Islamabad tell a UK national that in order for his Pakistani wife to

obtain a visa to join him there he must first register as resident and she should then apply for a “facilitation

visa”. See also sections 2.2.4.2.1 and 2.2.4.2.5 below.

The Egyptian spouse of a UK national resident in Belgium was denied the possibility to apply for a visa to

travel on holiday to Malta with his wife on the ground that his application would definitely be rejected as he

had never travelled before. He was told he should travel to the UK instead.

See case study. For more on this see section 2.2.4.2.1 and section 3.2.1.4 below and Annex 1.

Case C-503/03 Commission v. Spain (par. 42). See also the Commission’s 2009 Communication, sec-

tion 2.2.1.

2. Obstacles to Entry

 A visa exempt spouse of a UK na-

tional applied for a visa at the Span-

ish embassy in Nicosia – because, as

the couple will be transiting through

Zurich, they were (wrongly) told by the

Swiss authorities that she had to have

a Schengen visa issued by Spain. The

UK national writes “the Spanish Em-

bassy has informed me that they will

NOT grant a visa to my wife unless I can

provide a certificate issued by the British

High Commission certifying that we are

married. The British Government does

not provide such authentication or nota-

rization of marriage certificates. [...] De-

spite providing an excessive amount of

supporting documentation to the Span-

ish Embassy in Nicosia they will not ac-

cept my wife’s visa application either as

an individual or as a person married to

an EU citizen and have stated that they

will REFUSE to issue a Schengen visa

for my wife”.

2.2.4.1. Diculties in applying for a visa – contacting

the consulate/visa centre – getting an appointment

The Commission, in its 2009 Communication, stated that Member States that use ex-

ternal services for processing visa applications must offer non-EU family members the

possibility of direct access to their consulate

. Some MS do not provide for such a pos-

sibility. This has been reported several times in relation to France

and the UK

, but cit-

izens have also faced this issue when trying to obtain a

visa for Spain

, the Netherlands

, Belgium

, Italy

and Germany

. The consequence is that such family

members cannot obtain the visa for free, as the service

providers charge a fee for processing the application,

and, as explained below, may not even be able to apply

on the basis of an accelerated procedure. 

Moreover, obtaining a visa quickly and for free also

means that family members should not have to pay

for “premium” call lines to book their appointment and

must be allocated one without delay

. Citizens have

experienced difficulties in contacting some embas-

sies

or their local visa application center

and de-

lays (of up to 10 weeks) in obtaining an appointment

– when Article 9(2) of the Visa Code allows for two

weeks.

Section 2.2.1, second paragraph of the Communication reads: “Member States may use premium call

lines or services of an external company to set up an appointment but must offer the possibility of direct

access to the consulate to third country family members”. See also the Schengen Visa Handbook (Decision

C (2010) 1620 final) Part III, 3.2 (http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:52009DC0313).

10 YEA enquiries evidenced this.

5 YEA enquiries.

The Spanish consulate in Cairo, Egypt, refused to process the visa application of the Egyptian wife of

a UK national, sending the citizen to VFS who in turn refused to apply the accelerated procedure and im-

posed a fee; BLS International, the service provider for the Spanish consulate in the UK, delayed over 4

weeks processing the visa application of a Turkish spouse of a UK national, withholding the travel document

and provide no information on the reason for delay. No information could be obtained from the Spanish

consulate either. Two more YEA queries were received with similar facts.

The Dutch embassy in Islamabad did not accept an application of a family member of a Lithuanian na-

tional and required him to contact their service provider. The applicant did not receive a response within two

weeks. Another YEA enquiry on similar facts was received.

1 YEA enquiry.

2 YEA enquiries.

Schengen Visa Handbook (Decision C (2010) 1620 final) Part III, 3.2.

Ireland: Four YEA enquiries; Cyprus: One YEA enquiry; Spain: One YEA enquiry; Portugal: One YEA

enquiry; Greece: One YEA enquiry; UK: Three YEA enquiries: The application form for EEA family permit to

enter the UK was not accessible: the official links no longer permitted access to the form; A Belgian citizen

has not been able to contact the UK authorities to obtain information on how to apply for an EEA Family

Permit for her Moroccan spouse. No hotline was available, only appointments.

UK: One YEA enquiry; Italy: One YEA enquiry; Spain: One YEA enquiry.

Spain: 10 weeks; In one case the enquirer reported being told that since it was not possible to obtain

an appointment at the Spanish embassy in time, she should apply via their visa processing centre and pay

the relevant fee; Denmark: 7 weeks; Malta: 5 weeks; Germany: no appointment possible before date of

travel; Italy: the interview was scheduled after the date of intended travel; UK: time needed to obtain an

EEA Family Permit made application negated the purpose of travel; Belgium: no accelerated procedure

available for family members.

Freedom of Movement in the EU: A Look Behind the Curtain

 A British citizen writes:

“I want to apply for a visa for my [Moroc-

can] wife for going with me to France

only for 6 days and when I call the

French consulate in Morocco for an ap-

pointment for the schengen visa of my

wife [...] they say I need [to] go to one

company, the name of it TLS, and when

I call that company they say I need [to]

pay money to get that schengen visa.

So my question is, [is there] any pos-

sibility to get that visa in [the] consulate

of France or [do] I need to [go] to that

company?”

Also, information regarding the status of the visa application can not always be easily

obtained

and citizens have complained about being excessively charged for it

Establishing where to apply for a visa is not always easy, especially when the applicant

intends to travel to several Member States

, or when the Member State they wish to

travel to has no consulate in the country where the applicant resides

2.2.4.2. Embassies do not allow family members of EU citizens to apply

under the accelerated procedure even though they fulll the conditions

Many non-EU family members have reported not being allowed to benefit from the ac-

celerated procedure even though they fulfilled all the conditions in Directive 2004/38.

While the problem sometimes arises from the fact that external service providers are

not aware of the rules, many citizens who have interacted with the consulates directly

have faced the same issue.

2.2.4.2.1. The reasons

There seems to be widespread ignorance of the rules among consulates. Citizens

report being told that “there is no such law as Directive 2004/38”

. When family mem-

bers have expressly referred to Directive 2004/38 to claim their rights, they were either

ignored

or told that it did not apply to them – for example, because their EU spouse

was not a national of a Schengen country

or of the destination country

. The Swed-

ish consular authorities have refused the accelerated procedure to family members on

the grounds that the EU spouse was not resident in Sweden

or could not show an

intention to move there. For example, an Iranian national who was refused a visa to

travel to Sweden with his UK wife quotes the following reply received from a Swedish

consulate in Turkey

: 

Italy: One YEA enquiry; the Netherlands: One YEA enquiry.

UK: the helpline to ascertain the status of their application cost £1.37 per minute.

One YEA enquiry.

Lithuania: There is no Lithuanian consulate in Cyprus and no publicly available information as to whether

another Member State represents Lithuania in Cyprus for the purpose of issuing Schengen visas and no

information on where an application should be lodged. The Lithuanian Consulate in Athens, Greece, has

territorial responsibility for Cyprus. However, unless an application can be lodged remotely, the citizen

would need to obtain a Schengen visa to travel to Greece in order to do so!

One YEA enquiry concerning Sweden and Denmark.

Germany: The German consulate in Cameroon refused to treat a family member’s application on the

basis of EU rules even though the citizen had made express reference to Directive 2004/38 during the

application procedure. The visa was denied grounds which cannot be relied upon in the case of family

members i.e. that the purpose of the trip was not credible and that the intention to leave the territory could

not be ascertained.

Spain: The Spanish embassy in the Dominican republic refused to apply the accelerated procedure to a

Dominican spouse of UK national and his children on the ground that the EU spouse is not a national of a

Schengen country.

Italy: The Italian visa application centre in Vietnam told the Vietnamese wife of UK national that she is not

entitled to the accelerated procedure as she is not a family member of an Italian national.

206327 A family member appealed his visa rejection from Sweden and the Swedish court ruled that in

order for him to be entitled to rely on Directive 2004/38 his Norwegian wife had to be resident or moving

to Sweden.

The same response was given to a citizen in another YEA enquiry. This issue has also been reported as

regards Spain: A UK national resident in Egypt and wishing to move with her Egyptian husband to Spain

was told by the Spanish consulate that she should move to Spain first and register there before her husband

could apply for a visa.

2. Obstacles to Entry

Moreover, while the concept of direct ‘family member’

in Article 2(2) of Directive 2004/38 is fairly straightfor-

ward, citizens still face difficulties proving their family

link. When the family link cannot be proven, the family

members cannot obtain their visa for free nor benefit

from the accelerated procedure provided for in Article

5(2).

This arises in situations where national authorities:

 are ignorant of EU rules as regards who is consid-

ered a ‘family member’ under Directive 2004/38

; or

 adopt a restrictive interpretation of the rules – for

example, the Irish authorities have based “dependen-

cy” on both financial or physical dependence and on

the family member having lived in the same household

as the EU national

; or

 do not accept the evidence of a family link provided

by a citizen

In the latter scenario, citizens who have marriage cer-

tificates issued in non-EU countries have faced problems getting them recognised

when applying for visas to enter certain Member States, even if the certificates were

apostilled (or legalised) and translated. This is a serious issue in some member states

and is explained in more detail in section 3.2.1.4 below as well as in Annex 1. A

common reason for refusing to recognise a marriage certificate is that it has not been

registered in the EU national’s country of origin (even when this is impossible to do)

or that a certificate from the home country attesting that the marriage is still valid has

not been presented. Citizens’ foreign marriage certificates have also been rejected

because the apostille was placed on a certified copy and not the original

, or because

the marriage certificate was not from an EU country

. Visa service providers have

also refused to accept foreign marriage certificates on invalid grounds – for example,

Cyprus: An Irish national with permanent residence in Cyprus wished to have her dependent Syrian

mother in law visit her and her husband in Cyprus. The Cypriot consulate (in Beirut) told her that her mother-

in-law would not be considered as her family member and must follow the lengthy procedure for non-family

members of first applying to the Ministry of Interior for a permit and then, if a permit is granted, applying for

a regular entry visa at the Beirut consulate. The accelerated procedure would not be applied. France: The

French consulate in Cameroon refused the visa application of a Swiss national’s step-child claiming that

Directive 2004/38 did not apply to him; The French embassy in Bangkok denied a visa to a 15 year old step

child of a UK national, on the ground that no proof of dependence or being part of the EU national’s family

was provided; Despite the fact that France recognises civil partnerships of same sex couples as equivalent

to marriage, the French consular services in Cambodia refused to recognise the same sex registered civil

partner of a UK national as a “family member” under EU law and refused to process his application for free

on the basis of an accelerated procedure.

Ireland: The Chinese father of a UK national was required to demonstrate that he was dependent on his

British son and that he had been living with him, before he could be granted a short stay visa for Ireland;

Another enquirer reported that in order to prove a “durable relationship”, the Irish authorities required evi-

dence that the relationship has lasted two years. Three more YEA enquiries with similar facts were received.

Ireland: The Irish authorities insisted that the UK citizen undergo a DNA test before considering whether

to grant a visitor visa to his wife to enter Ireland.

Spain: A UK national and his Kazakh wife wanted to travel to Spain from Cyprus, where they have a

holiday home (in the northern part). The Spanish consulate in Nicosia, Cyprus did not accept an apostilled

copy of their marriage certificate, requiring the original to be apostilled.

See case study.

Freedom of Movement in the EU: A Look Behind the Curtain

 “The consulate’s conclusion is that

to be able to use the freedom of move-

ment as a third country national married

to an EU citizen travelling from a non-

Member State according to the Direc-

tive 2004/38 the third country national

needs to travel together or join the EU

citizen that has an intention to move to

Sweden. Furthermore the Consulate

is under the opinion that the definition

of intention to move Sweden must be

more than an expression of will but

should more consider a work offer or

similar that can show that there is rea-

sonable credibility of the actual intention

to move to Sweden. [...] You can there-

fore not be considered to be affected by

the Directive 2004/38.”

because the marriage certificate was not issued in

the country of destination

. 

Such cases and several others indicate that the ‘real’

reason behind such obstacles to EU citizens’ freedom

of movement could be the desire to hinder or prevent

family reunification. As explained below

, several ap-

plications by family members are refused because the

“intention to depart from the territory of the Member

States before the expiry of the visa could not be as-

certained”. In the case of a Cameroonian wife of a UK

national seeking a visa for Hungary, the refusal letter

contained the remark “It is assumed here that a covert

family reunification is to take place”. This seems to be a particular issue when the EU

citizen and their non-EU family member do not reside in the same country (the non-EU

national residing in their country of origin) and wish to meet in another EU country, usu-

ally for a short visit

2.2.4.2.2. The consequences

As a consequence of Article 5(2) of Directive 2004/38 not being respected by the con-

sular authorities family members are obliged to pay a fee for applying and to complete

all sections of the Schengen visa application form, thus having to provide many unnec-

essary documents. They may also experience significant delays in having their applica-

tions processed and, most importantly, risk having their application rejected on invalid

grounds. When their application is rejected they have no guarantee that the procedural

safeguards provided for in Directive 2004/38 will be respected.

2.2.4.2.3. Excessive requirements and fees

Since family members derive their rights from the mobile EU nationals all they should

be required to prove is that:

 there is an EU national from whom they derive their rights;

 there is a family relationship (and, where applicable, dependency, serious health

grounds, durability of partnership); and

 proof that they will be accompanying or joining the EU citizen in the country of

destination

VFS Global in Doha, stated the Spanish Embassy would not accept the marriage certificate if it had not

been issued by Spain. The couple had to apply for a normal tourist visa.

See section 2.2.4.2.5 below.

For example, Italy: the Italian consulate in Algiers refused to apply the accelerated procedure to a non-

EU spouse of a French national, despite the citizens providing evidence of their family link and copies of

EU Directive 2004/38. They were told that the spouse had no special privileges and had to pay the visa fee

and follow the normal tourist visa procedure; Spain: The Tunisian spouse of a Finnish national wished to

join her husband on holiday in Spain. VFS and the Spanish consulate in Tunis informed her that she had to

follow the regular procedure and pay the fee, despite the citizen referring to Directive 2004/38; Visas were

refused to such family members wanting to meet their EU spouse in Sweden (five YEA enquiries); France

(two YEA enquiries); Malta (two YEA enquiries); Italy (two YEA enquiries); Greece (one YEA enquiry); Spain

(one YEA enquiry); Luxembourg (one YEA enquiry); Austria (one YEA enquiry); France (one YEA enquiry);

Belgium (one YEA enquiry).

See the Commission’s 2009 Communication, section 2.2.1 and the Schengen Visa Handbook, Part III,

3.6.

2. Obstacles to Entry

 An Irish national who married his

Kenyan wife in Kenya writes:

“The Spanish Embassy in Kenya says

they won’t accept visa applications from

spouses of EU citizens unless the mar-

riage certificate is from the EU. I don’t

see a requirement for this in the law as

it just says ‘spouse’ with no qualification

on the definition of spouse. Are they en-

titled to impose this condition?”

As the Commission clarifies in its 2009 Communication: “No other documents such as

proof of accommodation, sufficient resources, an invitation letter or return ticket, can

be required”

Despite this, citizens often report being asked to provide precisely these documents,

as well as to comply with other excessive requirements, such as:

 providing proof that the EU citizen is resident in the host country (by way of utility

bills, employment contract

, etc.);

 the EU spouse having to attend a personal appointment

;

 providing evidence of travel health insurance, valid even up to one year

;

 providing a certificate of non-impediment to marriage

;

 registering their marriage in their country of origin and providing recent marriage

and birth certificates

Moreover, even though Article 5(2) of Directive 2004/38 clearly states that family mem-

bers should not be charged for the visa, citizens report having to pay fees amounting

in some cases to hundreds of euros

. In a few cases, citizens had to pay over 1000

euros

. Where family members are required to apply via a private visa service provider,

they have to pay the relevant service fee, which is added to the fee they have to pay

for the visa, when the accelerated procedure is not applied. Hidden charges, such as

having these extra documents officially translated, often raise the cost further

A total of at least 242 enquiries

, received by YEA in the period between January 2015

to June 2017, demonstrate the lack of compliance with Directive 2004/38 by requiring

excessive documents and a fee for processing visa applications.

Ibid.

France: The French Embassy in the Philippines refused a visa to a non-EU spouse of UK national who

was in the process of moving to and establishing his business in France on the ground that she did not

provide evidence of her spouse being in France or intending to stay there and evidence that she is part of

of his household; Sweden (three YEA enquiries); Spain (two YEA enquiries); Ireland (two YEA enquiries);

Belgium (one YEA enquiry); Italy (one YEA enquiry).

Spain (one YEA enquiry); UK (one YEA enquiry).

Italy: A non-EU national resident in San Marino with his Italian wife was required to provide evidence

of health insurance valid for a year in order to obtain an entry visa for Italy. Also Spain (one YEA enquiry);

Belgium (one YEA enquiry); UK (one YEA enquiry).

Italy: A UK national resident in Italy is told he must obtain a certificate of non-impediment to marriage

(“nulla osta”) from the Italian authorities as a precondition for allowing his Thai spouse to apply for a Schen-

gen visa to join him in Italy.

See section 2.2.4.2.1 above and section 3.2.1.4 below and Annex 1.

Germany: €400 to investigate the authenticity of the marriage in Germany; UK: Six YEA enquirers re-

ported the following fees: €529; €500; €200; €195; €180; €130; France: The Moroccan husband of a

Spanish national working in France, who held a long term residence permit in Spain, was required to obtain

a visa and pay €340 in order to join his wife in France. He should have been visa exempt on the basis of

Article 6(1)(b) of Regulation 2016/399; Spain: The 18 and 20 year old Indian children of a UK national were

charged 154GBP for Schengen visas for Spain and were told they had to pay this fee as they are over 18.

Ireland: A UK citizen resident in Ireland claimed that the Irish consulate in Tehran had requested €12,000

to process his wife’s visa application; UK: The Cameroonian wife of an Italian national who wished to ac-

company her husband to the UK had been required to pay a total amount of €2288 for a visa: €852 as an

“Immigration Health Surcharge” and €1431 for “supporting documentation”.

Ireland: Visa applicants in Pakistan were required to provide their biometric identifiers irrespective of the

type of visa for which they applied. The collection of biometric identifiers was outsourced with the result that

a charge for this was levied on all applicants, on top of the visa service fee.

Number of enquiries per country: Spain (51); UK (38); France (31); Germany (21); Italy (15); Sweden

(14) Belgium (14); Ireland (13); Greece (9); Portugal (8); Norway (6); the Netherlands (4); Austria (4);

Cyprus (4) Czech Republic (3); Poland (3); Denmark (2) Slovakia (1); Slovenia (1).

Freedom of Movement in the EU: A Look Behind the Curtain

2.2.4.2.4. Delays in issuing entry visas

While Directive 2004/38 does not specify a timeframe for processing family members’

visa applications, in its 2009 Communication, the Commission draws an analogy with

Article 23 of the Visa Code

and states that it considers that “delays of more than four

weeks are not reasonable”

Despite this, non-EU family members often report delays of several months in the pro-

cessing of their visa applications. In several cases delays of over a year have been

reported. By far the most enquiries, and the longest delays, concern Ireland where

this is a serious issue. In the period between January 2015 and June 2017, YEA has

received at least 153 enquiries concerning Ireland alone, with delays of even almost two

years reported. Given that most other countries are bound by Schengen rules and must

comply with Article 23 of the Visa Code

, this is less of an issue with Schengen visas.

There have, however, been cases of citizens reporting delays of over four weeks and

even several months when waiting for a Schengen visa

. The most notable is the case

of Spain, where delays of 8 months and over one year have been reported

. Private

Regulation 810/2009.

Section 2.2.1 of the 2009 Communication.

Pursuant to which applications must be processed within 15 calendar days. An extension of up to 30

days is permitted in individual cases which require further scrutiny, or in cases of representation where the

authorities of the represented Member State must be consulted. An extension up to 60 days is only permit-

ted in exceptional circumstances where additional documents are required.

Belgium: A Dutch national living with his Kenyan wife in Belgium wished for her two minor daughters to

visit Belgium over the Christmas holidays. The Belgian authorities have taken more than 60 days to process

their visa application leading to cancelled travel plans and financial loss; In another enquiry a Belgian citizen

returning to Belgium (Surinder Singh scenario), mentioned that his dependent Moroccan father could not

benefit from the accelerated procedure when applying for a visa at the Belgian consulate in Morocco – he

had to pay a fee and wait over four weeks. Nine more YEA enquiries on similar facts were received bringing

to light waiting times of over two months; Italy: Six YEA enquiries; Malta: Two YEA enquiries – one report-

ing a waiting period of over three months; France: The French consulate in Morocco waited for an “OK”

from all other Schengen countries before delivering a visa to the newly-wed Moroccan spouse of a Portu-

guese national residing in France who wants to join him there; Four other YEA enquiries were received – one

reporting delays of over three months; the Netherlands: Five YEA enquiries; Germany: One YEA enquiry;

Austria: One YEA enquiry; Czech Republic: One YEA enquiry; There have also been eleven YEA enquiring

regarding the UK – one reporting delays of over five months.

BLS International, the service provider for the Spanish consulate in the UK, delayed over 4 weeks pro-

cessing the visa application of a Turkish spouse of a UK national, withhold the document and provide no

information on the reason for delay. No information can be obtained from the Spanish consulate either.

Seven other YEA enquiries revealed similar issues.

2. Obstacles to Entry

YEA enquiries received between January 2015 and June 2017

where citizens reported being asked to provide excessive documents

and to pay a visa processing fee

Spain

France

Germany

Italy

Sweden

Belgium

Ireland

Greece

Portugal

Norway

Austria

Cyprus

Czech Republic

Poland

Denmark

Slovakia

Slovenia

the Netherlands

service providers sometimes add to the delay

. The

consequence is that citizens’ travel plans are jeopard-

ised and financial losses incurred.

2.2.4.2.5. Refusals on invalid grounds

Finally, another serious consequence of family mem-

bers’ applications not being processed pursuant to

Article 5(2) is that a visa may be refused on invalid

grounds.

In particular, since family members have a right to re-

ceive a visa, they may only be denied one if:

 they fail to demonstrate that they are covered by

Directive 2004/38; or

 the national authorities demonstrate that they pre-

sent a genuine and sufciently serious threat to public

policy, public security or public health; or

 the national authorities demonstrate that there is

abuse or fraud

Family members cannot be denied an entry visa on any

other grounds, such as not having sufcient funds or

travel insurance, not providing employment details, not

providing reliable information “regarding the justication

for the purpose and conditions of the intended stay”, or

proving their “intention to leave the territory of the Mem-

ber States before the expiry of the visa”

. Yet citizens re-

port being denied entry visas precisely for such reasons.

In the period between January 2015 and June 2017,

YEA received at least 68 enquiries from non-EU fam-

ily members wishing to travel with or join their EU family

member in a Member State, who had been denied a visa

on such grounds

Moreover, another fairly common ground for denying visas

to family members is that the EU national is not resident

or intending to reside in the country of destination. This

seems to be a notable issue with Sweden, but has also

been reported in other Member States

. 

The Dutch consulate and service provider (Gerrys) (in Pakistan) took 33 days to process the visa applica-

tion of a Pakistani spouse of a UK national.

Schengen Visa Handbook, Part III, 3.8.

Boxes 8 and 9 in the standard form for refusals, Annex VI of Regulation 810/2009 (Visa Code).

Spain (7); Sweden (9), the Netherlands (3), Germany (6), Hungary (1), Denmark (1), Austria (2), Lux-

embourg (1), France (10), Malta (8), Greece (2), Cyprus (2), Italy (4), Hungary (3), UK (9).

Sweden: The application of a Kenyan family member of a Norwegian national was denied because he

was entered in the SIS as someone whose visa had been denied for Norway. The citizen appealed and the

Swedish court ruled that in order for the citizen to be entitled to rely on Directive 2004/38 his wife must

be resident or moving to Sweden. Sweden: the Iranian husband of UK national was denied a visa by the

Swedish consulate in Turkey because the UK wife did not have a job contract in Sweden, a mere intention

to move to Sweden as a job seeker was not accepted as sufficient evidence of intent to move to Sweden;

Ireland: A visa to enter Ireland was refused on the basis that the EU spouse had not presented evidence

of his intention to exercise his EU treaty rights in Ireland; France: A Polish national resident in UK wants to

Freedom of Movement in the EU: A Look Behind the Curtain



A UK national writes:

“My husband is a Syrian national current-

ly residing in Turkey. In October 2015, he

applied at the Swedish Consulate in Is-

tanbul for a Schengen visa. We provided

a copy of my passport, my husband's

passport, a legalised translated copy

of our marriage certificate, return plane

tickets and hotel reservations for the first

week in Stockholm. My husband stated

in the application form that he intended

on staying in Sweden for 2 months and

that we'll be travelling together from Is-

tanbul to Stockholm.

On the 5th November 2015, they refused

the visa for the following grounds:

“There is no documentation that your wife

is residing in another Member State other

than United Kingdom. She has not shown

any intention to move to Sweden. The

consulates conclusion is that to be able to

use the freedom of movement as a third

country national married to an EU citizen

travelling from a non-Member State ac-

cording to the Directive 2004/38 the third

country national needs to travel together

or join the EU citizen that has an intention

to move to Sweden. You can therefore

not be considered to be affected by the

Directive 2004/38. Your application will

therefore be handled according to the visa

code... Your application is rejected.”

I'm aware that they cannot reject a visa

application on these grounds. What op-

tions are available to me? I would like to

re-apply but I'm worried they will reject

again.”

As with visa exempt family members who were (wrongly)

required to apply for a visa, visas have been denied to

non-EU family members because their residence card or

visa (issued by the Member State of residence or pres-

ence) had expired

or had fewer than three months va-

lidity left on it

100

. Such citizens can end up in a Catch 22

situation, as demonstrated by the following case. 

Moreover, regarding denials on public policy grounds,

the authorities must carry out an assessment in each

individual case in order to determine whether the indi-

vidual poses a genuine, present and sufficiently seri-

ous threat to public policy and public security

101

. As

clarified by the CJEU, a visa may not be refused on

the sole ground that an alert in the Schengen Informa-

tion System (SIS) has been entered in respect of the

applicant

102

. The Court noted that the States party to

the Schengen Convention undertook by a Declaration

of 18 April 1996 that they would not issue an alert for

the purposes of refusing entry in respect of a person

covered by Community law (which includes the non-

EU family members of EU citizens) unless the condi-

tions required by the latter are fulfilled, namely where

the person constitutes a genuine, sufficiently serious

and present risk to public policy.

Yet, citizens have found that such an assessment was

not made when an SIS alert had previously been entered

against them and found it difcult to have previous SIS alerts reversed even when a sig-

nicant amount of time had passed

103

. This seems to be a particular issue in Norway

104

meet her non-EU husband in France. He was refused a visa, despite providing evidence that they will be

travelling together, on the basis that the EU spouse has no connection with France. France: Refusal by the

French authorities to issue a Schengen visa to the non-EU spouse of an Irish national because the Irish na-

tional is not resident in France or has not expressed an intention to reside in France; UK: The UK authorities

refused to issue a visa to the non-EU husband of a Slovenian citizen until she could demonstrate that she

had been working in the UK for a period of three months.

Denmark: An application was rejected because the non-EU family member did not hold a current resi-

dence card; Similar cases were reported regarding France, Portugal and Hungary.

100

Cases reported regarding France, Malta and Spain.

101

Article 27(2) of Directive 2004/38.

102

Cases C-503/03 Commission v Spain and C-33/07 Jipa.

103

Italy: A non-EU spouse of an EU citizen cannot enter the Schengen area due to an exclusion order en-

tered into the SIS by Italy several years ago.

104

The non-EU husband of a Dutch citizen, against whom an SIS alert has been entered due to a previ-

ous criminal conviction in Norway, was facing problems when trying to enter the Schengen area. It is not

clear if the person represented a current threat that justified the maintenance of the alert by the Norwegian

authorities; In another enquiry a non-EU husband of an EU citizen, who had been banned from returning to

Norway due to a previous illegal stay in the country, made a request to have the ban lifted. The six month

deadline for a response has been breached; Another non-EU spouse of a Lithuanian national, who had

been deported from Norway on criminal charges, was told that an alert had been entered against him for 2

years. He had been unable to have the alert lifted after this 2 year term ended and was thus unable to join

his spouse in Norway; In other case, Norway applied a lifetime exclusion order against the family member

of an EU national, on the ground that he provided false identity information during an asylum application.

Norway was refusing to delete the respective SIS alert even if there was no evidence to suggest that the

alert was justified on public policy grounds.

2. Obstacles to Entry

 “I am a British national currently

working and living in the UK. My partner

of 10 years is currently in the UK on a

Marriage visitor visa. We married in the

UK on March 26th.

In July we plan to move to Europe to look

for work. We tried to apply for a Schen-

gen Visa through the Belgium Embassy,

but were told it would not be possible.

On the date of application, it was 96 days

before our intended date of departure so

were told to return the following week as

we could not apply more than 90 days in

advance. Upon our return we were told it

was not possible to apply as she had only

89 days left on her visa for the UK. They

stated the application needed 60 days to

process in Belgium, then a clear 30 days

before we depart the UK. In order to ap-

ply for the visa we were told to return to

her home country.

Could you please clarify this information

for me? Do we have no option but to

return to my wife’s home country for the

visa?”

A total of 87 YEA enquiries were received between January 2015 and June 2017, dem-

onstrating visa refusals on invalid grounds.

2.2.4.2.6. Procedural safeguards are not respected

Directive 2004/38 provides for certain procedural safeguards in the event where family

members are denied their free movement rights. These include a reply that is provided in

writing, is fully reasoned and includes information on how and within what time limit it can

be appealed

105

. When it comes to the reasoning, as the Commission has claried “just in-

dicating one or more of several options by ticking a box is not acceptable”

106

Yet, in several cases, applicants who had their visa application rejected, were either not

given any reasons for the refusal

107

or given only vague reasons, by way of a box ticked

in the standard refusal form

108

. In some cases, the refusal was only given orally

109

. In

cases where abuse of rights was given as a reason for denial, a proper investigation

was not carried out to determine whether the suspicion was founded

110

. When proce-

105

Article 30 of Directive 2004/38.

106

Section 3.6 of the 2009 Communication. This has been repeated in section 3.9 of the Schengen Visa

Handbook.

107

France: no reasons or appeal procedure were indicated for the denial of a visa to a non-EU spouse of a

UK national by the French consulate in Pakistan. A further three YEA enquiries on similar facts were received

concerning France; Spain: three YEA enquiries; Austria: one YEA enquiry; UK: An Italian citizen residing in

UK wanted her mother to join her. After 3 weeks, the passport was returned without the UK entry visa and

without any justification or explanation; Two other YEA enquiries on similar facts were received concern-

ing the UK; Italy: A visa was refused without justification to an Egyptian husband of a Romanian national

resident as a student in Romania; Three other YEA enquiries on similar facts were received concerning Italy;

Sweden: five YEA enquiries; Germany: two YEA enquiries; Hungary: one YEA enquiry.

108

Cyprus: An applicant was not given detailed reasons, but was simply told that the application was ‘unre-

liable’. A potential suspicion of abuse of rights was not accompanied by an investigation; Greece: A British

citizen proposed to meet his non-EU parents in Greece to spend the summer vacation there together along

with his British wife and kids. The visa was refused because “information submitted regarding the justifica-

tion for the purpose and conditions of the intended stay was not reliable”; France: two YEA enquiries.

109

Belgium: A family member holding a visa issued by France was refused entry to Belgium without written

reasons being notified to him; Ireland: one YEA enquiry; Germany: one YEA enquiry.

110

Cyprus: The wife and child of an Irish citizen have been denied entry visas to Cyprus by the Cypriot

consulate in Karachi, Pakistan. One of the grounds was that the marriage is not genuine (even though the

couple have a child together and have lived in Canada together before); Finland: two YEA enquiries.

Freedom of Movement in the EU: A Look Behind the Curtain

Number of enquiries per country,

received between January 2015 and June 2017,

demonstrating visa refusals on invalid grounds

Spain

France

Germany

Hungary

Italy

Sweden

Malta

Belgium

Ireland

Greece

Portugal

Norway

Austria

Cyprus

Denmark

the Netherlands

Luxembourg

dural safeguards are disrespected, it is very difficult for citizens to enforce their rights

by appealing the negative decision.

2.2.5. Travel documents withheld

Citizens who apply for entry visas have reported having their original travel documents

withheld during the application process

111

. Even the travel documents of the EU family

member have been withheld causing a major hindrance to the citizen’s right to move

freely in the EU

112

2.2.6. Long term or family reunication visa required

Pursuant to Article 5(2) of Directive 2004/38 those family members who are not visa

exempt, “shall only be required to have an entry visa in accordance with Regulation

539/2001”. Regulation 539/2001 concerns only short term visas for stays of up to

three months and transit visas

113

. Thus, as the Commission has already clarified in its

2009 Communication, Member States cannot require non-EU family members “to ap-

ply for long-term, residence or family reunification visas”

114

Despite this, it appears to be a common practice in some Member States to require

non-EU family members who wish to join their EU migrant family member and settle in

the host country to obtain a long term, type D, visa. This seems to be a particular issue

in France and Germany.

In France, citizens face the problem when they go to register and apply for an Article

10 residence card. They are told that their ‘short term’ visa is insufficient and that they

should return to their country of origin to obtain a long term visa

115

. There seems to

be little information, or ‘warning’, given by the French consulates that a long term visa

111

Italy: The Tunisian husband of a UK national applied for a visa to join his wife who got a job in Italy. His

passport had been detained and he had no response 25 days after submitting his application. Also six

similar YEA enquiries were received concerning Ireland, five concerning the UK and one concerning the

Netherlands.

112

A non-EU national lived in the UK with her British husband who is a pilot. The couple travelled frequently

to European destinations. The wife had been forced to travel to London to present her documentation sev-

eral times per year to obtain the visas necessary to travel. Many Embassies had also insisted on holding her

husband’s passport to support the application for a visa. This was extremely inconvenient as her husband

was required to have his passport to enter other countries as part of his work.

113

Article 2 of Regulation 539/2001.

114

Section 2.2.1 of the 2009 Communication. Also in Case C-157/03 Commission v Spain, the CJEU ruled

that the national authorities cannot require the family members of an EU citizen to have to obtain a family

reunification visa prior to taking up residence.

115

France: The Filipina wife of a British citizen obtained a short stay visa so as to join her husband and live

with him in France. Within 3 months after arrival she went to apply for a residence card at préfecture 82000.

She was refused on the grounds that the short stay visa “is not good” and was asked to leave France within

3 months; France: A Maltese citizen working in France had been advised by the préfecture that, since they

were unable to set an appointment to receive her Tunisian husband’s application for a residence card within

6 months, he should return to Tunisia and apply for a long term visa from there. Not only was the delay

excessive to handle the application for a residence card, a receipt of application should have sufficed to

lawfully stay in France until his residence application was processed; France: A Spanish national resident in

France wished for his Moroccan mother – visiting him under a short term tourist visa – to remain with him in

France. The Préfecture told him that his mother should be classified into the category of foreigners who are

in an illegal situation; France: A Chinese step-son of a UK national was denied a residence card because

he was under 18 and was then also denied a ‘circulation transfrontiere’ which would have enabled him to

travel in and out of France, because he entered France on a short term visa – See section 3.2.5 below.

2. Obstacles to Entry

may be required in order to obtain a residence

card in France

116

. This leads to Catch 22 situ-

ations for citizens when the French consulates

and the immigration authorities in France con-

tradict each other

117

. The following case

118

is il-

lustrative. 

In Germany the problem lies in that consulates

and regional immigration ofces do not apply free

movement rules uniformly. As regards consulates,

several citizen enquiries revealed that German

consulates refused to issue short term Schengen

visas and required family members to apply for

long term visas

119

. While other citizens were told

by the consulate that no visa was necessary, they

could not obtain a residence card in Germany

and were forced to go back to their country of

origin to obtain a long term visa

120

. Regarding,

regional immigration authorities, they often tell

family members who entered Germany on a short

term visa to leave and re-enter on a long-term

visa before they can apply for a residence card

121

However, as the following case illustrates, the an-

swer may differ depending on who you ask. 

116

France: A Tunisian spouse of a German national, who entered France on a six month Schengen visa, tried

to apply for a residence card but his application was not accepted and he was told by the prefecture that they

were not aware of such visas; France: The South African husband of a UK national applied for a long term

visa but the French consulate in London only issued him with short term one. The prefecture in France refused

to issue a residence card on the ground that he only had a tourist visa and required the UK spouse to prove

she had found employment within 2 months before he could be issued with a card and allowed to work. The

family were planning for the husband to nd employment rst; France: The French consulate in Philippines

required the non-EU wife of a Romanian national to provide return tickets in order to be issued with a short term

Schengen visa, she was not given information on how to join her husband and not given the option to apply for

a long term visa – even though this would (wrongly) be required when applying for a residence card in France.

117

France: A US citizen who intended to join his EU spouse in France for 7 months, applied for a long term

visa and was informed by the French consulate in the US that he did not require a visa at all. The prefecture

in France then refused to issue a residence card to him and told him to obtain a long term visa from the

US. The citizen informed the consulate of this response from the prefecture, but the consulate insisted on

their position; France: The French embassy and migration information service in France, informed a French

national resident in the Netherlands that her civil partner, who had been living with her for 2 years, would

need a long term visa to enter France and that this visa (issued for one year) would not allow her to work.

118

Translated from French.

119

Germany: The Colombian wife of an Irish citizen wanted to move with her Irish husband and children to

Germany. The German Embassy in Bogota required her to apply for a family reunication visa (which took six

months to obtain and cost approx. 300 EUR) – despite Colombians being visa exempt; Germany: A Romanian

citizen and her Ukrainian husband wanted to move to Germany. The German visa centre in Kyiv did not issue

a Schengen visa, claiming that he must apply for a national long-term visa. He was told that if he applied for

a residence card while on a short term visa he would be refused, sent back to the Ukraine and would have

a stamp in his passport which would make it impossible for him to obtain another visa from any EU country;

Enquiries with similar facts concerned conduct by the German Consulates in Edinburgh, in Havana, Cuba, in

Pristina, in Tunisia, in Sri Lanka, in Bogota, Colombia, in Istanbul, Turkey and in Bucharest, Romania.

120

Germany: A German citizen and her Mexican husband wanted to settle in Germany. The German Consu-

late in San Francisco applied Schengen rules and told him that he could enter Germany visa-free (as Mexi-

can citizens are exempt from Schengen visa). The family could not register in Germany and the husband

was forced to go back to Mexico and apply for the long term visa.

121

See section 3.2.1.2 below.

Freedom of Movement in the EU: A Look Behind the Curtain

 “I am Portuguese and I live in France. My hus-

band is Tunisian. We requested a long term visa

so he could join me in France. He was issued

with a Schengen visa, so for a stay of 90 days

only. In France I contacted the immigration au-

thorities to request family reunification and they

told me that since I was an EU national I had to

request a long term visa for a spouse of an EU

national at the French embassy in Tunisia.

I called the French embassy in Tunisia to explain

to them what the immigration authorities told us

and [to ask] why the embassy had not issued a

long term visa, as requested, but issued a short

term visa instead.

They replied that since I am not French they

cannot issue a long term visa. That I should

go to the immigration authorities and request

family reunification.

We are being sent from one service to the

other and we are not being given a solution.

I would like to know what I need to do so my

husband can stay in France with me.”

The same requirement to hold a long term visa in order

to be issued with a family member’s residence card has

also been reported in Belgium

122

and in Bulgaria

123

2.2.7. Visas issued with limited duration

Since family members have a right to accompany the

EU migrant and stay in the host country with them un-

conditionally for up to three months, it follows that they

also have a right to receive a visa for this duration, if

they so request. A visa should not be limited arbitrarily

or for reasons which are at odds with family members’

rights under Directive 2004/38.

Yet family members who applied for a short term visa

have reported receiving one with validity limited to less

than three months and sometimes as short as 15 days.

The most common grounds for such a limitation has been

that the family member’s residence permit will expire in

less than three months from the end of the 90-day period

of permitted stay in the Schengen area

124

. This is at odds

with both Directive 2004/38 and the Schengen rules.

First, pursuant to Article 5(2) of Directive 2004/38, family

members can travel with, or join, the EU migrant in the

EU irrespective of whether or not they hold a residence

card issued by another Member State. Second, pursu-

ant to Article 6(1)(a)(i) of Regulation 2016/399 (Schengen

Borders Code), it is the applicant’s travel document, i.e.

the passport, that must be valid for three months after

the date of departure, not their residence card.

122

Belgium: The mother of a British citizen living in India was told she had to apply for a Category D national

family reunication visa in order to be able to join her British daughter who supported her nancially and who

intended to take up residence in Belgium; Belgium: A UK national resident in Belgium who wanted his Nigerian

husband to remain with her in Belgium had been told that he had to return to Nigeria and obtain a type D visa;

Belgium: A Romanian national resident in Belgium wanted her Surinamese husband to join her in Belgium and

was under the impression that he needed a type D visa in order to settle in Belgium.

123

Bulgaria: The Turkish spouse of a Dutch national resident in Bulgaria had been told he could not apply for

a residence card because he only had a type C visa (albeit multi-entry and valid for 10 years). He had been ad-

vised to go back to Turkey and obtain a type D visa before applying for a residence card; Bulgaria: A Swedish

national’s Chinese wife tried to apply for a long term visa for Bulgaria but this could not be issued on the basis of

an accelerated procedure. She had to apply for a short term one which could be issued earlier but was told she

would not be able to get a residence card in Bulgaria if she entered on the short term one; Bulgaria: The US

husband of a Bulgarian had been required to obtain a long-term visa to move with his wife to Bulgaria, despite

holding an Art. 10 residence card from the Czech Republic. The McCarthy case not applied.

124

Belgium and France: The non-EU husband of a British citizen lawfully residing in the UK was informed that

he could not be issued with a visa with a full 90-day validity because his UK residence permit would expire less

than three months after the end of the 90-day period of permitted stay in the Schengen area; Italy: The non-EU

wife of a British citizen residing in the UK was issued a visa only valid for two months on the basis that her UK

residence permit would expire in 2 months; Greece: The non-EU wife of a British citizen was informed that she

could not be issued a visa with full 90-day validity because her residence permit would expire before the end of

this 90-day period; Sweden: The non-EU wife of a British citizen residing in the UK was informed by the Swed-

ish consulate in London that she could not be issued a visa with full 90-day validity because her UK residence

permit would expire before the end of this 90-day period; Germany: The German consulate would only issue a

visa to the wife of a British citizen residing in Gibraltar valid up to one month before the expiry of her residence

card. Moreover, the problem was compounded by the fact that the Gibraltar authorities only issue residence

permits to non-EU family members with a limited validity of 6 months.

2. Obstacles to Entry

 A Hungarian national, resident in

Hesse, Germany wanted his Serbian

wife to join him. His wife was visa ex-

empt (due to the EU-Serbia Visa Fa-

cilitation Agreement of 2009 (codied in

Regulation 539/2001) thus she should

have been able to enter visa free and

apply for a residence card in Hesse.

However, the Hessian authorities re-

fused to issue her a residence card. The

state’s immigration authorities and even

the German Embassy in Belgrade were

not aware of the visa facilitation agree-

ment and demanded her to enter Ger-

many on a national long-term visa. The

YEA advice received by the Hungarian

citizen was ignored by the immigration

authorities.

The citizen subsequently called the im-

migration ofces of other German states

and reported to YEA that some had

conrmed that his wife did not need a

visa, while others did request one. This

case points to an obvious fragmenta-

tion of how German immigration ofces

across the country handle free move-

ment rules and a lack of training of Ger-

man immigration personnel.

Citizens have also had visas issued with a

start date after the date of reserved travel

booking

125

or had the visa validity term lim-

ited arbitrarily without any reasons given

126

Some have even been told that “As a gen-

eral rule, for EU family members, this Consu-

late grants 15 days long Schengen Visas”

127

A further problem, which has arisen in Ire-

land, is that family members who enter Ire-

land on a visa issued by a consulate abroad

have then had the visa term limited upon

entry. The border control staff, being insuf-

ficiently aware of family members’ rights un-

der Directive 2004/38, have placed a stamp

of a one month duration in the family mem-

ber’s passport, which also included a state-

ment that the citizen is not allowed to work.

The following case is illustrative: 

Besides this time limitation causing prob-

lems and stress to the EU citizens who find

it very hard to find a job and complete all

necessary formalities in one month, the

added problem is the express prohibition of

the family member’s employment mentioned

on the passport sticker. While the Irish De-

partment of Justice seem to recognise fam-

ily members’ EU rights to reside in Ireland

unconditionally in the first three months and

be able to work during that time, and while

they accept that the border control officials

were wrong to place such stamps in their

passports, in practice family members with

such a visa limitation cannot easily find em-

ployment as employers do not want to take

the risk of hiring them

128

125

Italy: A Thai family member of a UK national was told by the Italian embassy in Thailand that her visa would

be refused if she did not provide ight details and an itinerary. After the applicant provided a travel booking, she

was issued with a visa with a date of validity that began after the booked date of travel.

126

Italy: The non-EU wife of British citizen applied for a 20 day multiple entry within 6 months Schengen Visa

for Italy. Instead she was issued a 15 day single entry visa within 1 month. The citizens writes: “In addition, the

treatment was [...] discriminatory with statements such as a ‘visa is a courtesy and not a right’ and laughing off

the inconvenience caused stating that the ‘visa was free anyway’”.

127

Spain: This was the reason given by the Spanish consulate in London which granted a 15 day single entry

visa to the Thai wife of a UK national, that did not cover the ve week duration of their intended stay; Spain:

The same Spanish consulate issued only 15 or 30 day visas to a Russian wife of a UK national. The citizens,

who intended to move to Spain eventually, found this time insufcient for purchasing a house in Spain. They

were told that a longer visa would only be granted if they purchased a property in Spain.

128

This became evident in the case of a non-EU spouse of a UK national who received a one month stamp at border

control in Ireland which stated that they are not allowed to work. The EU national found it hard to get a job and com-

plete all administrative formalities within such a short period and complained to SOLVIT. SOLVIT informed the citizen

that while the Irish DoJ is aware of their rights and the spouse had the right to reside and work in Ireland in the initial

three months, it would be up to the individual employer whether they would hire them and that “many employers will

be wary of employing non-EU nationals with no work permit or no permission from the Department of Justice in case

the individual later turns out to have been illegal and this would leave the employer open to possible legal action”.

Freedom of Movement in the EU: A Look Behind the Curtain



A UK national writes:

“Arrived at Dublin airport on 15th December with my

Turkish husband [...]. The immigration officer that dealt

with us explained that she didn’t know much about our

treaty rights. She then consulted a colleague and issued

my husband with a stamp for the duration of one month,

valid until 15th January and told us to report to the local

garda station to register. It was my understanding that

he should have been given the 3 months, like myself. [...]

with it being over Christmas and new year, I have strug-

gled to find work [...]. I understand it can take a week

to get a reply/confirmation letter from the INIS in Dublin,

and I’m sure they need all the paperwork (two payslips,

etc.) before sending the letter. I believe the one month is

physically impossible for me to organize all this [...]. I’m

worried that my husband will have to return to Turkey,

[...] When we arrived we went to the garda office as the

immigration officer told us to [...] and they told us the one

month was normal, so I’m unsure they would extend his

visa. I’d like to have something to show them and help

understand our rights as the last few weeks have been

very stressful for me in trying to get somewhere to live,

finding employment and thinking about sending the EU1

form asap and forwarding any missing paperwork once

I have them. If we had the extra time then it would be

possible for me to do all this. At the moment we have just

over a week to go and I still haven’t found employment. If

my husband has to return to turkey then I would consider

leaving Ireland due to the unfairness and the cost.

Would you be able to help with advice and to clarify the

rights so we can solve this issue.

If I have 3 months as a UK citizen then surely my husband

should be able to reside with me for that duration?!”

2.2.8. Unprofessional conduct of embassy sta

Article 39 of the Visa Code provides that Member States must ensure that applicants are

received courteously and that consular staff must fully respect human dignity in the per-

formance of their duties and not act in a discriminatory manner.

Despite this, citizen enquiries reveal that consular staff as well as external visa service

providers do not always treat applicants with courtesy. Citizens describe situations where

they have been intimidated by consular staff after trying to question unlawful demands

made by the consulates

129

2.2.9. Detention and delays at the border

A further consequence of immigration staff not applying Directive 2004/38 is that EU

citizens and their family members may face long delays or detention at border cross-

ings. Citizens have reported being detained upon their return to their EU country of resi-

dence because they did not have a residence card (as their residence application was still

pending)

130

or when travelling to another EU country on the grounds that they did not have

a visa, even though they held an Article 10 residence card and were thus visa exempt

131

Citizens report being harassed and kept in detention for several hours

132

and being threat-

ened to be sent back on the grounds that they did not have an entry visa, when in fact

they were visa exempt

133

or because of an old SIS alert against them

134

2.2.10. Denied entry/exit

While entry and exit can only be denied to family members of EU nationals on public policy

grounds, or if there is evidence of abuse of EU rights or fraud, citizens have reported being

denied entry at border control on the grounds that they did not have a visa

135

– even when

129

Ireland: The non-EU wife of an Italian citizen was subjected to abuse and discriminatory treatment by

Irish immigration ofcials when returning to Ireland; Germany: The German Embassy in Pristina refused a

visa to the Kosovar husband of a Romanian citizen what wanted to relocate to Germany, claiming that he

must apply for a national long-term visa. When the couple questioned these demands, the Embassy ofcials

intimidated the couple, denied them any legal appeal of the consular decision, threatening that if they came

back, the Embassy would issue a permanent Schengen entry ban not only for the Kosovar husband, but

even for the Romanian enquirer; Unprofessional conduct by staff was reported in relation to Belgium, Spain,

Portugal, France, Italy, Greece and Norway.

130

Spain.

131

UK and Germany.

132

Germany, Latvia and Estonia.

133

Greece.

134

France: A Tunisian national, travelling with his UK wife on a weekend to Paris, was delayed at border

control upon exit from France and was told that if he ever re-entered he would be deported to Tunisia (even

if he lived in the UK). No reasons were given besides that there was a ‘red mark’ next to his passport details

on system. The French authorities failed to check the nature of the alert. (The citizen had previously applied

for asylum in Austria but was denied. He later married his UK spouse has since resided in the EU on the

basis of Directive 2004/38).

135

Spain: The non-EU wife of an EU citizen (both living in Gibraltar) was stopped at the border and threatened

with arrest for being in Spain without a valid visa. Spain: A non-EU wife of a British citizen travelling with her

UK spouse was refused entry into Spain by Gibraltar authorities despite the fact that she was able to produce

documentation proving her family links;

2. Obstacles to Entry

they were visa exempt

136

. Family members arriving with a visa were denied entry on the

grounds that “they pose a migration risk”

137

. One citizen reported being denied exit when

wanting to join his EU wife who had relocated to another Member State

138

When citizens face problems at border control, they have no way of enforcing their rights

when they are being infringed by a border guard. There is no EU service or national service

that can provide immediate assistance in such situations. Yet entry denials at the border

are one of the most traumatic consequences of the misapplication of Directive 2004/38

as citizens nd themselves at the discretion of border ofcials, with their travel plans jeop-

ardised and irrecoverable nancial loss incurred. The decision may not be given in writing,

so citizens have no way of challenging it in the future.

2.2.11. Airlines not aware of family members’ EU rights

A further hurdle that EU citizens and their family members face when wishing to travel

within the EU is the lack of awareness among airline staff of family members’ rights under

Directive 2004/38. As a result, citizens have been denied boarding on invalid grounds.

As evidenced by several enquiries, airline staff are not always aware of the visa exemption

in Article 5(2) of Directive 2004/38 and have denied boarding to citizens who held a family

member’s residence card (pursuant to Article 10)

139

but also a permanent residence card

(pursuant to Article 20)

140

In some cases airlines have denied boarding on the grounds that the family member’s

passport did not have a minimum 3 month validity period beyond the intended period of

stay in the Schengen area, even if the citizen held a residence card issued by the country

of destination where they resided

141

, or that they did not have a return ticket, despite hold-

ing a valid Schengen visa.

136

Bulgaria: The non-EU husband of an EU citizen was refused entry to Bulgaria despite holding a residence

card of family member of an EU citizen issued by the UK; Poland: Polish border control refused a family mem-

ber of a Norwegian national residing in Poland, who had been issued with an EEA residence permit, the right

to re-enter Poland, suggesting he should be reapplying for a new visa every time he re-enters; Spain: Nigerian

family members of a UK national, with residence documents from Gibraltar, were denied entry into Spain; Ger-

many: The German police impeded the transit of a foreigner in possession of a valid Greek residence permit;

Ireland: A British citizen travelled to Ireland with his US spouse. The Irish authorities provided her with an immi-

gration stamp which required her to register within 30 days. She failed to do so and the couple returned to the

UK. The UK authorities required that she returned to the US and would not permit her to travel back to Ireland;

UK: A UK citizen and her non-EU husband living in Germany returned to the UK for vacation. The husband,

despite holding a valid German residence card, was refused entry by border agents at Calais; UK: the Non-EU

spouse of a Belgian national, resident in Belgium with an Art. 10 residence card was denied entry to the UK at

Calais on the ground that she did not have a visa; Italy: The non-EU spouse of an EU national accompanying

the EU national was stopped at the airport without a visa and refused entry to Italy.

137

Belgium: The non-EU family members of a British citizen resident in Belgium had obtained Schengen visas

in Bangladesh. They were refused admission to Belgian territory on the grounds that they posed a migration

risk in Belgium. The Belgian authorities were proposing to expel them.

138

Greece: the non-EU husband of a Greek citizen lived in Greece with a residence permit. He wanted to relo-

cate to Germany to reunite with his wife, but he was denied exit from Greece.

139

22 YEA enquiries were received evidencing this. For example: A Dutch citizen living in Germany wanted to y

with British Airways from London to Amsterdam with his non-EU wife. She was not permitted to board because

she still had the old green paper residence card (valid) and not the new plastic residence card; A Chinese de

facto partner of a Czech national with an Art. 10 residence card was told by the UK embassy that she did not

require a visa (following the McCarthy ruling), however she was denied boarding by the air-carrier because her

residence card was issued by her partner’s country of nationality.

140

6 YEA enquiries were received evidencing this.

141

A non-EU spouse of a Dutch citizen holding a residence card issued by the Spanish authorities was refused

travel back home to Spain with his wife on the basis that his passport did not have a minimum period of validity

of three months beyond the intended period of stay in the Schengen area (Easyjet).

Freedom of Movement in the EU: A Look Behind the Curtain

As airlines are often liable to pay nes if they transport a passenger without the correct

travel documents, they err on the side of caution and deny boarding, even in situations

when the citizen has every right to travel to the country of destination.

2.3. EU nationals

EU nationals can generally travel in the EU without problems with a valid passport or

national identity card. There are, however, still some obstacles hindering EU nationals’

freedom of movement. EU citizens have faced difculties obtaining new travel documents

from their consular authorities when resident in another Member State and have had

some problems getting through border control. Confusion about the applicable rules has

also been reported.

2.3.1. Diculties obtaining travel documents

An obstacle to EU citizens’ free movement arises when EU citizens who reside abroad

need to renew or obtain new national identity documents and are not able to do so easily

or within a reasonably short timeframe. This has affected citizens’ travel plans, especially

those needing to obtain passports for their children, who were unable to do so within

reasonable timeframes

142

2.3.2. Excessive border checks and identication

requirements

While pursuant to Article 5(1) of Directive 2004/38, EU nationals can exit their own Mem-

ber State and enter other Member States with either a valid passport OR a national iden-

tity card, citizens who comply with this requirement have been asked to provide further

evidence of their identity and, in some cases, had their journeys interrupted.

2.3.2.1. Own nationals denied exit

Dual national children, when exiting one of their countries of origin with a passport issued

by the other country, have at times been denied exit.

This is a recurring issue in Poland, where Polish nationals who held only a passport issued

by another Member State

143

have been allowed entry but then denied exit from Poland

because they did not have a Polish passport. Pursuant to Polish law, a Polish national is

142

Hungary: Hungarian citizens reported delays of more than 6 months in obtaining passports for their children.

As a consequence, the citizens were not able to travel home to Hungary with the children during the summer

holidays; Portugal: A Portuguese national resident in the UK had great difculty contacting the Portuguese

consulate in London and obtaining an appointment for renewing her and her minor daughter’s Portuguese ID

cards and obtaining a passport. (This situation occurred at a time when the staff of the Portuguese consulate in

London were ghting the Portuguese Government, complaining about poor salaries that were allegedly inferior

to the minimum wages in England); Belgium: Belgian citizens have experienced serious difculties and impedi-

ments in obtaining travel documents; A Belgian citizen faced difculties in contacting the Belgian embassy in

Paris to apply for renewal of his identity card; Romania: Romanian citizens reported facing serious difculties

and impediments in obtaining new travel documents from the Romanian embassies. Also Sweden: A child with

dual German-Swedish nationality sought to apply for a Swedish travel passport. He was required to prove his

identity, but the Swedish authorities refused to recognise his German identity card.

143

In most cases, Ireland.

2. Obstacles to Entry

required to present a Polish passport to exit Poland

144

. Dual national minors born outside

Poland have been most affected by this. Children born to Polish parents acquire Polish

nationality automatically but long administrative procedures discourage parents from ob-

taining the Polish documents for children born abroad. Thus, such dual national minors

have been denied exit from Poland when travelling with a passport issued by another

Member State. Parents are forced to obtain Polish identity documents for their children for

the sole purpose of being able to exit Poland

145

This has also arisen in Italy, where dual Italian/Belgian children wishing to travel to the UK

were denied exit from Italy on their Belgian passports and told that they needed Italian

passports (costing 120 EUR) in order to travel outside the Schengen area.

2.3.2.2. Excessive requirements by airlines

EU citizens have also faced excessive identification requirements at airport check-in,

with airline staff requiring to see more than one identification document

146

2.3.2.3. National identity cards not accepted

Moreover, some EU citizens travelling only with their national identity cards have had dif-

culties getting them accepted and have been required to provide passports to prove of

their identity

147

This affects Greek and Hungarian nationals who still carry paper ID cards. While these

ID cards remain valid, citizens face difculties having them accepted. For example, a case

was reported where the British authorities conscated a Greek ID card, saying that it was

not in good condition and it may have been forged and in another instance a Hungarian

national was detained for an hour by the Austrian border police before being allowed entry

and later received a ne of €100 for having travelled with an invalid travel document.

Moreover, French citizens, whose national identity cards were issued between 2 January

2004 and 31 December 2013, have had the validity of their ID cards extended automati-

cally by 5 years. While the French authorities are preparing a change towards a new, more

secure model of ID card, the old cards have not been physically altered and cannot be

replaced

148

. Thus, many French nationals hold an ID card with an expired date mentioned

on it. France has informed other EU countries of this measure and has received conrma-

tion from some that French identity cards showing an expired date will be accepted. Other

Member States have not, however, provided a response, which leaves French nationals

risking being denied entry if they do not also carry a valid passport

149

144

‘Article 3 and 14(1) of Ustawa z dnia 2 kwietnia 2009 r. o obywatelstwie polskim. Also Passport Document

Act of 13th July 2006 which sets out the right of Polish nationals to obtain a passport which conrms their

identity and entitles them to travel.

145

9 YEA enquiries were received evidencing this.

146

During a journey from Stockholm to London, an EU citizen was asked to identify himself during a check-in

procedure with more than one document (passport and identity card and credit card) and was asked about

how long he proposed to stay in the UK. The citizen writes: “When I asked for an explanation for all this I was

told that Italians and Romanians travelling towards London need to present more than 1 ID and being dou-

ble checked”; Another EU citizen was asked for excessive amounts of documents by Lufthansa staff prior to

boarding an intra-EU ight. He was also asked to show his boarding pass upon entry to Ireland by the Irish im-

migration authorities; A Romanian national could not use his Romanian ID card to check in online with Easyjet.

147

A Portuguese national resident in the UK who only had a national ID card and no passport, was required to

provide alternative evidence of her identity when entering the UK and also when dealing with UK government

and private entities.

148

http://www.diplomatie.gouv.fr/fr/services-aux-citoyens/documents-officiels-a-l-etranger/article/extension-

de-la-duree-de-validite-de-la-carte-nationale-d-identite

149

Five YEA enquiries were received evidencing this.

Freedom of Movement in the EU: A Look Behind the Curtain

One citizen reported facing difculties when entering Portugal with a valid Czech identity

card. She reported being told that “Czech republic is not country” and having to explain

that the Czech Republic is in the EU.

2.3.3. Confusion about the rules

Citizen enquiries demonstrate that EU citizens are sometimes confused about entry

rules.

2.3.3.1. The notion of valid travel documents

EU citizens sometimes wonder whether they can use documents other than a passport or

identity card for travel. For example, citizens have enquired whether a driver’s licence

150

or their registration certicate, when it is issued in the form of a card

151

or a foreign issued

travel document

152

, would be acceptable as a travel document.

2.3.3.2. Obligation to carry a travel document

Citizens are sometimes not aware that they must carry their identity documents when

crossing Schengen borders even if there generally are no border checks. In one case, UK

tourists were ned 100 EUR by Austrian police for failure to carry their passports on them

while on a round trip by boat between Vienna and Bratislava. The citizens were under the

impression that a UK driver’s licence and photos of their passports should be sufcient

and were not aware that they should carry their passports with them.

2.3.3.3. Travelling with expired travel documents

EU citizens have also wondered whether they would be allowed entry to other EU coun-

tries or back to their own country when their travel document had expired or was about

to expire

153

. There are no EU rules in relation to this, with each Member State adopting its

own policy

154

2.3.3.4. Travelling with minors

Another area of confusion where no EU rules exist is that of travelling with minor chil-

dren without one or both of their parents. Citizens are confused about formalities and

150

Ireland: Irish nationals that were not able to get their passports issued in time for booked travel to Portugal

were wondering whether any other form of ID, such as a driver’s licence would be acceptable (This was in

2015, prior to the introduction of the passport cards in Ireland).

151

Estonia: EU citizens resident in Estonia believed that they can use their Estonian identity cards as travel

documents. The Finnish border guards are conducting spot checks, issuing nes for border offences.

152

A Lithuanian/Russian dual national who does not have a Lithuanian or Russian passport was wondering

whether he could travel to Sweden and Finland with a US issued travel document and US permanent resident

card.

153

Three enquirer wondered if they could return to Portugal on expired passports; A Danish resident on holi-

day in the Netherlands asked whether he could still travel on his certied travel document which was about to

expire. A German national whose passport was about to expire was wondering whether he would be able to

travel from the US to Spain; A French national with a passport that expired less than 5 years ago wondered if

he could travel on it to the UK from France; A Swedish family resident in Denmark wished to travel to Sweden

to renew their expired passports. They were stopped by the Danish frontier police and told they could not drive

to Sweden with expired passports.

154

The number of enquiries in relation to this issue have decreased since the ‘Your Europe’ website has been

updated to include a section on travelling with expired travel documents.

2. Obstacles to Entry

whether parental permission is required. While some Member States insist on the pres-

entation of a letter of consent from parents, others impose no such requirement and

citizens who did not know the rules in advance have been denied entry

155

3. Obstacles to Residence

3.1. In a nutshell

This section outlines the problems that citizens report facing when trying to reside in

another EU Member State, as evidenced by enquiries submitted to YEA between Janu-

ary 2015 and June 2017

156

. Namely:

 The difficulties in obtaining residence documents (Section 3.2);

 The problems and Catch 22 situations that arise when residence documents or

national identification numbers are made a prerequisite to completing essential

administrative formalities (Section 3.3); and

 Instances when citizens are (or feel) discriminated against on the basis of nationality

(Section 3.4).

3.2. A long and dicult road to...

a residence document

While for some citizens obtaining a residence document is fairly straightforward, es-

pecially when they are coming to work in another Member State and already have a

permanent work contract to show, for others, things are not so simple. Citizens face

hurdles before even beginning the application process. Then once they arrive at the

immigration office ready to submit all their documents, they are not allowed to ap-

ply because their documents are not deemed sufficient, even though they should be.

Once they manage to apply, they could be facing unreasonable delays in getting their

residence documents, way beyond the six months permitted in the legislation. At the

end of the process, they may receive a residence document with limited validity, or be

denied the right to residence for no valid reason, or even be ordered to leave the ter-

ritory within a short period of time and without the procedural safeguards of Directive

2004/38 being respected.

3.2.1. Red tape and other hurdles before even beginning

the application process

Citizens who arrive in their host Member State sometimes have to wait a long time to

even get an appointment to register. In some countries, non-EU family members are

155

Romania: A Belgian/Romanian dual national, resident in Belgium and married to a Belgian national, tried

to enter Romania with her minor Belgian son. Upon arrival in Romania, the border patrol ofcer denied them

entry on the basis that an authorisation of the father was required to be able to travel with her child; A Greek

national wishing to take his teenage students on a trip to the UK wonders if any extra documents are required;

A Belgian national resident in Ireland was wondering whether her husband needed additional documents to

take their daughter to Israel via the UK; An Italian national resident in the UK and travelling to Italy with her

minor daughter wondered whether her parents could bring the child back to the UK and whether any specic

formalities are required.

156

Although some of the long standing issues go back well before this period and are documented as such in

the relevant sections.

Freedom of Movement in the EU: A Look Behind the Curtain

not allowed to apply for a residence card on the grounds that they entered the country

on a short-term, instead of a long-term, visa. Many citizens report being required to

provide evidence of a set amount of minimum financial resources in order to be able to

apply, when this is expressly prohibited by Directive 2004/38. Others get turned away

because their non-EU marriage or birth certificate is not accepted, while de facto part-

ners face difficulties convincing the authorities of their “durable relationship”. Finally, a

new issue since Brexit, is the inability of UK nationals to apply for permanent residence

documents in France.

3.2.1.1. Long waits for an appointment to register

This has been a particular issue in France, where a waiting time as long as 9½ months

has been reported

157

. These delays have caused particular problems to non-EU family

members who are not always able to obtain an appointment before their entry visa ex-

pires – one citizen was told to return home and apply for a long term visa, since no reg-

istration appointment was possible within six months

158

. This has also been reported

as an issue, albeit to a lesser degree, in Spain

159

and Germany.

3.2.1.2. Non-EU family members who enter

on a short term visa are told to return home and obtain a long term

visa before being allowed to apply for a residence card

As explained in section 2.2.6 above, some Member States require family members to ob-

tain long-term or family reunication visas instead of short term visas when the purpose of

their travel is to settle in that country. Not all family members are, however, warned that a

long term visa is a requirement for obtaining a residence permit. Those who, for whatever

reason, enter the host Member State on a short term visa, then face problems when ap-

plying for a residence card and are even told to return to their country of origin and obtain

a long term visa, before submitting their application for a residence card.

This has been reported in several cases in France

160

and Germany

161

, but has also

157

5 YEA enquiries evidence this. For example: a Maltese citizen working in France has been advised by the

préfecture that, since they are unable to set an appointment to receive her Tunisian husband’s application for

a residence card within 6 months, he should return to Tunisia and apply for a long term visa there. Also see

Section 3.2.5.

158

3 YEA enquiries.

159

One enquirer mentioned that an appointment was given one month after the requested date and 2 days after

non-EU spouse’s visa expired. The spouse believed he had to leave Spain and reapply for a visa.

160

Six YEA enquiries concerned France, For example: A US spouse of a German national wishing to stay in

France for 7 months applied for a long term visa in the US – the French consulate in the US told him he did not

need a visa, but when applying for a residence card in France he was told he needed a long term visa in order

to obtain a residence card and that he had to go back obtain one from the US; The Filipina wife of a British

citizen obtained a short stay visa so as to join her husband and live with him in France. Within 3 months after

arrival, she went to apply for a residence card at préfecture 82000. She was refused on the grounds that the

short stay visa “is not good” and was asked to leave France within 3 months. See also section 2.2.6 above.

161

Germany: A Turkish husband of a Romanian worker, who entered Germany on a short term Schengen visa,

was told his application for a residence card would not be accepted unless he left Germany and reapplied for

a long term family reunication visa on the basis of German law; Germany: A Croatian citizen and her Serbian

husband wanted to move to Germany. The husband was not allowed to apply for a residence card at the local

foreigners’ ofce who claim that he can only lodge his application on a national long-term visa. They insisted

that he should leave Germany and re-enter the Schengen area on a long term visa; Germany: A German citi-

zen and her Mexican husband who wanted to settle in Germany were told by the German Consulate in San

Francisco that he could enter Germany visa-free (as Mexicans are visa exempt under Schengen rules for short

term entry). The husband could not register in Germany and was forced to go back to Mexico and apply for the

long term visa. See also section 2.2.6 above.

3. Obstacles to Residence

arisen in Belgium

162

and Bulgaria

163

. This practice is contrary to Articles 5 and 10 Di-

rective 2004/38

164

as well as to the CJEU’s case law

165

3.2.1.3. Set amount of minimum nancial resources

as a precondition to applying for a residence document

Article 8(4) of Directive 2004/38 expressly prohibits Member States from laying down a

xed amount which they regard as “sufcient resources” that an EU national must have in

order to be able to stay in their country for more than three months. The authorities cannot

require an EU citizen to demonstrate having an income higher than the threshold below

which nationals are eligible for social assistance or higher than the level of the social pen-

sion. Several enquiries have revealed that this is not always respected

166

This has been a particular issue in Italy, where the “going rate” seems to be around

€5,800 and has been imposed as a prerequisite to registration on retired EU nationals

and students.

Another problem, elaborated in more detail below

167

, is the lack of flexibility on the part

of the national authorities regarding the origin of the financial resources. There seems

to be a reluctance and/or unwillingness to accept evidence of sufficient resources

when this comes from a non-EU spouse, a partner or another family member.

3.2.1.4. Non-recognition of foreign marriage and birth certicates

This has been a serious, ongoing issue for several years in Spain as well as in Italy,

Portugal and France and it is explained further in Annex 1. EU nationals and their

family members, whose marriage or birth certificates have been issued by a non-EU

162

Belgium: A UK national resident in Belgium who wanted her Nigerian husband to remain with her in Belgium

was told that he must return to Nigeria and obtain a type D visa; In another case a Belgian commune refused

to accept a residence card application from the Nigerian husband of a Portuguese national resident in Belgium,

on the ground that he did not have an entry visa. The citizen’s visa had expired and his passport has been lost.

Pursuant to the CJEU’s judgment in Metock this should have been irrelevant.

163

Bulgaria: The Turkish spouse of a Dutch national resident in Bulgaria was told he could not apply for a resi-

dence card because he only had a type C visa (albeit multi-entry and valid for 10 years). He was advised to go

back to Turkey and obtain a type D visa before applying for a residence card. See also section 2.2.6 above.

164

Pursuant to Articles 5(4) Member States must give family members who arrive without the requisite entry

documents every opportunity to obtain them, or to prove by other means that they are covered by the right

to residence before turning them back. Article 10 includes an exhaustive list of the documents that may be

required to issue a family member with a residence card which does not include an entry visa.

165

Case C-157/03 Commission v Spain where the Court held that national authorities cannot refuse non-EU

family member’s application for a residence card because they failed to obtain a visa at the consulate of their

home country prior to arrival; Also C-459/99 MRAX and C-127/08 Metock.

166

Italy: an enquirer who was a part-time worker reported having to show €5,000 per year in the last 5 years; in

two other enquiries students required to show €5,800 in bank account; similar requirements were also reported

by a pensioner; Belgium: €2000 was required from self-sufcient persons; a student had to show €1,300

per month; Spain: A minimum salary of €426 was imposed on a Romanian worker in order to be granted

residence; Spain: A couple had to show a certicate from the Bank of Spain stating they earned > €8,500;

Greece: €4,000 had to be had in a bank account, no other evidence accepted; Austria: at least €50,000 was

required of a self-sufcient person; Austria: €2,800 was required of pensioners otherwise they had to leave;

Germany: A Polish student was told that his US wife could only receive a 5 year residence permit if he provided

evidence of earning at least €400/month; Cyprus: €1,200/month was required to issue a residence card to a 5

year old child of permanent residents; UK: The non-EU spouse of an EU citizen was refused a residence card

in the UK on the basis that her EU spouse did not have resources amounting to GBP 1000.00 per month. (In

the UK, the level above which a person is no longer eligible for social assistance (Employment & Support Al-

lowance) corresponds to around £72.40 per week for a single person aged over 25 or £113.70 per couple per

week. This equates to £313.73 per month for a single person and £492.70 per month per couple).

167

See section 4.3 below.

Freedom of Movement in the EU: A Look Behind the Curtain

country, have been facing serious difficulties when trying to apply for a residence docu-

ment for their non-EU family members

168

. Besides requiring these documents to be

apostilled or legalised, the national authorities also often require that:

 The documents are registered in the Member State of the EU citizen’s nationality,

or that some sort of evidence is presented that the home Member State recog-

nises the marriage as being valid. This adds an administrative step that is, at best,

complicated and, at worst, impossible to fulfil. In countries where such registra-

tion or recognition is possible, obtaining the relevant document may take several

months

169

and often both citizens have to be present in person. Some citizens have

reported arriving at a dead end when their country of origin cannot provide such

a document, either because such a registry of marriages does not exist (as, for

example, in the UK) or, in the case of same sex marriages, because the country of

the EU national’s origin does not recognise such marriages.

 The marriage or birth certificates (and their apostille or legalisation) must be dated

in the last 90 days. This requirement adds a significant administrative cost when the

documents are not recent as they must be reissued in the relevant non-EU country

– a process which may again be time consuming and costly.

The straw that breaks the donkey’s back is that citizens are often given 10 days to bring

the relevant documents and are told that if they do not provide them in this timeframe

their application will be rejected. 10 days is often an impossible timeframe to comply

with, given the complexity of the procedures that must be completed. In some cases,

non-EU family members have reported being issued with temporary residence docu-

ments, which state on them expressly that they have no right to work.

As a consequence of the above policy, non-EU family members:

 that entered on a short term visa fear that they must leave the country or bear con-

sequences for overstaying their visa;

 cannot work in Spain – temporary residence cards are not accepted by employers;

 in the case of same-sex marriages, cannot benefit from EU free movement rules

to obtain a residence document as a family member of an EU citizen, even though

Spain does recognise same-sex marriages.

As explained in section 2 above, this same issue has affected non-EU family members’

entry rights. However, cases have been reported where family members who needed

an entry visa managed to obtain one at a Spanish consulate abroad with their apos-

tilled or legalised marriage/birth certificates and were then denied a residence card in

Spain because the certificate was not registered in the country of the EU citizen’s origin

and/or because it was older than 90 days.

3.2.1.5. De facto partners have diculty proving a “durable relationship”

Some de facto partners reported not being allowed to apply for residence docu-

ments because of lack of proof of a ‘durable relationship’, despite providing extensive

168

16 cases have been reported on residence rights and 30 on entry rights in the January 2015 – June 2017

period in Spain alone. See Annex 1 for more detail.

169

Time frames of over 1½ years have been reported in Hungary, upto 1 year in Italy and in Spain itself and

upto 8 months in Germany.

3. Obstacles to Residence

evidence of communal life and in one case even having a child together. This has been

an issue in France

170

as well as in Spain

171

3.2.1.6. UK nationals struggling to obtain permanent residence documents in

France after the Brexit vote

Even though EU law continues to apply fully to UK nationals during the period of the

Brexit negotiations, UK nationals wishing to obtain a permanent residence document

in France have been, either:

 facing unnecessary administrative hassle

172

; or

 not allowed to apply at all and told that all applications from UK nationals were sus-

pended until the outcome of the Brexit negotiations is known or because France

was in a state of emergency

173

, or told that no such cards were required

174

; or

 more recently, issued with temporary residence cards when applying for (and hav-

ing a clear right to) a permanent one

175

3.2.2. Excessive requirements

Once the application process starts, it does not always go smoothly. Excessive require-

ments, beyond those permitted by Directive 2004/38, are obstructing the process of

obtaining a residence document by EU citizens and their family members. Those mo-

bile EU citizens who do not have a fixed and permanent employment contract (such as

the self-employed, interim workers, jobseekers, students, pensioners and other self-

sufficient persons) face particular difficulties proving their right to residence in their host

Member State. Excessive requirements are reported especially by EU citizens whose

non-EU family members are applying for a residence card. Moreover, citizens who have

obtained the right to permanent residence are being told to jump through additional

administrative hoops beyond those provided for in Directive 2004/38.

3.2.2.1. Workers

Directive 2004/38 provides that in order to issue EU workers with a registration certifi-

cate, Member States may only require to see a valid national ID card or passport and

evidence that they are employed or self-employed

176

. Several self-employed citizens,

170

Three YEA enquiries highlighted this. One enquirer mentioned that only certain documents, like utility bills

accepted, child’s birth certicate with both names on it was disregarded as irrelevant.

171

Enquirers reported having difculties proving their relationship without it being legalised but were told that

in order to enter into a registered partnership in Spain one of them had to be a Spanish national or resident in

Spain for >10 years); Another enquirer mentioned that the city of Barcelona had eliminated the local register of

de facto unions thus making it difcult to prove a “durable” relationship.

172

A pensioner mentioned being referred by their local préfecture to a préfecture of a regional capital (not

necessarily easy for a retired person to reach; Another enquirer was told to book another appointment, as the

appointment time slot was insufcient to process their application; Another UK national was asked to provide

unnecessary to documents, such as medical certicates.

173

A pensioner was told by her prefecture (Vendee) that the right to apply for residence cards did not exist

anymore due to emergency measures and that the issuance of such cards was prohibited by the military.

174

Four YEA enquirers mentioned this.

175

Generally cards were valid for 5 years but in one case a one-year renewable card was issued. 8 YEA enquir-

ers reported such difculties.

176

Article 8(3).

Freedom of Movement in the EU: A Look Behind the Curtain

however, reported being required to provide evidence of sufficient resources

177

and/

or health insurance

178

, despite providing clear evidence of being self-employed. Other

excessive requirements included having to provide tenancy agreements, statements of

accounts stamped by an accountant

179

, evidence of divorce (from 20 years ago)

180

being told that they had to provide evidence of working as an employee

181

Those employed have also reported being asked to provide evidence of sufficient

resources and private health insurance in order for their non-EU family members to

be issued with a residence card

182

or having to provide a confirmation certificate from

the tax office that the citizen had deposited their employment contract there

183

. Those

working part-time

184

or on interim contracts

185

faced particular problems, especially as

regards their non-EU family members’ obtaining residence documents, as such em-

ployment was not accepted as sufficient evidence of them being a “worker”.

3.2.2.2. Job-seekers

Pursuant to Directive 2004/38 and CJEU case law, jobseekers are allowed to stay be-

yond the initial three months up to at least six months, and cannot be expelled, if they

are actively looking for a job and have a genuine chance of finding one

186

177

France: A self-employed IT professional who paid all her contributions and taxes in France was denied regis-

tration by her prefecture on the ground that her income, amounting to €700/month was not sufcient. Additional

income that she had from Poland was not taken into account; France: A family member was denied the op-

portunity to apply for a residence card in France because the EU spouse (a freelancer) could not provide a work

contract or evidence of sufcient resources; Germany: A British citizen lived in Germany as an artist on a very

low income. His non-EU wife was earning the bulk of the family income. The German authorities questioned his

right of free movement because he was not earning enough; Two similar cases were reported concerning Cyprus.

178

France and Cyprus.

179

France: A certicate of accommodation was required even though a rental contract in both names and

landline bills in the non-EU spouse’s name were provided; A similar issue arose in Cyprus.

180

Cyprus.

181

Ireland The non-EU spouse of a Bulgarian national applied for a residence card in Ireland. The couple were

self-employed. The wife had also worked for a period of time. However, the Irish authorities issued them with

residence documents of six months duration and refused to issue a ve year residence card unless the couple

can demonstrate that the EU wife was actually employed. Finland: (see case study in Section 3.3.6 below).

182

This issue arose in France, Germany, Cyprus, Finland and Ireland. For example in Ireland a French univer-

sity researcher was required to provide payslips for the past three months to support his request for his non-EU

wife (and their 18 month old French national son) to join him in Ireland.

183

Greece.

184

Sweden: The family member of a part-time worker in Sweden was denied a residence card (18 months after

applying) because his EU spouse’s salary was considered too low. The EU spouse was working full time at the

time when he applied but later cut down her hours to take language classes; Germany: A Czech family lived in

Germany for three years. The father worked part-time as a reman, the mother was on maternity leave. They

were expelled on the grounds that the citizen did not work there, his part time work contract was not accepted.

They were given one hour to pack and were then taken to the border with their baby by the police.

185

Belgium: Two interim workers reported being told that evidence of such work was not sufcient and they had

to provide a contract lasting at least three months in order to be allowed to stay; France: A Belgian national who

had a one year contract was required to show an open ended contract so that their family member could get a

residence card in France, because that family member had entered on short stay visa; France: An EU national,

who had been working on weekly and monthly contracts in France for over a year, was required to present a

contract of at least 3 months duration in order to be able to register his non-EU family member; France: A family

member of an EU worker on an interim contract was denied residence in France; Austria: A UK national moved

to Austria with her Turkish husband and was told she had to be working full time in order for her husband to be

allowed to work. Once she presented evidence of full time employment she was told that she needed to be work-

ing for at least 3 months before her husband had the right to work. Norway: An EU citizen working and paying

taxes in Norway for the past year wanted to have his family reside with him there. However, as his work contract

was renewable every three months, the authorities were not convinced that he could support his family in Norway.

186

Recital 9 and Article 14(4)(b) and Cases C-292/89 Antonissen, C-67/14 Alimanovic.

3. Obstacles to Residence

Citizens looking for a job in another EU country have reported being denied registration

until they find a job and provide evidence of working

187

, and being told that they are not

allowed to stay unless they find a job within a set time period

188

. One jobseeker in Flan-

ders was even told that he had to find employment in a Dutch speaking company. A

catch 22 situation was reported in Poland, where an Italian national wanted to start his

own business but was not granted authorisation to do so because he could not provide

evidence that he was resident in Poland. He could not register and obtain a residence

document unless he proved he was working. Moreover, a jobseeker in Belgium was

denied a registration certificate because she could not show that she had a separate

bedroom from her co-tenant (who was her de facto partner).

3.2.2.3. Students, pensioners

and the self-sucient

Directive 2004/38 provides that, in order to be issued

with a registration certificate, students need to declare

that they have sufficient resources and must show evi-

dence of health insurance, while pensioners and those

who are self-sufficient must provide evidence of suffi-

cient means and comprehensive sickness insurance

189

Paradoxically, while workers are being asked to pro-

vide evidence of sufficient resources, self-sufficient

persons are told to prove they are working in order be

issued with a residence document. Citizens report that

national authorities do not seem to be aware of the

right to residence on the basis of sufficient resourc-

190

.This seems to also affect frontier workers, who

are denied a residence card in their country of resi-

187

France: Three UK job-seekers reported that they and their family members were refused registration in

France unless they could provide 3-6 months of payslips – evidence of being offered training with a job pros-

pect at the end was not sufcient. Ireland: A non-EU family member was denied a residence card in Ireland

because her EU spouse lost his job and was a job seeker. She was asked to provide her spouse’s employment

contract, proof of address by way of rental agreement and a letter from the tax authorities in order for her to

be accepted.

188

Two job seekers in Belgium reported being told that they had three months to nd a job otherwise they

could not stay in Belgium; A Dutch job seeker in Belgium received an order to leave the territory in one month

after not being able to nd a job for six months. He was living with his sister and was due to start a training via

the Belgian job center; A Greek national was told to leave Belgium if he did not nd a job in 4 weeks; A Spanish

job seeker applied for a residence document after residing in Finland for 3 months and provided evidence of

nancial resources and health insurance. His application was refused and he was orally threatened with expul-

sion on the ground that he was not employed; A Bulgarian citizen worked less than one year in Germany and

sought alternative employment. She received a letter requiring her to prove that she had sufcient resources

to continue to live in Germany. On meeting with the foreign ofce, she was given two weeks to nd a new job.

189

Article 8(3).

190

For example, in Germany: the American wife of a self-sufcient EU national was refused a residence card

in Germany because the EU national did not have a work contract – he was working mostly outside Germany

and his income from other sources was not accepted as evidence. She wished to reapply after her EU spouse

obtained a work contract but a new appointment with the immigration authorities not possible before the ex-

piry of her Schengen visa – this caused signicant stress to the couple; Sweden: Bulgarian job seekers were

refused residence in Sweden despite the applicant’s brother providing a guarantee to support for the whole

family; Spain a freelance translator who moved to Spain and wished to set up as self employed there was

not given the opportunity to register as a self sufcient person, even though she had evidence of sufcient re-

sources – she was told to come back and provide evidence of working by way of invoices, other evidence such

as registration for tax and social security – evidence of her work in the UK was not accepted; Further similar

enquiries came from citizens wishing to move to France (3 enquiries), Italy, Spain and Finland.

Freedom of Movement in the EU: A Look Behind the Curtain

 A German national writes:

“I have lived in Sweden and worked in

Denmark for the past 6 years. I arrived

in Sweden in 2010 and have registered

and lived there up until now. I have ap-

plied for a permanent staying permit but

have been refused. The Swedish Immi-

gration Agency gave the reason for the

refusal that I have not worked 5 years

continuous to have sufficient assets

for me and my family. I have worked in

Denmark for the past 5 years and have

submitted my pay slips covering this pe-

riods. Please kindly advise me because

I have appealed against their decision in

the Swedish Immigration courts”.

dence because they cannot provide evidence of working there

191

. The following case

is illustrative: 

As regards students, besides being asked to show evidence of a set amount of mini-

mum financial resources

192

, they are also asked to provide proof of accommodation

193

or other excessive documents such as birth certificates, police records and fiscal num-

bers

194

The following case demonstrates the problems such citizens face, especially when try-

ing to obtain a residence card for their non-EU family members. 

191

Sweden: A family member of a frontier worker was refused a permanent residence card in Sweden; Bel-

gium: A Frontier worker resident in Belgium but working part time in the Netherlands and another working in

the UK and returning to his wife in Belgium on the weekends were denied residence cards on the ground that

they could not provide evidence of working in Belgium; Belgium: A Dutch frontier worker who came to reside in

Belgium with his family was given an order to leave the territory within 30 days as he did not provide all required

documents within 3 months. Some documents were impossible to obtain within a short timeframe (e.g. his

daughter’s birth certicate from the US – which the authorities required to be recent) and as regards evidence

of health insurance he did not seem to have been informed of the rules that he could remain insured in the

Netherlands and provide a from S1 as evidence of comprehensive healthcare cover. He was trying to nd out

how to take insurance in Belgium and was being told by the mutuelles that that was not possible. Also in Italy:

the municipal authorities refused to register a German national who planned to reside in his house in Italy for 2

weeks each month and work the rest of each month in his private practice in Germany.

192

Italy: one enquirer reported being required to provide a work contract with a minimum salary of €500/month

or a health insurance contract for €5000; another enquirer had to show €5,800 in a bank account; Belgium:

€1,300 per/month was required; UK: a declaration of sufcient resources was not accepted, bank statements

required.

193

This was reported as regards Portugal and Italy. In the latter, a student was required to provide 1 year lease.

194

This was reported as regards Portugal and Belgium.

3. Obstacles to Residence

 “I am trying to get some information regarding getting a 5 year residence permit for my

wife, who is a US citizen (I’m Polish).

We moved to Germany last year as masters students [...]. Before my wife’s 3 months were

up, we went to the immigration ofce in Berlin to apply for a residence permit for her. We

were not yet employed at the time, and they told us we would have to come back when

we have work. They issued her a 6 month residency permit and said they could give her

a 5 year permit when I have a job that pays 400 Euros a month or more.

I began working on a freelance contract (as a writer for a language school) last month, but

I haven’t received any payments that would total 400 Euros in a month yet, but my wife’s

permit was expiring soon so we went back to talk to the immigration ofce again. My wife

is currently working as an online English teacher for a company based in Beijing, China.

Her income is about 1200-1400 Euros per month.

The immigration ofcer became very angry when he saw my freelancing contract and it

seemed he was trying to tell me that I am not allowed to undertake this kind of employ-

ment in Germany and am breaking the law by doing so. I’m pretty sure that is not true

as the tax ofce issued me a tax ID number specically for freelancing purposes and the

company I work for has hired me legally. It is my understanding that as an EU citizen, I am

allowed to take up freelancing work in Germany.

We were also told that my wife’s contract doesn’t count as employment because the

company is not based in Germany. She received a 4 month extension on her residency

permit and now we have to try again in September.

When we moved here, we thought that getting her a residence permit as the spouse of an

EU citizen would be a simpler process, but we feel like the Berlin immigration ofce keeps

changing the rules on us.”

3.2.2.4. Dependant family members who are also EU nationals

EU nationals who are neither working, nor have sufficient resources in their own right,

can reside in another Member State as a family member of an EU national who is law-

fully resident

195

. Citizens in this category, who had no intention of taking up employ-

ment, have reported facing difficulties proving their right to residence

196

3.2.2.5. Other excessive requirements

Citizens have also reported being asked to provide birth certificates, not always easy

for them to obtain

197

, to show evidence that they deregistered from their previous

country of residence

198

, evidence of insurance

199

, a passport, despite already having

provided a national ID card

200

, utility bills and registration of a tenancy agreement

201

rental agreement in the names of both spouses

202

, and even a certificate of celibacy

203

3.2.2.6. Excessive requirements after 5 years of residence

After five years of lawful, uninterrupted residence in their host Member State, EU

nationals and their family members have the right to remain there indefinitely and un-

conditionally

204

. Articles 19 and 21 of Directive 2004/38 provide that upon receiving

an application for permanent residence national authorities can check the duration of

residence and that continuity of residence “may be attested by any means of proof in

195

Article 7(1)(d).

196

Belgium: A Greek wife of a Greek national working in Belgium, who had no intention to take up employ-

ment herself, was told to wait for ten days in order to nd out whether the Belgian authorities will accept her

application and give her a national ID number. She was told that if she were to receive this number she would

have to present them within a month with a CV, proof of registration at the registry of the Ministry of Employ-

ment and proof that she is seeking employment. Her request to be registered as an EU family member was

rejected and she was told that unless she seeks employment she cannot reside in Belgium; Italy: A British wife

of a British national working in Italy had to provide a rental contact and letters from the landlord and from her

husband expressing their consent to her residence at the said address. France: A German, de facto partner

of a German national working in Germany had to provide evidence that she resided with him in France. Bank

accounts and children’s school reports were not accepted. All utility bills were in her partner’s name. She was

not issued with a residence card, as a result she could not register her car in France, which was necessary for

her daughter to take driving lessons.

197

Italy: A Romanian citizen in Italy was required to provide a birth certicate with a translation performed ex-

clusively by an Italian notary; Italy: A Slovak worker had to provide a birth certicate in Italy; Belgium: A Belgian

commune required birth certicates from a US/UK couple in order to “validate” their apostilled US marriage

certicate. (The US national could not obtain a birth certicate as she was a refugee from Vietnam); Belgium:

A Dutch national was asked to provide an apostilled birth certicate and an ofcial document regarding his civil

status in order to be registered in Belgium – he was told that these were required because of Belgian rules on

the population register. France: A Chinese family member applying for a residence card in France was required

to provide a birth certicate which was very difcult to obtain; Three other enquiries on similar facts were re-

ported concerning France and Belgium.

198

Belgium: A German student in Aachen who wanted to register in Belgium was told he had to de-register in

Germany; Spain: A non-EU family member was required to prove that she had terminated her residence in the

UK in order to register in Spain. An enquiry on similar fact concerned the Netherlands.

199

France.

200

France.

201

Ireland.

202

Ireland and Cyprus.

203

Luxembourg: An Irish jobseeker in Luxembourg had to provide a certicate of celibacy from Ireland, which

was impossible to obtain as Ireland does not issue such certicates.

204

Article 16 of Directive 2004/38. In certain cases, as outlined in Article 17 of the Directive, the right to perma-

nent residence may be acquired earlier than in ve years.

Freedom of Movement in the EU: A Look Behind the Curtain

use in the host Member State”. As regards the “lawfulness” of residence during those

five years, as the burden of proof is on the applicant at the time of application, there

is nothing precluding the Member States from requiring proof that during the relevant

five years the citizens was satisfying the residence conditions of Article 7(1) of Direc-

tive 2004/38. What Member States cannot do, however, is require such evidence for

more than the relevant five year period – or accept only a certain type of proof or im-

pose other arbitrary requirements.

Despite this, citizens who have acquired the right to permanent residence on the ba-

sis of Directive 2004/38 and have applied for a permanent residence document, have

reported needing to provide evidence of:

 Sufficient resources

205

(in some cases by way of a minimum set income or bank

account deposit

206

) or healthcare cover

207

– at the moment of applying for the per-

manent residence card and going forward;

 Working

208

or having paid social security contributions

209

during the five years –

even though the citizen had sufficient resources during that time. (This is a particu-

lar issue in Italy);

 Knowledge of the local language and culture

210

; and

 Notarised confirmation from neighbours attesting to the continuity of residence

211

Citizens also reported having to go through the entire application process again (and

having to prove that they satisfied the residence conditions) when trying to have their

205

This was reported as regards Ireland, France and Sweden. In the latter a student was refused a permanent

residence card on the ground of a lack of sufcient resources because she had claimed family benets – her

non-EU spouse’s income was not taken into account.

206

Greece: where an EU citizen resident there for the last 33 years (and owning properties) was required to

provide a certicate showing that she had at least €4,000 in her bank account when applying for a renewal of

her residence card which had been expired for some time; The same amount of €4,000 was also required of

an 18 year British national who was a permanent resident in Greece and who needed to obtain a permanent

residence card so he could apply for a driver’s licence; In Cyprus proof of monthly income of €1,200 was re-

quired to issue a residence card to 5yr old child of parents who already had permanent residence status; Two

similar cases were reported regarding Italy.

207

France: where evidence of health insurance was required from a family member of a Portuguese national

living in France since 1966; Italy: A dependant EU citizen was granted a permanent residence card in Italy.

The same day a municipality ofcial went to the citizen’s house to retract the certicate of permanent residence

unless private health insurance was obtained by the citizen.

208

In Italy, a Romanian national had to prove 10 years of residence and that she was working; Also in Italy, the

Italian authorities refused to let a UK national apply for a permanent residence card because he could not pro-

vide evidence of a continuous work contract or being registered as self employed in the last ve years. Instead

the citizen provided evidence of lawful work, and was being paid each time he completed a job. This was not

accepted as being ‘continuous’ work and was not taken into account as being evidence that the citizen had

sufcient resources. A further four enquiries on similar facts concerned Italy and two the UK.

209

Italy: A Romanian citizen resident in Italy for 10 years, and working intermittently (in the ‘voucher’ system),

was refused a permanent residence card as she could not provide evidence of 5 years of social security con-

tributions. This prevented her from accessing healthcare in Italy which she was in need of.

210

While this requirement can be imposed on non-EU nationals who are not family members of EU nationals

and applying for the status of long term resident pursuant to Directive 2003/109, it cannot be required within

the scope of Directive 2004/38. Italy: A family member had to attend Italian classes in Italy and demonstrate

civil and cultural knowledge; Czech Republic: An EU citizen had to prove knowledge of Czech in the Czech

Republic.

211

Romania: A German national had to provide this evidence when applying for a permanent residence card

in Romania, despite having provided evidence of his continuous self-employment. He had difculty in obtaining

such evidence from neighbours.

3. Obstacles to Residence

permanent residence card updated after a change of address within Italy

212

or when

returning after spending time in another Member State

213

Moreover, it appears that in France there is a requirement that the five year period of

lawful residence must have been completed immediately preceding the date of ap-

plication. The portal of the French administration, on its page outlining the conditions

for acquiring a permanent right of residence as an EU citizen in France

214

, makes

repeated references to “les 5 années précédentes”. Citizens are required to provide

evidence that they have been lawfully (and not just continuously) resident in France

in the 5 years preceding their application. This same issue has been reported in Bel-

gium

215

and Italy

216

In Malta, citizens who have the right to permanent residence, have reported needing

to provide proof that they are working in order to be able to access healthcare.

In Spain, a Croatian national resident there since 2010 was told that she must com-

plete 5 years from the date of Croatia’s accession to the EU in order to be able to

apply for permanent residence

217

3.2.3. Delays, delays and more delays

Directive 2004/38 provides that EU citizens must be issued with a certificate of reg-

istration immediately which must state their personal details and the date of registra-

tion

218

. As regards non-EU family members, they must be issued with a certificate of

application immediately and then with a residence card, no later than six months from

the date they submit their application

219

. As pointed out in the Commission’s guidance

for better transposition and application of Directive 2004/38

220

, this “maximum period

of six months is justified only in cases where examination of the application involves

public policy considerations”. As regards permanent residence documents, Directive

2004/38 provides that these must be issued to EU nationals “as soon as possible”

221

and to their family members again, within six months of the submission of their applica-

tion

222

212

Italy: A Romanian national resident in Italy since 2002 and holding a permanent residence card, moved to

Rome and was told that his card was no longer valid because it was issued by another municipality. He could

not get his residence card amended because he could not show a permanent job contract or €5,000 in a bank

account. Italy: A Polish national resident in Italy for 10 years was told that her move to a different municipality

‘reset’ her residence time and she had to wait another 5 years before applying for a permanent residence card;

Also in Spain citizens reported having to reapply for a permanent residence card upon changing address.

213

Belgium: A Greek pensioner, who was a permanent resident of Belgium, but frequently spent time in

Greece, found out that she was deregistered by her commune when she requested a ‘composition de me-

nage’. Her pension was also not paid for this reason. She was told she had to re-register as resident.

214

https://www.service-public.fr/particuliers/vosdroits/F22116

215

An EU citizen resident in Belgium for 11 continuous years was told he could not apply for permanent resi-

dence as a subsequent 18 month long absence (for work in France) had “reset” his residence period. Also,

in another case, a Belgian commune refused to take into account the rst six months of residence as only a

temporary card was held by the family member during that time.

216

A pilot resident in Italy for 10 years was denied a permanent residence card because he had stopped work-

ing in the previous two years.

217

This is contrary to the CJEU’s judgment in Cases C-424/10 Ziolkowski and C-425/10 Szeja – See also sec-

tion 4.9 below.

218

Article 8(2).

219

Article 10(1).

220

COM(2009) 313 (http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52009DC0313).

221

Article 19(2).

222

Article 20(1).

Freedom of Movement in the EU: A Look Behind the Curtain

It is evident, given the number of enquiries received on this issue, that Member States

do not always respect these rules and recommendations. Delays in processing ap-

plications and issuing residence documents have been a long standing issue flagged

by citizens in their enquiries to YEA. In particular, in the period between January 2015

and June 2017, delays in processing applications and issuing documents have been

reported in 215 enquiries, namely as regards:

 Registration certificates to EU nationals – at least 16 enquiries

223

– with delays

over 15 months mentioned in Austria

224

;

 Certificates of application to non-EU family members – at least 18 enquiries

225

;

 Residence cards to non-EU family members – at least 156 enquiries

226

, with Ire-

land, Sweden and the UK accounting for 46, 45 and 41 enquiries respectively.

 Permanent residence documents

227

– at least 25 enquiries

228

, with the UK and

Sweden accounting for 12 and 6 respectively.

The consequences of these delays are manifold, especially for non-EU family mem-

bers who have faced expiring visas and the inability to work, to travel visa-free in the

EU, to open a bank account and to obtain a personal identification number (which is

essential to daily life in several countries

229

). Many have been dismissed or fear dis-

missal for this reason

230

. Moreover, certificates of application or temporary residence

cards have been issued containing an express restriction on the right to work

231

The difficulties are exacerbated when national authorities retain original passports,

resulting in citizens being unable to leave the country while their application is being

processed. This used to be a serious issue in the UK

232

, but has also been reported

several times in Ireland

233

223

Number of enquiries per country: Belgium (4); Sweden (3); Ireland (3); France (2); Austria (2); UK (1); Germany (1).

224

Also, in Austria a Croatian national had to provide four months of payslips in order for this wife and children

to be issued with registration certicates. These were needed to apply for family allowance.

225

Number of enquiries per country: Ireland (5); UK (5); France (2); Malta (2); One in each of Sweden, Ger-

many and Belgium.

226

Delays up to 2 years have been reported regularly in Sweden. The Swedish migration agency website has

an online tool which provides for an estimated time frame to a decision. This indicates that family members

of EU nationals must wait for longer than 18 months to obtain a decision on their residence card application

(https://www.migrationsverket.se/English/Private-individuals/Moving-to-someone-in-Sweden/Time-to-a-deci-

sion.html). Delays of over 1 year have been reported in the UK. In France over 18 months was needed to pro-

cess application from family member of a researcher. Number of enquiries per country: Ireland (46); Sweden

(45); UK (41); France (8); Spain (3); Malta (2); Denmark (3); Greece (2); Germany (2); Czech Republic (1);

Norway (1) Portugal (1).

227

Issued to EU citizens and to non-EU family members.

228

Number of enquiries per country: UK (12); Sweden (6); Cyprus (4); Belgium (1); Ireland (1); France (1),

Czech Republic (1).

229

See section 3.3 below.

230

UK (6), Ireland (4).

231

UK (2); This was also a problem in Spain, as explained in section 3.2.1.4 above and Annex 1.

232

Prior to the introduction of the passport return service in February 2017, original passports had to be provid-

ed, copies were not accepted. These were then withheld during the application process for periods of as long

as six months. This created serious difculties for people who may have needed to travel in the meantime. YEA

received at least 23 enquiries in relation to this since 2015. In one case The UK authorities would only return

the passport of a family member whose application was refused in the event where he returned to his country

of origin, Canada, preventing the couple from travelling to Ireland. In another case the UK authorities retained

the passports submitted with the application for a residence card for ve months, and advised the couple that

if they sought return of the passports, this would serve to cancel the residence card application. The non-EU

citizen was not given any assurance by the authorities that he could return to the UK if he travelled out of the

country while his application for a residence card is pending.

233

At least ve YEA enquiries evidence this.

3. Obstacles to Residence

3.2.4. Residence documents issued with limited validity

Once citizens receive their residence documents, they are not always what they ex-

pected them to be. EU citizens and their family members have reported being issued

residence documents with limited validity or being issued with temporary documents

when they applied for, and were entitled to, a permanent one.

3.2.4.1. EU nationals

Regarding documents issued to EU nationals, Directive 2004/38 is silent on their pe-

riod of validity. It merely specifies that registration certificates must include, among

other things, the date of issuance

234

. The implication, presumably, is that their validity

period is to be open-ended, but this is stated neither in the Directive nor in the Com-

mission’s 2009 Communication

235

Despite this, EU citizens report being issued with registration certificates with limited

validity. For example:

 a Belgian worker in Bulgaria has reported that for two years he received residence

documents with annual validity and was then issued with a document valid only

for six months. This was because his open-ended job-contract had a six month

probation period

236

. As a result, he could not obtain a driver’s licence (as a 5 year

residence document was required for that)

237

 A self-sufcient, self-employed Bulgarian national resident in Ireland, could only

receive registration certicates valid for six months at a time. Only evidence of xed

employment would enable her to obtain a residence document with longer duration.

 A Czech student mentioned that the residence document he was issued with in

Croatia was limited to the duration of his studies and a French pensioner, with suf-

ficient means, also complained about the prospect of having to renew a residence

document every six months in Croatia. The relevant webpage of the Croatian Min-

istry of Interior mentions that EEA nationals are issued with a registration certificate

valid “up to 5 years”

238

Directive 2004/38 is also silent as regards the period of validity of permanent resi-

dence documents that EU nationals can request after five years of lawful, continuous

residence

239

. It is true that permanent residence cards for EU nationals are optional,

but this should not be a reason to deny them or limit their validity in any way if the EU

national has clearly acquired the right to permanent residence. This would be at odds

with the very purpose and spirit of Directive 2004/38.

As mentioned above

240

, this has been an ongoing issue since Brexit in France, where

UK nationals have been issued with temporary residence cards when applying for (and

234

Article 8(2).

235

The Commission’s Your Europe website does state that registration certicates must be valid indenitely

(http://europa.eu/youreurope/citizens/residence/documents-formalities/registering-residence/index_en.htm).

This would be in line with the principle that these documents are merely evidentiary and not constitutive of EU

citizens’ rights. A main purpose of Directive 2004/38 was to do away with residence cards for EU nationals and

the mistaken impression generated that it is the card the gave the EU citizen the right to residence and not the

other way round.

236

This was in 2016, long after transitional arrangements for Bulgarians in Belgium ended, thus no restrictions

should have been placed on Belgians in Bulgaria.

237

Which is a separate violation of Article 25 of Directive 2004/38.

238

http://stari.mup.hr/120032.aspx

239

Article 19(1).

240

See section 3.2.1.6 above.

Freedom of Movement in the EU: A Look Behind the Curtain

having a clear right to) a permanent one. But Brexit aside, other EU nationals have

faced this issue in France as well. For example, a Romanian national lawfully resident

in France since 2006 has been trying to obtain a permanent residence document for

several years and has each time been issued with a document with annual validity.

This issue was also reported in Malta

241

and Belgium

242

3.2.4.2. Non-EU family members

As regards non-EU family members, the Directive does set out clear rules on the valid-

ity of their residence documents. Residence cards are to be valid for five years from

the date of issue or “for the envisaged period of residence of the Union citizen, if this

is less than five years”

243

. Permanent residence cards must be valid for 10 years and

renewable automatically

244

Despite these rules, non-EU family members of mobile EU citizens have had the dura-

tion of their residence documents limited:

 to the length of their EU spouse’s employment situation, even though no intent

was expressed by the EU national that they wished to leave prior to the end of five

years

245

;

 to the remaining period of validity on their passport

246

;

 or, for no apparent reason

247

3.2.5. The right to residence is denied without a valid reason

Pursuant to Directive 2004/38, a right to residence

248

can only be denied on public

policy, public security or public health grounds or, if there is abuse of rights, such as

a marriage of convenience or fraud

249

. Despite these rules, national authorities can be

quite “inventive” when it comes to reasons for refusing a residence document. Here are

some of the most striking examples:

 A 14 year old Chinese stepson of a UK national working in France was refused a

residence card on the grounds that he was under 18

250

. He was told he could only

241

Where a pensioner was issued with a temporary residence card instead of a permanent one to which he was

entitled. This lead to him having to provide additional documents to the health authorities to prove his entitle-

ment to public health care.

242

Where a French national has not been able to obtain conrmation that her residence card issued for 5 years

was a permanent one.

243

Article 11(1).

244

Article 20(1).

245

In France, one enquirer reported having their residence card limited to one year and another to six months;

An enquirer in Ireland had his card limited to six months. For more on this see section 4.12.

246

In Ireland, where a family member’s residence card was limited to less than 2 years. When, upon the re-

newal of his passport, the family member requested a new residence card – as his current one had his old

passport number on it and thus could not be used for visa free travel – he was told that he would be issued

with one with the same validity. He could only re-apply for a new one 3 months before the expiry of his current

card; In Cyprus, where a family member who applied for permanent residence card was issued one valid for 5

years only based on the validity date of her passport.

247

In Germany to one year in one case and to three years in another case where a citizen’s same sex partner

in a civil partnership had a residence document issued to them in a different format; In the UK (pre-Brexit) to

ve years instead of 10 for a permanent residence card.

248

Article 27.

249

Article 35.

250

This results of the way France transposed Directive 2004/38: residence cards are required and delivered

only to 18+ or 16+ who intend to work in the country.

3. Obstacles to Residence

apply for a document allowing him to travel in and out of the country, a ‘circulation

transfrontiere’. This was in turn refused by the Prefecture de Police because he had

entered France on a short term Schengen visa and because none of his parents

were EU nationals (step-fathers were not accepted). The police gave two options:

1. going back to China to apply for a long term family or student visa (a long term

visa was not issued the first time as the consulate in Beijing insisted it was not

needed for applying for a residence card); or

2. staying in France until the age of 18, without leaving the country, and then ap-

plying for a residence card as an adult!

 The adult children of an Italian worker, aged 22, 23, and 24 (the latter being dis-

abled and completely dependent on her father), were refused residence cards in

Germany because they were over 21 years old. No attempt was made to examine

their individual circumstances or dependency on their father.

 An American spouse of a UK national residing in France was denied a residence

card on the grounds that “she lives on a boat”. She was told she had to have a fixed

place of residence

251

 The Belgian authorities refused

252

to recognise a child guardianship order made by

the UK courts in respect of a British citizen who is a legal guardian to her nephews

as a result of the mother’s mental health. The Belgian authorities are thus refusing

to register the two children as residents of Belgium (their application was being

processed for over 18 months) and have refused to accept that the two children are

the citizen’s dependents for tax purposes.

 A Bulgarian national, whose Bulgarian husband worked in Slovenia, came to join

her husband and also to look for a job. Their 8-year old child remained with his

grandparents in Bulgaria to finish the school year. The citizen was refused a resi-

dence card on the grounds that she left her son in Bulgaria.

 A UK national resident in Denmark for 35 years, whose wife and children are Dan-

ish nationals, moved to Sweden for three years during his daughter’s studies there.

He then returned and got a job with a local council in Denmark. Three years later,

he got arrested while at work and told he had no right to work in Denmark. He

was later deported and prohibited from entering Denmark for six years, a situation

which is having serious consequences for his family.

 The Argentinian wife and baby of an EU student were refused residence in Sweden

because the EU spouse was enrolled on a course that was under one year long –

they were told they had to go back to Argentina and had no right to be Sweden

253

3.2.6. “You are required to leave the territory…”

3.2.6.1. Expulsions on economic grounds

Member States may deny EU nationals and their family members the right to residence

if they no longer satisfy the conditions in Article 7(1) of Directive 2004/38 and become

an “unreasonable burden” on their social assistance system

254

. Expulsion, however, can-

251

In the meantime her Schengen visa expired as the rst appointment to register was available 3 months after

entering France. The citizen needs to return to the US for personal reasons and fears not being able to return

and obtain a residence permit in France due to having overstayed her Schengen visa.

252

In breach of Article 21(1) of Regulation 2201/2003 on jurisdiction, recognition and enforcement of judgments.

253

For more on the issue in Sweden see section 3.3.1 below.

254

Article 14(1) and (2).

Freedom of Movement in the EU: A Look Behind the Curtain

not be an automatic consequence of the EU citizen or their family member seeking social

assistance. Their individual circumstances must be examined before concluding that they

have become an “unreasonable burden”. Moreover, EU nationals who are workers, self-

employed or active jobseekers who demonstrate that they have a genuine chance of nding

a job, cannot be expelled on economic grounds and neither can their family members

255

Despite this, EU nationals and their family members continue to have their residence

rights denied and to be threatened with expulsion on economic grounds

256

This is still an ongoing problem in Belgium

257

, where several jobseekers reported being

told to leave or being served with an expulsion order if they did not nd a job in a certain

period of time

258

and where frontier workers had trouble proving their right to residence

and faced expulsion for not providing all the requested documents within 3 months

259

EU nationals also reported being threatened with deportation or, even deported, on

economic grounds from Germany

260

, Austria

261

, Finland

262

and Norway

263

255

Recital 16 and Article 14(4).

256

See also the European Parliament’s study of the Obstacles to the right of free movement and residence for

EU citizens and their families, Chapter 9

(http://www.europarl.europa.eu/thinktank/en/document.html?reference=IPOL_STU(2016)571375).

257

Ibid, Chapter 9, pages 122 and 124.

258

See Section 3.2.2.2 above.

259

See Section 3.2.2.3 above.

260

A Luxembourg citizen lost his job in Germany, but was nancially supported by his German ancée. The

German authorities issued him with a deportation order; A Polish pensioner moved to Germany to live with her

son (a naturalised German national) due to old age and health issues. As her Polish pension only covered part

of her living expenses, she applied for welfare benets, upon which the German authorities issued her with a

deportation order, claiming she had forfeited her right of free movement; A Czech family lived in Germany for

three years. The father worked part-time as a reman, his mother was on maternity leave. They were expelled

on the grounds that the citizen did not work there, his part time work contract was not accepted. They were

given one hour to pack and were then taken with their baby to the border by the police; A Romanian citizen

residing in Germany with her Hungarian registered partner received a letter requesting her to leave the country

within a few weeks. She claims to have resided in Germany legally for a year and a half, her registered partner

has been working legally in Germany for 20 years and she has followed all rules necessary. She does not un-

derstand on what grounds she could be expelled.

261

A minor child of a Bulgarian worker was given a few weeks to provide evidence of health insurance otherwise

she would have to leave Austria. The Bulgarian authorities refused to issue a form S1 on the ground that (a) this

is only issued to adults and (b) the child was still registered as resident in Bulgaria. The Austrian health insurer then

required Form E104 to co-insure the child with her mother in Austria, however as least 3 months are needed to

obtain this form from Bulgaria. The mother is the sole carer of the child who goes to school in Austria. She fears

the child will be deported if Form E104 cannot be obtained on time. The Austrian authorities seem to be disre-

garding the fact that pursuant to Article 28(3)(b) of Directive 2004/38 minors cannot be expelled unless there are

“imperative grounds of public policy”; A Romanian pensioner who received social support assistance was refused

an extension of his right to stay in Austria; A Greek national who was self-employed for 2.5 years now was a job

seeker – the local authorities were not sure he could keep his right to residence and receive a social allowance in

Austria. The authorities were not aware of Article 14 of Directive 20043//EC which is not transposed into Austrian

law; A retired Slovak citizen was living in her motorhome in Austria for two years. After her partner died she was

served with an expulsion order on the grounds of insufcient income; A Romanian citizen living and working in

Austria was temporarily unable to work. While he was in hospital, he received an expulsion order. Article 7(3)(a)

of Directive 2004/38 on the retention of worker status was not applied.

262

Finland: A German family where both spouses were jobseekers was served a deportation order in Finland

because none of them had a job, even though the husband was attending a training school and the wife had

previously worked but was on maternity leave while waiting for a vacancy at a language school; Finland: A

Spanish job seeker applied for a residence document after residing in Finland for 3 months and provided evi-

dence of nancial resources and health insurance. His application was refused and he was orally threatened

with expulsion on the ground that he was not employed.

263

A Spanish citizen applied for benets in Norway. She was threatened with expulsion. She was divorced but

she fullled the requirements to remain on the territory (as she had been a victim of domestic violence).

3. Obstacles to Residence

3.2.6.2. Expulsions on public policy grounds

Article 27 of Directive 2004/38 expressly establishes that the personal conduct of

the individual concerned must represent a “genuine, present and sufficiently serious

threat” to society and that previous criminal convictions should not in themselves con-

stitute grounds for restricting EU citizens and their family members’ free movement

rights.

A Swedish national, who had exercised her free movement rights by residing in other

Member States, reported being hindered from returning to her home country to reside

close to her children because her husband’s deportation order from Sweden is of

indefinite duration. The husband had been deported from Sweden in 2000 after serv-

ing a sentence for a drug offence and had since then resided in Germany and Spain

and held clean criminal record certificates from both countries. The Swedish courts

have been refusing to lift his deportation order. It does not appear that an assessment,

pursuant to Article 33(2) of Directive 2004/38, has been made in order to establish

whether the husband could be considered a “current and genuine” threat. Such issues

have also been reported in the UK

264

3.2.7. What happened to procedural safeguards?

Pursuant to Directive 2004/38

265

any denial of residence must be justified and the citi-

zen must be given an opportunity to appeal. Citizens have reported being issued with

decisions denying them the right to residence which were unsubstantiated

266

Another problem is the long waiting time after an appeal of a negative decision

267

There is no provision under EU law setting a time limit on issuing decisions in response

to an appeal of a decision to deny residence rights under EU law.

3.3. Residence documents and national

identication numbers as a prerequisite to exercising

rights and completing administrative formalities

Possession of a residence document “may under no circumstances be made a pre-

condition for the exercise of a right or the completion of an administrative formality”,

as long as the citizen can prove their entitlement by any other means. This much is

made clear in Article 25 of Directive 2004/38, which codifies various CJEU judgments

264

A Hungarian citizen living in the UK since September 2014 with his wife had travelled many times to the UK

previously. He was self-employed in the UK and his wife was in employment. He was refused entry to the UK

at a London airport because of his criminal record in Hungary, whereas he had already served his sentence.

Later he received a deportation order; In another case UK authorities issuing a removal decision against a Pol-

ish citizen simply on the basis of his past criminal conviction from Poland; In a further case, the UK authorities

detained a Latvian citizen in the UK on the basis that he was illegally working there.

265

Articles 30 and 31.

266

Belgium: A self-sufcient Italian citizen was denied residence in Belgium, no deadline for providing missing

documents was given and no motivation for the residence denial was provided; France: a refusal to issue resi-

dence card to a family member in France was not given in writing with due motivation; Spain: A citizen resident

in Spain for over 40 years was denied a permanent residence document without any reasoning; Spain: An

American citizen, married to a French citizen who submitted all the requested documents, had her application

for a residence card refused in Spain four times without a reason.

267

Ireland: The decision to issue the residence card to an extended family member dependant on the EU

national in Ireland was delayed and ultimately refused. The applicant appealed but received no response to his

appeal, resulting in him overstaying his temporary residence card. This caused him a problem with his employer

who required a residence permit in order for the family member to continue working; This same issue was

reported in two cases in Norway.

Freedom of Movement in the EU: A Look Behind the Curtain

3. Obstacles to Residence

in which the Court was categorical on this issue

268

. Moreover, while there is nothing

wrong in principle with a Member State having a population registry and issuing na-

tional identification numbers to its residents, such a registration system should not

become a disproportionate obstacle to EU citizens’ free movement rights, nor should

it lead to discrimination against EU citizens.

The reality on the ground, however, is often much different. Residence cards and/or

national identification numbers are often a prerequisite for administrative formalities

that are so crucial that it is impossible to have a normal life in the country without com-

pleting them. This section outlines the difficult situations that citizens find themselves

in when they are unable to obtain such residence documents or national identification

numbers.

3.3.1. The saga of the personnummer in Sweden

With the exception of, perhaps, only the UK, in no other EU country are EU citizens

and their family members facing more difficulties when trying to exercise their EU right

to residence than in Sweden.

Despite action already taken by the Commission

269

and the resultant change in

Swedish legislation

270

, citizens still report facing many difficulties in their daily life

as a result of being unable to obtain a personal identification number (“personnum-

mer”).

It is not an understatement to say that life is made very difficult indeed for anyone who

is unable to show evidence that they will be working in Sweden for over a year or un-

able to provide an S1 Form from their country of origin, evidencing that that country

will ultimately cover their healthcare costs in Sweden. Such citizens are not able to

obtain a personnummer and this number seems to be a prerequisite for undertaking

all of the following activities in Sweden:

 renting accommodation;

 opening a bank account;

 obtaining a credit card;

 taking out a mobile phone subscription;

 taking out a subscription with an internet service provider;

 collecting mail at the post office;

 obtaining medicine at a pharmacy;

 demonstrating medical coverage when seeking treatment at a clinic or hospital;

 registering a vehicle;

 being eligible for municipal services, such as garbage collection;

 registering for free language classes

271

;

268

Cases 48/75 Royer par. 50; 85/96 Martinez Sala par. 53; C-459/99 MRAX, par. 74; C-138/02 Collins par.

40. Also since the Directive, the Court repeated this in C-215/03 Oulane par. 17-18.

269

Infringement Case 2007-4081. The case was closed on 23 July 2014 without the matter being referred to

the Court of Justice.

270

That should allow EU nationals to access healthcare without a personnummer Förordning om ändring i

förordningen (2013:711) om ersättningar för vissa kostnader för gränsöverskridande hälso- och sjukvård, SFS

2015:882 (Ordinance amending Ordinance (2013:711) on the reimbursement of certain costs for cross-border

healthcare, SFS 2015:882, 10 December 2015) (http://rkrattsdb.gov.se/SFSdoc/15/150882.PDF).

271

YEA has received a signicant number of enquiries evidencing this. In 2017 (1 enquiry); In 2016 (7 enquiries);

In 2015 (8 enquiries). This refusal is in breach of the Swedish Education Act and the Alien’s Act which provide

foreigners with the right to follow courses, even without a personal number.

 signing an employment contract; and

 registering children in school or at kindergarten.

Moreover, and most importantly, employers refuse to hire applicants unless they have

a personnummer, which leads many citizens into a Catch 22 situation as they cannot

obtain a personnummer without a job

272

The cause of the problem is twofold:

1. Pursuant to the Swedish Population Register Law

273

, only those who can show

they will be resident in Sweden for over a year can obtain a personnummer. Thus,

jobseekers, students enrolled on courses lasting no more than one academic year

(for example Erasmus+ participants), workers with a fixed-term contract of less

than one year, homemakers, persons in pre-retirement as well as pensioners, may

be refused the personnummer on this basis. Even Swedish nationals who decide

to exercise their free movement rights and reside in another EU country for part of

the year can find themselves deregistered and their personnummers cancelled

274

2. The Swedish tax authority (“Skatteverket”), which is responsible for issuing the

personnummer, checks that the EU citizen and their family members satisfy the

residence conditions in Article 7(1) of Directive 2004/38 before issuing the num-

ber

275

. When it comes to citizens who do not work and who must provide evidence

of “comprehensive sickness insurance”, the only way, in practice, of satisfying this

requirement is by providing an S1 Form from their home Member State

276

. The

EHIC is never accepted and the conditions set by the Skatteverket in order for pri-

vate health insurance to be considered sufficiently “comprehensive” are such that

no private health insurance product can fulfil them. Many citizens have reported

trying to provide evidence of private health insurance only to have it rejected as

insufficient

277

A temporary number may be issued to those who can show they will reside in Sweden

for at least six months. This, however, is little consolation as, besides the fact that it

can only be requested by a public authority, it is a number in a format different to the

personnummer. Thus, it is not always accepted and computer systems do not always

recognise it.

While a population registry is a legitimate way of keeping track of a country’s residents,

and many countries do have one, it should not become a disproportionate obstacle

to EU citizens’ free movement rights, nor should it lead to discrimination against EU

citizens. The Swedish measures are, however, both:

272

For example, a UK jobseeker was told by employers that they would not hire him unless he had a person-

nummer and the Skatteverket refused to issue him with one unless he had a job.

273

Swedish Population Register Law 1991 (Folkbokföringslag (1991: 481), §3 provides: “After moving to Swe-

den, a person is expected to register with the official population register (folkbokföras). A person is considered

a resident in Sweden when they are likely to be routinely spending their leisure time (either nightly/daily) in the

country for at least one year. …”

274

A Swedish/German couple were living, working and paying taxes in Sweden as musicians but are now resi-

dent part of the time in Germany. The Swedish authorities threatened to deregister them from the population

local authorities and would not be able to invoice without a personnummer.

275

As there is no longer an obligation for EU citizens to register with the immigration authorities and obtain a

residence document in Sweden, the immigration authorities no longer examine whether EU citizens satisfy the

residence conditions of Directive 2004/38.

276

See the Skatteverket’s webpage outlining the requirement for self-sufcient persons: https://www.skattever-

ket.se/servicelankar/otherlanguages/inenglish/individualsandemployees/movingtosweden/citizenofeueea-

country/youareselfsufficient/youaremovingbyyourself.4.3810a01c150939e893f41fe.html – the same applies to

students.

277

In 2017 (2 enquiries); In 2016 (4 enquiries); In 2015 (2 enquiries).

Freedom of Movement in the EU: A Look Behind the Curtain

 Disproportionate –

 the Skatteverket’s health insurance requirements go beyond what is necessary

to ensure that an EU citizen holds comprehensive sickness insurance and does

not become an unreasonable burden on social assistance – an EHIC should

be sufficient in the case of temporary residents such as students, and private

insurance policies should be acceptable within reason.

 Moreover, the above provision of the Swedish Population Register Law – which

outright excludes temporary residents from the population registry – defies log-

ic. If the legitimate objective of a population registry is to keep a record of the

country’s residents, why exclude a whole section of society from it, making life

unnecessarily difficult for them?

and

 Discriminatory – it is only EU nationals who have to provide evidence of health in-

surance or a long-term work contract to be able to obtain a personnummer, Swed-

ish nationals do not have to jump through such hoops.

To add insult to injury, and in outright violation of Article 25 of Directive 2004/38

278

, the Skat-

teverket informs EU citizens that if they do not “have the right of residence“ under EU law –

as interpreted by them and affected by the Population Register Law – they can obtain a per-

sonnummer if they can provide a residence permit, of at least one year’s duration, obtained

on the basis of Swedish national immigration rules. Thus, many EU citizens, who should be

able to benet from the right to residence pursuant to Directive 2004/38, are told they do

not qualify for it and must obtain a residence permit on the same terms as non-EU nationals.

In the period between January 2015 and June 2017, YEA received a total of 165 en-

quiries from citizens affected by these measures

279

3.3.2. The residence cards problem in France

There is no requirement for EU nationals to register in France. Nonetheless, French leg-

islation goes beyond Directive 2004/38 and provides for the possibility for EU nationals

to apply for a residence document at their local prefecture, even before they complete

a five year residence period and obtain the right to permanent residence in France

280

However, many enquiries received by YEA over the last years attest to the fact that

French prefectures refuse to issue a residence document to EU nationals, whether be-

fore

281

or after

282

they have resided in France for five years, on the grounds that EU na-

278

Which states that the completion of an administrative formality cannot be subject to the possession of resi-

dence documentation.

279

122 enquiries in relation to the requirement to provide the S1 Form (see section 4.1 below), 16 enquiries

where the personnummer was a prerequisite for language classes (see footnote 317 above) and 27 enquir-

ies that revealed various other difculties that EU nationals faced as a result of the above Swedish measures.

Further evidence of this problem has come to light in an investigation carried out by the swedish news source,

The Local Sweden (https://www.thelocal.se/tag/the+local+investigates+swedish+id).

280

Articles R121-10 – R121-12 Code de l’entrée et du séjour des étrangers et du droit d’asile. See also the

webpage of the French administration (https://www.service-public.fr/particuliers/vosdroits/F16003).

281

France: A German pensioner was denied a registration certicate in France on the grounds that EU citizens

do not need one. His German insurer would not issue an S1 Form without it; France: A German resident in

France was refused a residence document by the Paris prefecture on the grounds that such documents are

no longer provided to EU nationals prior to 5 years of residence. The citizen was even told to make a written

declaration saying that she was not requiring one.

282

France: A Spanish citizen was denied a permanent residence card on the ground that EU citizens do not

need one; France: A Dutch national resident in France for 35 years could not have her permanent residence

card renewed on the ground that she no longer needed one. The Family Benets Fund (CAF) required her to

provide one in order to receive a disability benet; The same issue was reported in a further 3 enquiries.

3. Obstacles to Residence

tionals are not required to have one in France. As explained in section 3.2.1.6 above,

this has particularly affected UK nationals resident in France, but other EU nationals

have also been unable to obtain residence cards. The reason for this is not clear.

As there is no registration requirement in France, prefectures do not issue any other

document attesting to the fact that the EU citizen resides in France lawfully. The in-

ability of citizens to obtain a residence document when they request one results, in es-

sence, in the reversal of the burden of proof when they are faced with a situation where

they are required to prove their lawful residence.

EU citizens report facing many difficulties because they cannot provide a residence

document or any official document attesting that they reside in France. In particular:

a. The Family Benefits Fund, “Caisses d’Allocations Familiales (CAF)”, requires EU

citizens to present a residence card as evidence of lawful stay in France in order

to continue receiving family or disability benefits. The Fund actually ends the pay-

ment of benefits if the EU national cannot provide a residence document, even in

the case of nationals with the right to permanent residence. This is a serious issue

in France and the subject of at least 25 YEA enquiries between January 2015 and

June 2017

283

b. In order to continue receiving the guaranteed minimum income (“Revenu de Soli-

darité Active” (RSA)) a Portuguese citizen who arrived in France in the 1960s had

to provide a residence card, which he no longer had.

c. In order to be eligible for a scholarship, a Spanish student who was born and had

always resided in France, was required to provide a residence document,

d. The French unemployment services (“Pôle Emploi”) refused to register a Romanian

national who had been working in France before becoming unemployed. He was

required to submit a residence card.

e. A Spanish worker was asked to present a residence card in order to benefit from a

special social housing scheme for workers.

f. A bus company that runs training for bus drivers required a residence document

from a Spanish citizen so he could take part in the training and obtain the relevant

certificate he needed to get a job.

g. A German national was unable to register her car in France because she could not

provide any evidence of residence in France (all house bills were in the name of her

de facto partner).

3.3.3. Spain

3.3.3.1. The problem of the NIE

Many EU nationals who wish to work in Spain are caught in the following Catch 22

situation. They apply for a registration certificate and a foreigner’s identification number

(Numero de Identificacion de Extranjero “NIE”). The NIE is required by employers in

order to hire people, it is necessary to set up as self-employed and register with social

security and access services such as opening a bank account. However, if the citizen

applies as a jobseeker, self-employed or a worker, the immigration authorities require

evidence that the EU national is already working in order to issue them with the regis-

tration certificate and, subsequently the NIE. It seems that these EU nationals are not

being offered the alternative to register as self-sufficient, when they generally are. They

283

In 2017 (7 enquiries); In 2016 (8 enquiries); In 2015 (11 enquiries).

Freedom of Movement in the EU: A Look Behind the Curtain

are told that they should be able to work without the NIE, when in practice that is not

the case as employers refuse to hire them if they do not have one

284

3.3.3.2. The problem of the driver’s licence

A registration certificate is required in order to obtain a Spanish driver’s licence or to

obtain a replacement one. Citizens can end up in a Catch 22 situation when an em-

ployer requires a driver’s licence in order to hire a worker, the worker needs to apply

for one but the immigration authorities will not issue a registration certificate without

proof the citizen is actually working. The citizen is thus not able to apply for the driver’s

licence and not able to work.

3.3.3.3. The problem of the disability certicate

Spanish social security authorities appear not to be issuing disability certificates to

non-registered residents. An Italian citizen who has a disability status in Italy moved to

Spain. He was required to provide evidence of his disability status by the Spanish social

security authorities in order to obtain rebates from his employer. However, he was not

able to obtain it without a registration certificate.

3.3.4. The problem of the CPR in Denmark

A similar problem to that faced by EU nationals in Spain who cannot obtain the NIE is being

faced by non-EU family members who cannot obtain a personal number (CPR) in Denmark.

In breach of Article 25 of Directive 2004/38, Danish registration rules make it compul-

sory for non-EU family members of EU citizens to hold a residence card in order to

obtain a CPR

285

. Non-EU family members who do not hold a personal number cannot

access any public services, such as register in the civil registry as residing at a particu-

lar address and register their address officially at the postal service. Employers hesitate

to hire someone without a CPR as they are not convinced that the citizen is legally

resident if they do not have one.

3.3.5. The requirement to prove residence

in another Member State in order to obtain the S1 Form

from the competent Member State

Citizens who require the S1 Form as evidence of “comprehensive sickness insurance”

in order to be able to register in the host Member State often arrive at a dead end when

284

For example: A UK national wanted to set up as self-employed but could not do that without a NIE; A French

national wanted to work in France – he had a professional qualication – but was not able to sign up to lists

for interim work without a NIE – the national authority refused to issue him with one unless he had a work con-

tract. The citizen was self sufcient as he was supported by his parents; A Spanish employer required a NIE to

hire an Italian job seeker – he could not get a NIE if he did not have a work contract for at least three months

and a salary of 600€. The immigration authorities insisted that he should be able to work with his ID but the

employer refused to hire him; A self-employed UK national could not obtain a registration certicate without

providing evidence of invoices – she could not start working unless she had a NIE – she could not get the N E

without a registration certicate. She faced a long delay to get a new appointment. The civil servant was rude

and accused her of fraud for suggesting she could register as a worker because she had an actual job offer

that she was considering. See also EP’s Comparative Analysis on Obstacles to the right of free movement and

residence (p. 64).

285

Bekendtgørelse af lov om Det Centrale Personregister (https://www.retsinformation.dk/Forms/R0710.

aspx?id=191719).

3. Obstacles to Residence

their home country refuses to issue it to them unless they provide a registration certifi-

cate from the host Member State as evidence that they actually reside there.

This is a problem most often faced by citizens trying to obtain a personal number in

Sweden, but has also been reported by those trying to register in Portugal, France,

Greece and Austria. The countries that have denied their own nationals the S1 Form

for this reason are: Romania

286

, Hungary

287

, Spain

288

, the Netherlands

289

, Italy

290

Bulgaria

291

, Croatia

292

, Lithuania

293

, Portugal

294

, Poland

295

, Slovakia

296

, Germany

297

and the UK

298

3.3.6. Catch 22 situations

Further situations were reported where a residence

document was a prerequisite to completing adminis-

trative formalities, which has led to citizens having to

go round in circles. In particular:

 In Portugal, a residence certificate is necessary in

order to be issued with a tax identification number. A

UK citizen who was refused this tax number by the tax

authorities as he did not have a registration certificate,

could not execute a tenancy agreement as the real

estate agencies requested a Portuguese tax number

in order to do it. But it was impossible to obtain a reg-

istration certificate without evidence of a Portuguese

address.

 In Italy, a blind, 89 year old, dependant mother of

a German national was required to provide evidence

of pension payments to an Italian bank account. She

needed a fiscal code card (“codice fiscale”) to open a

bank account. No fiscal code card could be obtained

without a residence document.

 In Poland, an Italian citizen wanting to establish

himself as self-employed, was not granted the au-

thorisation to do so because he was not resident in

Poland. He was not allowed to register as a resident

because he did not have a job. 

286

(6 enquiries)

287

(5 enquiries)

288

(3 enquiries)

289

(3 enquiries)

290

(2 enquiries)

291

(2 enquiries)

292

(1 enquiry)

293

(2 enquiries)

294

(2 enquiries)

295

(1 enquiry)

296

(2 enquiries)

297

(1 enquiry)

298

(1 enquiry)

Freedom of Movement in the EU: A Look Behind the Curtain

 A UK national writes:

“I am currently living in Finland – having

been here for less than three months.

I am normally a resident of the UK –

which is where I was born.

I would like to continue my stay in Fin-

land, and therefore I have been looking

to start my own business here. How-

ever, I have come across a problem:

1. In order to start a business, I need

to have a Finnish bank account – to log

on to the page with which I register as

a sole trader.

2. In order to get a bank account, I

need to “register as an EU citizen”

which gives me an ID number, which I

can then open a bank

HOWEVER,

3. In order to register as an EU citizen, I

need to be able to prove that I am self-

employed – which of course I am not

able to do, for the above reasons...!

Please help me with this!”

3.3.7. Other diculties

Even if one does not end up going round in circles, the requirement to show a resi-

dence document still hinders citizens from completing administrative formalities, as

shown by the following examples:

 In Cyprus, an EU couple resident there for 10 years was required to show a resi-

dence document for their 5-year-old disabled child in order to be considered for

social benefits. The immigration authorities required proof of a €1,200 monthly

income in order to issue a residence permit to the child even if the parents had

acquired the right to permanent residence.

 In Belgium, a jobseeker in the process of having his professional qualifications

recognised was required to produce a residence permit.

 In Austria, a Croatian citizen who applied for the family allowance was informed

that it would only be paid to him if he provided the registration certificates of his

wife and children. The authorities informed him that registration certificates would

only be issued if he provided at least four months of pay slips. As a result, the pay-

ment of the family allowance would be delayed. The citizen had evidence that the

children were enrolled to start school in Austria and were registered as his depend-

ants for social security purposes.

 In Slovakia, a returning Slovak national, who had exercised his free movement

rights by residing in Ireland, was required to provide his Irish registration certificate

as evidence of his residence in Ireland, in order for his Russian wife to obtain a

residence card on the basis of EU law. The citizen had not applied for one when he

resided in Ireland.

 In Bulgaria, a five year residence card was required to obtain a driver’s licence,

a Belgian worker whose registration certificate was wrongly issued with limited

validity (due to a probation period in his work contract), could not obtain a driver’s

licence.

3.4. What happened to equal treatment?

EU nationals and their family members who are exercising their free movement rights

by residing in another Member State are to “enjoy equal treatment with nationals of that

Member State within the scope of the Treaty”

299

. Direct discrimination on the grounds

of nationality is prohibited

300

and any indirect discrimination must be objectively justified

and proportionate.

Nonetheless, besides the discrimination EU citizens and their family members are faced

with when they cannot obtain a national identification number or when they must pre-

sent a residence document in order to be able to access public and private services or

even to be able to work, citizens report many other instances where they are not being

treated equally with the nationals of their host Member State.

299

Article 24 of Directive 2004/38.

300

Article 18(1) TFEU.

3. Obstacles to Residence

Most reported cases related to France and the inability of EU nationals resident there

to obtain healthcare cover

301

, social security benefits

302

or welfare benefits

303

on the

same terms as French nationals. Citizens, however, also reported having been discrimi-

nated against in:

 Finland, where an EU citizen’s wife was denied a living allowance and housing

benefit on the grounds that her EU spouse, who was self employed in Finland, had

to be resident in Finland for five years before they could apply for such benefits;

 Spain, where a French national claimed he was denied hospital care due to him not

being Spanish, even though he was affiliated with Spanish social security;

 Ireland, where a UK national was excluded from a scheme to assist the elderly

insulate their homes as she was not in receipt of the winter fuel allowance paid by

the Irish authorities. She was, however, in receipt of the winter fuel allowance paid

by the UK authorities;

 Romania, where the Romanian authorities refused to provide non-Romanian na-

tionals with a Romanian national insurance card even though they lived and worked

in Romania and paid all required taxes and insurances; and where a student from

Italy, who tried to take advantage of the student fare when purchasing a train ticket

in Romania, was told that “the reduction applies only to Romanian students”;

 Italy, where a Croatian national was denied social assistance despite being entitled

to it and faced racist, threatening behaviour from a social assistant, who used false

documents to remove the citizen from the town hall register;

 Croatia, where a Croatian student, studying in Austria, was not allowed by the stu-

dent services to work as a student in Croatia because she was not studying there;

 Sweden, where a British national, who had previously worked there and was law-

fully residing in Sweden, complained of discriminatory treatment by the Swedish

employment agency which informed him that his application has been held back in

order to provide others a chance of work;

 Cyprus, where a Lithuanian single mother, legally working and residing in Cyprus

for five years, complained about facing discrimination and great delays in having

her application for child and single parent benefit processed;

 Austria, where the Austrian authorities refused to pay care allowance to dual Aus-

trian/Croatian nationals who care for their elderly parents in Austria, just because

the father received a small Bosnian pension (they were told that the Bosnian au-

thorities should be competent); and where a UK national, who moved to Austria

301

A Romanian citizen working in France for three months was asked to provide a social security number in or-

der to register for healthcare cover. This number was refused to him on the basis of his nationality; An American

spouse of a Belgian citizen working in France was refused healthcare cover as her husband’s family member

and was told she had to be covered in her own name, which meant having to rst obtain a residence card –

which would take some time and for which, the citizen was informed, proof of health insurance was required.

302

A Romanian citizen employed in France, with an indenite employment contract, could not benet from a

tax deduction in respect of his daughter who was living with his wife in Romania – he was considered as having

non-marital single status.

303

A discriminatory delay of six months was imposed by the local social assistance services for the payment of

the top-up to work-related income (“Revenu de solidarité active” (RSA)) to a Dutch national, who had acquired

the right to permanent residence in France. One of the reasons invoked for the delayed payments was the

fact that she was Dutch; A UK national, who was a part-time worker in France was also denied the RSA on

the ground that his part-time employment did not sufce to regard him as a migrant worker entitled to equal

treatment as a resident in France; A French student housing organisation “Centre régional des oeuvres univer-

sitaires et scolaires” (CROUS) refused to help an EU student with nding accommodation, based on the fact

that the citizen was neither French nor had been resident in France for at least two years.

Freedom of Movement in the EU: A Look Behind the Curtain

with her Turkish husband, was told she had to be

working full time in order for her husband to be al-

lowed to work. Once she presented evidence of full

time employment, she was told that she needed to

be working for at least 3 months before her hus-

band had the right to work;

 Portugal, where EU nationals who change their

address are obliged to obtain a new registration

certificate and pay a 15 EUR fee, while Portuguese

nationals in the same situation are charged only 3

EUR and also have the option of making the change

online for free; and

 Lithuania, where the online e-governance gateway

for access to the majority of public services is avail-

able only to Lithuanians as only they are able to

identify themselves due to the use of simplified reg-

istration procedures and documents issued solely

for use by Lithuanian citizens. 

4. The Need for Clarication

It is understandable that there was never an intention to fully harmonise all aspects

of free movement and that precisely for this reason the legislative provision adopted

on the basis of Article 21(2) “with a view to facilitating the exercise of [free movement]

rights” is a Directive, rather that a directly applicable Regulation. It is, therefore, also,

understandable that some concepts in Directive 2004/38 are intentionally left vague in

order to leave a margin for interpretation that can be used by Member States to better

reflect their national identities.

That said, however, as the Court made clear, “the margin for manoeuvre which the

Member States are recognised as having must not be used by them in a manner which

would compromise attainment of the objective of Directive 2004/38/EC, which is, inter

alia, to facilitate and strengthen the exercise of Union citizens’ primary right to move

and reside freely within the territory of the Member States, and the practical effective-

ness of that directive.”

304

Moreover, not all “grey areas” are intentional and providing some clarity, in the form a

new Communication, would not necessarily equate to hampering the Member State’s

margin of discretion.

A new Communication on clarifying certain “grey areas” in Directive 2004/38 is needed

for the following reasons:

 Evidence suggests that Member States take advantage of loopholes in the Direc-

tive to arrive at results that are contrary to its very purpose and that can be at odds

with EU citizens’ fundamental rights, in particular the right to healthcare and the

right to a family life (enshrined in Article 7 and 35 of the Charter on Fundamental

Rights of the EU);

304

Case C-184/99 Grzelczyk par. 70 et seq.

4. The Need for Clarification

 The non-EU spouse of a Romanian

national working in Lithuania writes:

“When attempting to use the e-gov-

ernment service portal for Lithuania*. I

was informed that it was only available

to Lithuanian citizens despite having

registered my residence card with one

of their banking partners.

When I inquired directly (epaslaugos@

ivpk.lt) I was told that “You can`t use

the electronic services. Please order

the service directly.” [...]

The e-government services portal is

the main way Lithuanians interact with

the government. The non-electronic

means are poorly documented and

hard to use. Is this a case of discrimi-

nation due to nationality?”

* (https://www.epaslaugos.lt/portal/login)

 Member States sometimes ignore the guidance that has already been provided in

the Commission’s 2009 Communication, thus further emphasis must be placed on

those issues; and

 There have been many CJEU judgments that affect citizens’ free movement rights

since 2009 and, if they are not to be codified in new legislation, the principles

contained therein should at the very least be included in a new Communication on

Directive 2004/38.

Mobile EU citizens report facing many difficulties when trying to exercise their EU right

to residence as a result of some of the “grey areas” in the Directive. Their lives would

be made easier if some clarity was provided. The enquiries submitted to YEA between

January 2015 and June 2017 suggest that clarity would be most welcome on the fol-

lowing 15 issues:

4.1. Satisfying the “comprehensive

sickness insurance” condition

4.1.1. The problem

Economically inactive persons, who reside in a Member State with a residence based

healthcare scheme

305

and where no possibility exists to pay healthcare contributions,

may end up without any healthcare coverage and may also be unable to obtain a per-

manent residence document. This has been a particular problem in the UK and Swe-

den, and has also been reported in France, Spain and Italy.

4.1.2. The root cause

This issue arises as a result of the parallel existence of two differing concepts of “resi-

dence” in EU law, namely:

 “Lawful” residence under Directive 2004/38; and

 Factual or “habitual” residence used to determine the competent Member State for

social security coordination purposes under Regulation 883/2004306, without any

clarification or indication on which takes precedence when overlap occurs.

In particular, when an economically inactive person moves their residence to another

Member State, in order to lawfully reside there pursuant to Directive 2004/38 they

must have sufficient resources and comprehensive sickness insurance

307

. There is no

definition in the Directive itself as to what constitutes “comprehensive sickness insur-

ance”. Some clarification is provided in the Commission’s 2009 Communication

308

, but

305

Where healthcare is nanced entirely or, to a large extent, by taxes, as opposed to social security contribu-

tions.

306

This issue is also analysed in the 2016 Fresco Analytical Report on Access to healthcare in cross border

situations (http://ec.europa.eu/social/BlobServlet?docId=17130&langId=en) (see sections 2.1 – 2.4).

307

Article 7(1)(b).

308

(COM(2009) 313) (http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52009DC0313). Here

sickness insurance is dened as “Any insurance cover, private or public, contracted in the host Member State

or elsewhere, is acceptable in principle, as long as it provides comprehensive coverage and does not create

a burden on the public finances of the host Member State. In protecting their public finances while assessing

the comprehensiveness of sickness insurance cover, Member States must act in compliance with the limits

imposed by Community law and in accordance with the principle of proportionality”. There is, therefore, no

explanation of what would be considered as “comprehensive” coverage.

Freedom of Movement in the EU: A Look Behind the Curtain

Member States are largely given discretion on how to interpret this – and sometimes,

as the case of Sweden demonstrates, choose to blatantly ignore it

309

As long as the economically inactive person can provide evidence that their home

Member State will cover the cost of their healthcare – for example, in the case of most

pensioners who can provide an S1 Form

310

, or students who can present the EHIC –

there is generally no issue

311

The problem arises when the citizens cannot provide evidence of coverage by their

home Member State. This can be the case for self-sufficient persons in pre-retirement,

students who transferred their residence to the host Member State and cease to be

covered by their home Member State and anyone else who is required to, but for some

reason cannot, present evidence of being covered by their home Member State. Those

who previously worked but are now involuntarily unemployed and no longer in receipt

of unemployment benefits will also be affected, as will economically inactive family

members with retained rights of residence and workers who do not satisfy the nation-

ally-imposed definitions of work, such as working periods and minimum earnings

312

Pursuant to Regulation 883/2004 these persons are subject to the legislation of their

country of residence, meaning the country where they habitually reside and where their

centre of interests is located

313

. Pursuant to Article 4 of Regulation 883/2004, they are

entitled to equal treatment with nationals of their host Member State, also as regards

healthcare coverage.

In Member States that have a contributions based health scheme, this does not be-

come an issue since, generally, there is a possibility, or even an obligation, to contribute

to social security in order to be entitled to healthcare. Thus, economically inactive mo-

bile EU citizens are able to have access to healthcare on the same terms as economi-

cally inactive nationals

314

However, in Member States with a residence based national health system (NHS)

315

, or

those with a hybrid system

316

, where entitlement to healthcare is based on legal resi-

dence in the country, one can quickly arrive at a “chicken and egg” situation.

309

See section 3.3.1 above.

310

And those receiving other long term benets such as, for example, invalidity pensions from their home

Member State.

311

Although there is still evidence this is not the case. For example, in Sweden only S1 Form is accepted as evi-

dence of comprehensive sickness insurance (http://www.skatteverket.se/servicelankar/otherlanguages/ineng-

lish/individualsandemployees/movingtosweden/citizenofeueeacountry/youarestudying/youaremovingbyyourse

lf.4.3810a01c150939e893f4157.html) (the private insurance cover described as an alternative is not offered by

any insurance company in Sweden); Cases where a student’s EHIC was not accepted were reported in Italy;

Italy also refuses to issue S1 Form to pensioners who do not reside or pay taxes in Italy; Spain refuses to issue

the EHIC (which normally has a 2 year validity date) to those unemployed or with temporary work contracts, as

well as to students over the age of 26 whose parents are unemployed or interrim workers. If such citizens move

abroad, they are often issued with a Provisional Replacement Certicate, valid for up to three months only (7

enquiries were receive in relation to this).

312

See section 4.1 of the 2015 Fresco Comparative Report on the concept of worker (http://ec.europa.eu/

social/BlobServlet?docId=15476&langId=en).

313

Article 11(3)(e) of Regulation 883/2004, Article 11 of Regulation 987/2009.

314

See 2016 Fresco Analytical Report (section 2.3.3.2).

315

Such as the UK and Sweden, where healthcare is nanced exclusively from taxes.

316

Such as France where healthcare is nanced to a large extent from taxes and partly from social security, or

Spain where healthcare and social security are entirely separate with the former nanced entirely from taxes

and the latter from contributions.

4. The Need for Clarification

4.1.3. The “chicken and egg” situation

Whereas, on the basis of Article 4 of Regulation 883/2004, inactive mobile EU citizens

should be entitled to access national health system on the same basis as inactive

nationals, i.e. without making any specific healthcare contributions, it is sufficient for

a Member State to interpret the “comprehensive sickness insurance” requirement of

Directive 2004/38 restrictively for these citizens to be unable to have access to public

healthcare.

A Member State can decide that access to their NHS cannot be considered as evi-

dence of “comprehensive sickness insurance” and that private insurance is required in

order to be “lawfully” resident. This is the case in the UK

317

, Sweden

318

and France

319

The problem, however, is that in countries with an NHS, private insurance is not some-

thing that is widely available or generally accessible. It will be costly and the cover

provided will not necessarily be as extensive as under the NHS. It may even be impos-

sible to have certain treatments done privately (either because their cost is prohibitive

so private insurance will not cover them or because private insurance will not cover

pre-existing conditions) and the geographical coverage of private clinics may be lim-

ited. This can result in a situation where no private insurance policy available on the

market will satisfy the “comprehensive sickness insurance” criterion, as is the case in

Sweden.

As a result, economically inactive mobile EU citizens may be left either with no pos-

sibility to access the national health system

320

or, even if they can get access to

healthcare

321

, they will not be able to obtain a residence document because they have

not satisfied the “comprehensive sickness insurance” condition in Directive 2004/38.

Although, a residence document should not be essential when living in another Mem-

ber State, as has been explained in section 3.3 above, life without one can be very

difficult indeed.

4.1.4. The evidence

YEA has received numerous enquiries from citizens which demonstrate that, despite

any action previously taken by the Commission, this issue remains a problem for mobile

EU citizens to this day. In particular, only in the period between January 2015 and June

2017, there were at least:

317

The CSI requirement has been a major problem for self-sufcient EU nationals applying for permanent resi-

dence in the UK. YEA has received at least 39 enquiries on this issue since 2015 with the number increasing

each year. Many citizens had been relying on the NHS during their initial ve years of residence but who were

informed of the CSI requirement only upon applying for permanent residence. Those who could not provide

evidence (by way of form S1) that their home Member State was covering their NHS healthcare costs and who

did not have private healthcare coverage during their initial ve years of residence, were denied permanent

residence on the grounds that they did not have CSI. This came as a surprise to many as EU nationals are not

required to obtain a registration certicate in the UK. No mention of the CSI is made on the relevant UK govern-

ment website which outlines the formalities for EU citizens who wish to reside in the UK (https://www.gov.uk/

eea-registration-certificate). The CSI requirement is only mentioned in the Home Ofce guides to the application

forms, thus only those EU nationals who voluntarily applied for a registration certicate after arrival would have

been made aware of the CSI requirement prior to the end of their ve year residence period.

See also: http://europa.eu/rapid/press-release_IP-12-417_EN.htm

318

See section 3.3.1 above.

319

And has been the subject of repeated complaints to the European Commission. See, for example, http://

www.europarl.europa.eu/meetdocs/2009_2014/documents/peti/cm/929/929916/929916en.pdf

320

As is the case in France.

321

As in the UK where the state does not limit access to the NHS.

Freedom of Movement in the EU: A Look Behind the Curtain

 122 enquiries in relation to Sweden

322

;

 39 enquiries in relation to the UK

323

;

 9 enquiries in relation to France

324

;

 6 enquiries in relation to Italy;

 4 enquiries in relation to Spain.

4.1.5. The current state of play

Currently, neither Directive 2004/38 nor Regulation 883/2004 make reference to each

other. It is, thus, not clear which “residence” concept takes precedence. Does one

have to be “lawfully resident” on the basis of Directive 2004/38 first, meaning that, at

least for the first five years the citizen burdens neither the national “social assistance

system”

325

nor the national health care system? Or can Article 4 of Regulation 883/2004

be relied upon so that access to the national health care system is considered as satis-

fying the “comprehensive sickness insurance” requirement from the moment that there

is a shift of “habitual” residence?

As the above evidence suggests, some Member States take the former view, while the

Commission takes the latter

326

. The CJEU has not been particularly helpful in providing

clarity. In the one case, C-308/14 Commission v UK, where the Court had the oppor-

tunity to do so, it largely dismissed this as a non-issue, stating that Article 11(3)(e) of

Regulation 883/2004 is merely a conflict rule determining the applicable social security

legislation, whereas the legal residence requirement is simply one of the conditions for

being entitled to a social benefit

327

– and Member States are free to determine what

those conditions are. The Court, therefore, applying the same reasoning as it did to

Special Non-Contributory Benefits (SNCBs) in Dano and Brey

328

, seems to suggest

that – at least as regards family benefits, which were the subject matter of that case

– the Directive comes first. One must first be lawfully resident, (i.e. either working or

having sufficient resources and sickness insurance) and only then can one claim family

benefits.

Applying this reasoning to healthcare, however, is problematic. This is especially so in

the case of economically inactive persons, since they must prove that they have “com-

prehensive sickness insurance” in order to have the right to reside in their host Member

State. If they cannot provide evidence of coverage by their home Member State – be-

cause, pursuant to Regulation 883/2004, that State is no longer the “competent state”

in their case – and if they cannot rely on Article 4 of the Regulation 883/2004 in order

to access the NHS in their host country, then what are they left with? Private health in-

surance seems like the only possibility – except, as the case of Sweden demonstrates,

that may not even be a realistic possibility. And if it is, it will not be without serious

limitations, as explained above.

322

19 enquiries in 2017; 56 enquiries in 2016 and 48 enquiries in 2015.

323

In 2017 (24 enquiries); In 2016 (9 enquiries); In 2015 (6 enquiries).

324

In 2017 (6 enquiries); In 2016 (1 enquiry); In 2015 (2 enquiries).

325

This is the wording used in Recital (16) and Article 14 of Directive 2004/38.

326

As evident from the stance the Commission has taken as regards complaints against France, Sweden and

the UK.

327

Child benet and Child tax credit in that case.

328

Cases C-140/12 Brey and C-333/13 Dano, concerned SNCBs (a top-up to a pension and a subsistence

benet to a jobseeker), expressly listed in Annex X of Regulation 883/2004, which are nanced exclusively by

national taxation. They thus have an element of “social assistance”, to which reference is made in Directive

2004/38. On the other hand, the judgment in Commission v UK marks the rst instance that the Court takes

this approach in relation of “pure” social security benets.

4. The Need for Clarification

Healthcare warrants a different treatment to SNCBs, or even to other social security

benefits. If one is denied a top-up to a low pension, or a jobseekers’ subsistence ben-

efit, or even a family benefit – while this would negatively affect their financial situation

– the denial of the benefit will not necessarily leave them without any resources and

would not necessarily lead to a denial of a right to residence. They could still reside in

the host country with whatever resources they have and without burdening the national

“social assistance” system (or, if the Court so wishes, the national “social security sys-

tem”). If, however, in Member States with a residence based NHS and where private

health insurance is not a viable alternative, an economically inactive citizen is unable to

rely on the NHS and/or is not given the opportunity to financially contribute to it, they

may find themselves in a situation where they cannot access healthcare at all, which

means they cannot satisfy the “comprehensive sickness insurance” criterion and can

thus be denied the right to residence.

The irony is that even self-sufficient persons, with more than enough resources to

reside in the host Member State without being a burden, may be denied the right to

residence because they are not able to satisfy the “comprehensive sickness insurance”

condition, when private health insurance is either unavailable to them or not consid-

ered as “comprehensive” enough. This is a result that is completely contrary to the very

purpose of the Directive.

Needless to say that measures or policies which lead to citizens not being able to ac-

cess healthcare are at odds with Article 35 of the Charter on Fundamental Rights of

the EU, which acknowledges the right to healthcare as a fundamental right. Moreover,

when economically inactive EU migrants are left with private health insurance as the

only possible way of accessing healthcare, while economically inactive nationals can

rely on the NHS, we are faced with a situation of outright direct discrimination on the

basis of nationality.

There is, to date, no Court judgment dealing with this precise issue. Given the direction

the Court has recently been taking

329

, it will not be surprising to see a further shift away

from its previous reasoning that Member States should exercise a “degree of financial

solidarity” and that “Union citizenship is destined to be the fundamental status of na-

tionals of the Member States, enabling those who find themselves in the same situation

to enjoy the same treatment in law irrespective of their nationality [...]”

330

The Court’s Commission v UK judgment has, in a way, paved the road for other Mem-

ber States with residence based national health schemes to go the way of the UK and

Sweden – and there are currently many

331

4.1.6. Time for action

It is, therefore, high time for the Commission to provide some much needed guidance

and clarification on this issue before more “damage” is done. While the latest Proposal

for an amendment to Regulation 883/2004

332

has gone some way towards this goal

329

Cases C-140/12 Brey, C-333/13 Dano, C-67/14 Alimanovic, C-299/14 Garcia Nieto and more recently in

C-308/14 Commission v UK.

330

C-184/99 Grzelczyk.

331

CY, DK, EL, FI, IE, IS, IT, LV, MT, PT, SE and UK all have residence based schemes, France and Spain have

hybrid systems and as explained above are both already applying a restrictive denition of “comprehensive

sickness insurance”.

332

COM(2016) 815 nal.

Freedom of Movement in the EU: A Look Behind the Curtain

and is a welcome development

333

, that Proposal only just entered the legislative pipe-

line and it is not yet clear when and – most importantly – in what shape it will come

out. Given the turn the discussions in the Council have taken, things do not look at all

promising

334

Guidance is needed now, in the form of a Communication on Directive 2004/38, en-

couraging Member States to respect EU citizens’ fundamental right to healthcare, as

enshrined in Article 35 of the EU Charter on Fundamental Rights, either:

1. by allowing economically inactive EU citizens to rely on their national health system

in order to satisfy the residence condition in Article 7(1) of Directive 2004/38; or, at

the very least,

2. by putting in place a system whereby economically inactive nationals can pay into

the national healthcare system in a proportionate manner.

Such a clarification will not tamper with the Member States’ margin of discretion. Mem-

ber States will still have full discretion on what type of healthcare system they have. The

Directive, for all its vague terms, did intend for self-sufficient economically inactive EU

citizens to still be able to move in the EU.

A clarification on this issue is, therefore, much needed so that self-sufficient, economi-

cally inactive EU citizens can take full advantage of their free movement rights in the

EU. This would send a clear message to the Member States that, despite the mounting

lack of “financial solidarity” among Member States in the current times, the Commis-

sion will stay true to its role as guardian of the Treaties and guardian of the rights that

EU citizens derive from them.

4.2. The right of non-EU family members to stay in

the host MS beyond the expiry of their entry visa term,

if the residence application process is still ongoing

A major stress for EU nationals and their family members is when they cannot complete

the application process for the residence card before the non-EU family member’s entry

visa expires. As explained above, this can be the case when appointments for registra-

tion are difcult to obtain

335

, or when the authorities doubt the authenticity of a couple’s

foreign marriage certicate and require further documents

336

, or generally when an ap-

plication is refused for whatever reason and the citizen is in the process of reapplying.

333

With Recitals 5(b) and 5(c) providing that:

“(5b) Member States should ensure that economically inactive EU mobile citizens are not prevented from satis-

fying the condition of having comprehensive sickness insurance cover in the host Member State, as laid down

in Directive 2004/38/EC. This may entail allowing such citizens to contribute in a proportionate manner to a

scheme for sickness coverage in the Member State in which they habitually reside.

(5c) Notwithstanding the limitations on the right to equal treatment for economically inactive persons, that arise

from the Directive 2004/38/EC or otherwise by virtue of Union law, nothing within this Regulation should restrict

the fundamental rights recognised in the Charter of Fundamental Rights of the European Union, notably the

right to human dignity (Article 1), the right to life (Article 2) and the right to healthcare (Article 35).”

334

See the Council’s Progress Report from 2 June 2017, page 6: “[...] the Presidency is proposing to delete

Recital 5b on comprehensive sickness insurance, to delete Recital 5c referring to the Charter of Fundamental

Rights [...]. The Working Party reached a broad agreement on this approach” (http://eur-lex.europa.eu/legal-

content/EN/TXT/PDF/?uri=CONSIL:ST_9524_2017_INIT&from=EN).

335

Section 3.2.1.1 above.

336

Section 3.2.1.4 above and Annex 1. For example, 199332, where the application for a family member’s

residence card in Denmark is taking a long time due to the authorities checking the authenticity of the couple’s

non-EU marriage certicate – but the authorities still require the wife to register before her visa runs out, which

is unlikely to be possible.

4. The Need for Clarification

Even though such citizens should have nothing to fear – the Court has made it clear in

Metock that prior lawful residence in a Member State cannot be made a precondition to

a right to residence and that it is irrelevant “when and where their marriage took place

and [...] how the national of a non-member country entered the host Member State”

337

– when citizens are faced with an expiring visa they often believe that they have to

return to the non-EU national’s home country and reapply for a new visa

338

. It does

not help when national authorities tell them to do just that, or even threaten them with

deportation for overstaying their visa term

339

. Moreover, citizens who need to briefly exit

the host Member State during the application process fear that they will not be allowed

back in if their visa term expires before their return while their residence application is

still pending

340

. Such citizens have been told to reapply for a visa before returning

341

and retained at border control upon their return if they did not have a new visa

342

Many EU citizens and their family members would be very grateful if there is clear guid-

ance outlining that they are not required to take the illogical step of leaving the country

to reapply for an entry visa simply because the residence card application process is

taking too long or that they should not have to reapply for a new visa if they briefly exit

the host Member State while their residence application is pending.

4.3. The concept of “sucient resources”

and their origin

Sufficient resources can come from anywhere. At least this is what the Court has held

and the Commission repeated in its 2009 Communication

343

. The evidence of sufficient

resources cannot be limited and resources from a third person, including a non-EU

national spouse, must be accepted

344

337

Case C-127/08 Metock, par. 80 and 99.

338

The American wife of a self-sufcient EU national was refused a residence card in Germany because the

EU national did not have a work contract – he was working mostly outside Germany and income from other

sources was not accepted as evidence. She wished to reapply after the EU national obtained a work contract

but a new appointment with the immigration authorities not possible before the expiry of her Schengen visa –

this was the cause of signicant stress to the couple.

339

The Moroccan husband of a self-employed/self-sufcient UK national had his application for a residence

card rejected three times in Spain. Each time the applicant inquired whether he could stay beyond his visa term

while reapplying and each time he was told this would not be a problem. Despite this he has had his passport

taken away when reapplying and was threatened with deportation for overstaying his visa term; The Bulgarian

authorities denied the right to stay to non-EU family members (wife and child) of a British worker: they were re-

quired to leave the territory because they entered Bulgaria without a visa; A non-EU spouse of a Greek national

who applied for an Article 10 residence card in Sweden was threatened with expulsion if his entry visa was not

handed in to the authorities within one week.

340

A German-Brazilian married couple who live in France wanted to know if the Brazilian citizen required a visa

to re-enter France after a short stay in Brazil or if his preliminary residence card would be sufcient.

341

A non-EU family member of Bulgarian national who applied for a residence card in Ireland needed to travel

with her spouse to Bulgaria for a short visit. As her temporary card would expire before her return she was told

she had to apply for a new entry visa to enter Ireland.

342

A German citizen and his non-EU spouse were retained upon their return to Spain because she did not hold

a Spanish residence card (the application was pending).

343

See section 2.3.1 of the 2009 Communication.

344

C-424/98 Commission v Italy, C-408/03 Commission v Belgium C-86/12 Alokpa and Moudoulou, C-200/02

Zhu and Chen, C-218/14 Singh where the Court repeated “that a Union citizen has sufficient resources for

himself and his family members not to become a burden on the social assistance system of the host Member

State during his period of residence even where those resources derive in part from those of his spouse who

is a third-country national” (par. 77).

Freedom of Movement in the EU: A Look Behind the Curtain

Despite this, enquiries from citizens received by YEA reveal that Member States are still

confused about, or ignorant of, this principle. The lack of clarity in this area also leads

to confusion among citizens about what their rights are

345

. This particularly affects EU

citizens who are not working but who wish to rely on the (current or potential) income

of their non-EU spouse in order to obtain residence documents in the host Member

State. These citizens end up in a Catch 22 situation when they need to rely on their

non-EU spouse’s employment in order to prove sufficient resources, but the non-EU

spouse cannot work when the employer requires a residence card as a condition to

employment. The authorities, in turn, will not issue this residence card unless the EU

spouse proves sufficient resources or provides evidence that they themselves are em-

ployed. This issue has arisen in France, the UK, Sweden

346

, Ireland

347

, Germany

348

and Spain

349

The Member States should be informed of the latest case law of the Court to eliminate

any confusion on the matter and to make clear the non-EU spouse’s resources or evi-

dence of current or potential employment can and should be taken into account when

assessing the EU national’s right to residence and processing the respective applica-

tions.

4.4. Permanent residence cards

and the visa exemption

Article 5(2) of Directive 2004/38 specifies that the visa exemption applies to those who

hold “the residence card referred to in Article 10”. However, the same facility is not

expressly provided for holders of permanent residence cards issued pursuant to Article

20 of the Directive. The Commission’s 2009 Communication is silent on this issue. The

Schengen Visa Handbook does, however, specify that “the same visa exemption must

be extended also to those third country family members who hold a valid permanent

residence card issued under Article 20 of the Directive”

350

While most Member States will accept presentation of a permanent residence card in

lieu of a visa, evidence suggests that this is not always the case. This mainly concerns

family members with permanent residence cards issued in the UK who cannot rely on

345

A Bulgarian national wished to move to Belgium with her Turkish husband, who had a job offer there. She

did not intend to work as she had a baby. Neither she nor the husband’s future employer could nd any infor-

mation conrming that the husband could start working in Belgium immediately without needing a work permit.

346

Sweden: A permanent residence card was refused to a student, her non-EU husband’s income was not

taken into account, the authorities considered her claiming family benets as an indication that she had no

sufcient resources; Bulgarian job seekers were refused residence in Sweden although the inquirer’s brother

provided a guarantee to support the whole family.

347

An EU national and their non-EU spouse who were self-sufcient in Ireland were issued with resident docu-

ments valid only for six months because the EU wife could not provide evidence that she was employed in

Ireland; An Indonesian wife of a Bulgarian job seeker in Ireland, who had found a job in Ireland rst and was

working and paying taxes, was refused a residence card on the ground that the EU husband was not economi-

cally active. The husband was a registered job seeker and enrolled in on the Insight Training Course.

348

A British citizen lived in Germany as an artist on a very low income. His non-EU wife was earning the bulk of

the family income. The German authorities questioned his right of free movement because he was not earning

enough; A self-sufcient Bosnian husband of an Italian student in Hamburg was denied the right to live and

work in Germany on the grounds that the EU spouse is not employed and does not have a steady monthly

income.

349

A German national who was unemployed and wishing to reside in Spain was told by a lawyer that in Spain

his non-EU wife’s resources would not be eligible to count for the determination of his resources and that he

had to provide evidence of his own resources.

350

Part III(A)(2).

4. The Need for Clarification

their residence card to benefit from the visa exemption under Schengen rules

351

. Citi-

zens in such situations report that, while they were able to rely on the visa exemption

provided for by Article 5(2) when they held an Article 10 residence card, they have been

unable to travel visa free since obtaining their permanent residence card

352

This policy is applied by both immigration authorities and airlines. Some citizens have

even been denied boarding. For example, a Polish national and her Moroccan hus-

band, who held an Article 20 residence card, were denied boarding on an Easyjet flight

from the UK to Poland on the grounds that the Moroccan spouse did not have a visa.

The Polish consulate later confirmed to them that the husband would now require a

visa, despite having previously been visa exempt when holding an Article 10 residence

card, on the grounds that he no longer had the status of family member but had a per-

manent residence card because he was resident in the UK for five years. Easyjet also

reiterated the visa requirement

353

This is a gap in Directive 2004/38, which some Member States have interpreted in a

way contrary to the purpose and spirit of the Directive. Surely the legislator did not in-

tend for family members with Article 20 permanent residence cards to see their rights

diminished when it comes to travelling with their EU spouse in the EU. Reiterating this

in a new Communication on Directive 2004/38 would be welcome to avoid such narrow

interpretations of citizens’ free movement rights.

4.5. Applying the Surinder Singh case law

The Commission, in its 2009 Communication, does explain that “EU citizens who re-

turn to their home Member State after having resided in another Member State and in

certain circumstances also those EU citizens who have exercised their rights to free

movement in another Member State without residing there (for example by providing

services in another Member State without residing there) benefit as well from the rules

on free movement of persons” and does refer to the relevant case which established

these principles

354

It appears, however, that some Member States do not apply these rules correctly,

whether intentionally or for want of understanding. The UK is the obvious example.

Currently, a large proportion of citizen enquiries relating to the UK come from UK na-

tionals who are returning to the UK with their non-EU family members after having

exercised their free movement rights in another Member State. Since 2015, YEA has

351

A non-EU family member could not rely on his UK permanent residence card to travel to Bulgaria; A non-EU

family member holding a permanent residence card issued by the UK (EEA4) reported that immigration ofcials

and airline staff in various Member States did not recognise his card.

352

For example: A Mongolian national holding a UK family member’s permanent residence card issued by the

UK, was required to obtain a visa to enter Spain with his Spanish partner and pay a visa fee, whereas he trav-

elled visa free when he had a 5 year residence card; A non-EU national sought to travel to Ireland with his UK

wife. However, he was advised by the Irish authorities that a visa was required as his permanent residence card

was not acceptable in the same way that a residence card issued under Article 10, Directive 2004/38/EC is.

353

Another enquiry, revealed the lack of awareness of Directive 2004/38 displayed by airline staff. The EU

spouse of a Polish citizen holding a permanent residence card issued by the UK authorities was denied board-

ing of a ight from the UK to Croatia on the basis that her residence card did not bear the words “family member

of an EU citizen”. The Croatian implementing rules (Article 166 of the Croatian Aliens Act 2011) only refer to the

visa exemption in respect of residence cards but not permanent residence cards.

354

Cases C-370/90 Singh, C-291/05 Eind and C-60/00 Carpenter.

Freedom of Movement in the EU: A Look Behind the Curtain

received at least 58 enquiries bringing this issue to light

355

. There is, however, evidence

that several other Member States

356

could also be reminded of the rules. Here is a good

example as to why: 

355

These citizens, seeking to rely on the Surinder Singh case law in order to bring their family members back

to the UK with them must show that they: (a) had transferred “the centre of their life” to their host Member

State; and (b) satisfy the conditions of residence in Article 7(1) of Directive 2004/38 upon their return to the

UK (Regulation 9 of the The Immigration (European Economic Area) Regulations 2006). This restrictive inter-

pretation of the Surinder Singh case law, imposes upon returning UK nationals requirements beyond those

of Directive 2004/38 (which is applied by analogy to returning own nationals) and is not compliant with the

CJEU’s judgment in Case C-456/12 O & B where the Court held that “Residence in the host Member State

pursuant to and in conformity with the conditions set out in Article 7(1) of that directive is, in principle, evidence

of settling there and therefore of the Union citizen’s genuine residence in the host Member State” (par. 53 of

the judgment). See also the letter sent by the European Commission to a citizen complaining about this issue

(http://2xsoic30m4ba2ervd35c9n41-wpengine.netdna-ssl.com/wp-content/uploads/2014/08/EU-Commis-

sion-letter-anon.pdf).Those unable to satisfy these conditions must then satisfy the stricter conditions of the

national UK immigration rules (which include nancial and language requirements). Thus they risk being denied

their EU free movement rights. Several such family members have had their applications for an EEA family

permit rejected or have been denied entry at the border.

356

A returning German national’s non-EU spouse was only granted him a 1 year residence card instead of a

5 year one on the basis of Surinder Singh rules; A returning Irish citizen, whose non-EU wife held a residence

card from Spain was told to present evidence of the fact that he had been working in Spain during their resi-

dence there and also evidence of their integration into Spanish life. These requirements do not reect those set

out by the Court of Justice of the EU in the O and B case; The Finnish authorities disregarded the Surinder

Singh rules in the case of a returning Finnish national and her husband who held a family member’s card from

Austria; The Austrian authorities insisted on applying national immigration rules to the residence application of

the Indian spouse of a returning Austrian national; Family members of EU citizens returning home after exercis-

ing their free movement were required to undergo cumbersome national immigration procedures in Germany

and Lithuania; A non-EU spouse of a Lithuanian citizen returning home after exercising free movement rights

was denied his rights under Surinder Singh and Directive 2004/38; The dependent Moroccan father of a Bel-

gian national returning to Belgium could not benet from the accelerated procedure when applying for a visa

at the Belgian consulate in Morocco. A fee was imposed and the delay was over four weeks; A French citizen

returning to France faced difculties in asserting rights under Directive 2004/38/EC for his non-EU partner.

4. The Need for Clarification

 “I am a German citizen, I have been married to a Colombian citizen for over 3 years

(August 3rd, 2012) and we have lived in the UK for the last 2 years. I exercised my treaty

rights in the UK under the Directive 2004/38/EC.

We decided to come back to Germany, my husband doesn’t speak German and he is still

working for the same company based in the UK, as he works from home.

Before we left the UK we contacted the EU and we got a call back informing us that the

German government is not supposed to ask my husband for the German Language test,

as we already exercised treaty rights in another EU country.

We were advise to proceed and request his residence card in Germany as we would be

covered by the Surinder Singh Act.

We arrived in Germany on February 27th / 2016, I already registered my husband in the

Sindelfingen Anmeldeamt and there was no problem, I was advised that I had to wait a

couple of days for his registration to go through and then I can call back to arrange an

appointment to get his residence card here in Germany.

I tried to call several times and 3 days later I finally got in touch with the Auslaenderbe-

hoerde and spoke to Mrs. [X] she advised that my husband can stay for only 3 months in

Germany, he has to present the German language test and he needs to get a job within

the next 3 months in Germany to be able to stay, otherwise he will need to leave; she was

very rude and didn’t allow me to talk at all, also got very personal by saying that I do not

Moreover, much water has passed under the bridge since the initial cases of Singh,

Eind and Carpenter. The Court has since made clear that:

 there is no need for the EU spouse to have been working in the host Member State in

order to take advantage of the Surinder Singh route when returning home with their

non-EU family member – as long as residence was genuine and the residence condi-

tions of Directive 2004/38 were satised, that is sufcient (Case C-456/12 O & B);

 Carpenter (which concerned the provision of services in another Member State

while residing in the home one) also applies to workers – their non-EU family mem-

bers must be granted a right to residence if the refusal to grant such a right would

discourage the worker from effectively exercising his rights under Article 45 TFEU

(C-457/12 S & G);

 these principles also apply as regards entry formalities and not just residence rights

– when an EU national who is resident in another Member State is travelling to their

home country with their non-EU spouse, and that spouse holds a family member’s

residence card on the basis of Directive 2004/38, they should be exempt from the

visa requirement as they would be when travelling to other Member States (Case

C-202/13 McCarthy, par. 41-42).

For all the above reasons, it is time to elaborate and update the guidance given to

Member States on how to apply the Surinder Singh rules to their own returning nation-

als and their family members.

Freedom of Movement in the EU: A Look Behind the Curtain

have a job and how do I expect to live in Germany without a job (having into consideration

that we have been in Germany for only a week), then she just hanged up on me, I tried

calling her back but she didn’t answer the phone as the previous days.

Straight after I spoke to her, I decided to get in touch with her manager, I proceeded to

talk to Mr. [Y} , but for my surprise his behavior was exactly the same as hers, while shout-

ing “I don’t have time” more than 5 times and telling me that if I needed any information I

need to get an appointment, but as I replied to him: that was the reason why I was there

to talk to him, because I was not given an appointment and was not going to have one

assigned to me, he started listening to me but while I was talking to him he kept on saying

that he didn’t have time to take care of my concern; so he confirmed the same informa-

tion that Mrs. [X] provided me with; I believe that an entity that is taking care of foreigners

should have qualified personnel with enough education, knowledge and patient to deal

with people and not the opposite as I can see it is this Auslaenderbehoerde.

I feel like my rights and my husband rights are not being honored and I am being disre-

spected in my own country.

I would like the EU and Solvit to step in and help us out with this situation and hopefully

get in touch with them and remind them of my rights as a EU citizen who exercised treaty

rights in another EU state.

As of now we have not been able to do anything for him, like his driving license, insur-

ance, etc. which needs to be done as soon as possible, and also to give us advice on

how to proceed for us to be able to stay in my country.

Thank you very much for your attention and help.”

4.6. Dual nationals

According to the Court, when an EU national falls within the scope of EU law as a result

of exercising their free movement rights (or because their situation entails a relevant

cross-border element), then the fact that they also happen to be a national of the other

Member State involved does not “remove” the EU law connection and does not make

their situation “wholly internal”

357

. Equally, as the Court recently made clear in C-165/16

Lounes, when an EU national exercises their Treaty rights by moving to another Mem-

ber State and then acquires the nationality of that state, they do not lose their EU law

connection. Thus, their non-EU family members should benefit from EU law when it

comes to obtaining a right of residence in that country.

Prior to the Court’s judgment in Lounes, the UK had ceased to apply EU law to EU

nationals as soon as they naturalised as UK nationals

358

and refused to apply EU law

when considering their family members’ residence applications. In the period between

January 2015 and June 2017, YEA received at least 23 such enquiries as regards the

UK. This same issue has, however, been reported in Sweden

359

and Cyprus

360

It would, therefore, be helpful to provide clarity on this issue to the Member States,

incorporating the principles contained in Lounes in a new Communication.

Another interesting question is what happens if it is the non-EU family member that

acquires the nationality of the host Member State and wishes to rely on EU law to

have a dependant relative join them and their migrant EU spouse in the host Member

State? This situation arose when a Spanish national and his Ukrainian spouse moved

to Ireland, pursuant to Directive 2004/38. The Ukrainian spouse’s mother visited them

in Ireland several times and each time had her visa issued on the basis of Article 5(2)

of Directive 2004/38 as the dependant mother-in-law of a Spanish national. When the

Ukrainian wife acquired Irish nationality, the Irish authorities denied her mother an entry

visa on the grounds that it is her daughter, now an Irish national, who must sponsor the

visa application, which must be processed on the basis of Irish immigration law. The

Irish authorities claimed that there was no longer an EU law connection.

There is, however, no justification for treating such situations as ‘wholly internal’ since,

like in the above scenario where the EU national acquires the nationality of the host

Member State, the exercise of EU rights preceded the acquisition of nationality. Moreo-

ver, in these situations, the migrant EU national still remains a migrant EU national, thus

there is no question that the ‘EU law connection’ with their parent-in-law still exists.

A non-EU dependant parent-in-law remains their ‘family member’ as defined in Article

2(2) of Directive 2004/38, irrespective of what the nationality of their spouse is.

357

Cases C-148/02 Garcia Avello, C-353/06 Grunkin-Paul (in the case of surnames), 292/86 Gullung, C-419/92

Scholz, C-339/96 Gilly, C-152/03 Coulais. Also Cases C-7/10 and C-9/10 Kahveci & Inan (in the case of dual

EU/Turkish nationals who could can rely on the EU/Turkey association agreement family reunion rules even after

they have naturalized in their host Member State)

358

This policy was introduced with the Immigration (European Economic Area) (Amendment) Regulations 2012.

359

A Spanish national obtained Swedish nationality after exercising her Treaty rights there for many years. One

year after obtaining Swedish nationality she married a Moroccan national who applied for a residence card on the

basis of EU law. The Swedish authorities refused to take into account his spouse’s Spanish nationality and to

treat his application under EU law and insisted on applying Swedish immigration rules. The EU national decided to

give up her Swedish nationality so that her husband could benet from EU rules, however, she then faced prob-

lems with some Swedish government agencies who claimed that she had been living in Sweden “for too long”;

Also a permanent residence card was refused in Sweden to the spouse of a Danish/Swedish national.

360

Where the Cypriot authorities refused to treat application for a residence card of family member of UK na-

tional under EU law because the UK national was of Cypriot origin, despite the fact that he had never applied

for Cypriot nationality.

4. The Need for Clarification

4.7. Dependent non-EU children

after they are no longer dependants

Children of EU nationals or of their spouse or partner have the right to reside with the

EU national in another Member State if they are under the age of 21, or if they are over

21, but still dependent on the EU national

361

What happens, however, in the situation when children enter a Member State as “family

members” within the scope of Directive 2004/38 but then grow up, get a job and cease

to be dependent on the EU national?

Directive 2004/38 does not provide for this eventuality. A technical interpretation would

suggest such children no longer fall within its scope and the host Member State can

require them to obtain a residence permit on the basis of national law. Paradoxically,

such children, who may have got a job without needing a work permit

362

, may now have

to apply for one.

Such cases have arisen in the UK

363

and Bulgaria

364

, where the national authorities

have adopted this literal interpretation, denying the right to residence to such adult

children who were working – in some cases giving them 30 days to leave the country.

Such an approach, however, is at odds with the judgment of the Court in Case C-423/12

Reyes, where the Court held that as long as the dependance situation existed when the

child entered the country, such children can reside in the host Member State and that,

moreover, “[...] Article 23 of that directive, … expressly authorises such a descendant,

if he has the right of residence, to take up employment or self-employment”

365

. It fol-

lows that if an initially dependant child then gets a job and is thus no longer dependent

on their EU parent, they do not lose the right to residence.

We invite the Commission to make this clear to the Member States, so that such chil-

dren and their parents do not end up in the illogical situation of essentially losing the

rights they had been enjoying for years or, in the worst case, being forced to leave a

country they had made their own.

4.8. Requirements for issuing permanent

residence documents

Article 19 of Directive 2004/38 provides that “Upon application, Member states shall

issue Union citizens entitled to permanent residence, after having verified duration of

residence, with a document certifying permanent residence”.

361

Article 2(2)(c).

362

Pursuant to Article 23 of Directive 2004/38 which provides for the right of family members to work in the

host Member State.

363

A Canadian daughter who lived in the UK with her mother for 5 years and held an EU family member’s

residence card was refused permanent residence as she was over 21 and employed – she was advised by the

Home Ofce to leave the country and apply for residence based on her British ancestry; The adult, Canadian

children of an Irish national, who came to the UK as minors and held family members residence cards, had their

applications for permanent residence denied and were given 30 days to leave the UK. The children got jobs

while resident in the UK but still resided with their mother. The family had no link with Canada and going there

would be traumatic for one of the children who had suffered sexual abuse in Canada from a mentor; The same

issue arose in two other enquiries concerning the UK.

364

Where the non-EU adult dependant son of a UK national joined his mother in Bulgaria, obtained a family

member’s residence permit and one year later got a job. Upon expiry of their residence documents, the UK

national the Bulgarian authorities advised the UK that she could obtain the permanent resident status but that

her son had to apply for residence under national law.

365

Par. 32.

Freedom of Movement in the EU: A Look Behind the Curtain

It is, therefore, clear that Member States can request proof that the applicant com-

pleted a 5 year uninterrupted period of residence. It is also clear that “continuity of

residence may be attested by any means of proof in use in the host Member State”

366

What is not clear, however, is whether national authorities can require to see proof that

the applicant is a “Union citizen entitled to permanent residence” within the meaning of

Article 16 of Directive 2004/38? I.e. can the applicant be required to prove that during

a five year period they were indeed residing “lawfully” in their host Member State – or

does the burden of proof shift to the authorities at the moment a five year residence

period is completed? If the authorities can request to see proof of “lawful residence” in

the initial five years, what evidence is acceptable? Can “any means of proof” be used,

as is the case when proving continuity of residence?

Moreover, what type of proof can be required of non-EU family members who apply for

a permanent residence card? Article 20 of Directive 2004/38, which outlines the formali-

ties for issuing permanent residence cards to non-EU family members, does not make

any reference to what proof must be produced by the applicant – there is no mention

of verifying continuity of residence as there is in Article 19. Article 20(1) merely provides

that “Member States shall issue family members who are not national of a Member

State entitled to permanent residence with a permanent residence card [...]”. Does that

mean that national authorities can verify that a family member is “entitled” to permanent

residence at the moment of application? If so, what means of proof can they request?

As explained in section 3.2.2.6 above, Member States do go beyond requiring just

proof of continuity of residence. Excessive requirements are applied to both EU citizens

and to non-EU family members applying for permanent residence.

It is, therefore, essential to provide clarity on whether Member States are entitled to

check the “lawfulness” of residence during a five year period when EU nationals and

their family members apply for a permanent residence document. If so, it ought to be

specified when such verification may be carried out (i.e. does there need to be a sus-

picion that the citizen did not reside lawfully for the entire five year period?). Moreover,

it should be made clear that the applicant should be able to prove this by any means

of proof

367

It is also essential to specify that in no circumstances should the applicant be required

to provide proof that they satisfy the Article 7(1) conditions after the completion of the

relevant five year period, or proof of other conditions, such as social integration and

language knowledge.

4.9. The start of the

“continuous period of ve years”

As evident from section 3.2.2.6 above, some Member States are adopting a restrictive

approach to what they accept or require as proof of “continuous five year residence”

when a citizen applies for a permanent residence document.

France, Belgium and Italy seem to require that the relevant period immediately pre-

cedes the date of application, when there is no such requirement in the Directive.

Whereas in Spain, a Croatian national who had completed such a five year period was

told to wait until the end of five years from the date of Croatia’s EU accession before

being eligible to apply for permanent residence. This is contrary to the Court’s judg-

366

Article 21 of Directive 2004/38.

367

I.e. if a citizen was working part of the time and had sufcient resources and healthcare cover for the rest of

the ve year period, there should be no requirement to see proof of continuous employment.

4. The Need for Clarification

ment in joined Cases C-424/10 Ziolkowski and C-425/10 Szeja where the Court made

absolutely clear that periods of residence completed by a national of a non-Member

State before the accession of that State to the EU must be taken into account in calcu-

lating the five-year qualifying period, provided they were completed in compliance with

the conditions laid down by EU law.

For these reasons, it is worth clarifying to the Member States that the five years can

start at any time, even prior to the EU accession of the citizen’s country of origin, and

do not necessarily have to precede the date of application.

4.10. The beginning and the end

of the initial three months of unconditional residence

Directive 2004/38 provides that, for the first three months, residence is unconditional

and after that an EU citizen may be required to register. Family members must register if

they intend to stay for longer than three months. There is, in principle, nothing stopping

EU citizens and their family members from registering as soon as they arrive, as long

as there is an intention to stay for longer than three months.

What is not clear, however, is what happens to those who may not be staying for a

continuous 3 months after they first arrive but intend to come and go – and may also be

doing the same in other Member States. This is the case of those who travel frequently

and have no fixed place of residence

368

, such as, for example, long distance truck driv-

ers

369

or persons who work on rotation contracts (for example, working six weeks on

– six weeks off on an oil rig outside the EU

370

While these citizens face no issues as regards their own residence, they face problems

getting a residence document for their non-EU spouse because they cannot demon-

strate an intention to stay longer than 3 months at any one time. This, in turn, means

that their non-EU spouse is limited by short term visa requirements and cannot stay

with them in the EU for longer than 90 days in every 180. A result that is at odds with

the fundamental right to family life – enshrined in Article 7 of the EU Charter on Funda-

mental Rights.

It would be helpful to clarify that time does not necessarily have to restart every time the

EU national leaves. As long as the EU national satisfies the conditions in Article 7(1) of

Directive 2004/38 and has an intention of staying in that Member State for longer than

3 months – even if intermittently – then their non-EU spouse should be issued with a

residence card.

368

A Lithuanian citizen was employed by a Latvian employer but due to the nature of the work traveled fre-

quently between the Baltic countries and resided in temporary accommodation each time. She was not able to

obtain a residence document from any country as she did not have a stable address in any.

369

An Estonian national worked as a long distance truck driver for a Finnish employer. He did not have a xed

permanent residence in any EU country but stayed temporarily in Finland, Belgium, Germany and Netherlands.

For this reason he was unable to obtain a residence permit for his Russian wife and she was only able to join

him for 90 days in every 180.

370

Reported a few times by EU nationals that reside in Cyprus and work in the Middle East. Also in Cyprus

where an EU national with the intention of settling, obtained a registration certicate and shortly thereafter left in

order to bring his family from Pakistan to Cyprus with him. He did not have time to complete all administrative

formalities as regards his employment before travelling to Pakistan and his family members were denied a visa

because he had not demonstrated that he was “effectively resident” in Cyprus.

Freedom of Movement in the EU: A Look Behind the Curtain

4.11. The right of permanent EU residents

to have their family members join them if they are

no longer self-sucient

Pursuant to Article 7(1)(d) of Directive 2004/38, family members have a right to resi-

dence for more than three months in the host Member State when they are “accom-

panying or joining” an EU citizen who is either working or has sufficient resources and

comprehensive sickness insurance.

Article 16 provides that EU citizens who have “resided legally for a continuous period

of five years” in the host Member State can stay there permanently without needing to

satisfy the residence conditions of Article 7(1).

What happens, however, in the situation where an EU citizen who has obtained the

right to permanent residence wishes to have their family members join them, but s/

he no longer satisfies the Article 7(1) conditions? Do such EU citizens, who may even

be relying on the state for financial assistance, still have the right to have their non-EU

family members join them?

Article 16(2) does not provide much clarity – it merely states that non-EU family mem-

bers also acquire the right to permanent residence only once they have “resided with

the Union citizen in the host Member for a continuous period of five years”. This is un-

problematic if they enter the host Member State at the same time as the EU national. If,

however, they arrive later and, at some point before they complete their five years, the

EU national no longer satisfies the residence conditions, their right to residence may

be jeopardised. If they attempt to arrive when the EU permanent resident is no longer

self-sufficient, then they may not even be allowed entry.

The Commission’s view

371

seems to be that “Article 16(1) in conjunction with Article

7(1), should be interpreted as meaning that an EU national with a right of permanent

residence, who is a pensioner and in receipt of social welfare benefits in the host State,

may claim the right to family reunification even if the family member will also be claiming

social welfare benefits”

372

Evidence suggests that Member States do not allow family reunification unless the EU

permanent resident still satisfies the residence conditions of Article 7(1), even if they are

not claiming financial assistance from the State

373

371

As evidenced from its observations before the EFTA Court in the Case E-4/11 Arnulf Clauder (http://www.

eftacourt.int/uploads/tx_nvcases/4_11_Judgment_EN.pdf).

372

Arnulf Clauder par. 19.

373

Where a retired UK permanent resident wished to have his non EU wife join him in Cyprus and was asked to

provide proof of sufcient resources, healthcare cover and a house rental agreement. The citizen was not rely-

ing on assistance from the State. A similar issue arose in the UK, although in that case the EU citizen resided in

the UK since 1977, where he had worked for 25 years but was, for the last 6 years, receiving disability benets;

A Dutch national resident in France since 2000 who had acquired the right to permanent residence with her

two minor daughters, was told by the prefecture that her non-EU husband (and father of the two girls) was

unlikely to obtain a residence card because she did not currently have sufcient resources to cover the needs

of the family; A Portuguese national resident in France since 1966 wished to have his Moroccan wife reside

in France with him and was faced with a Catch 22 situation. She was required to provide evidence of health

insurance in order to receive a residence card. The french social security authorities had conrmed that she

would be covered by the husband’s own insurance as his family member, but only once she obtains a residence

card. The citizen was not claiming nancial assistance from the state; A residence card was denied to a non-

EU husband of a French national who had been resident in the UK since 1987 and had acquired a permanent

right of residence. The reason invoked, apparently, was that she had wrongly declared being self-sufcient. The

citizen was receiving sickness benets from the State after having worked in the UK for several years prior to

obtaining the right to permanent residence.

4. The Need for Clarification

Clarity on this issue would, therefore, be welcome, as a restrictive interpretation of the

Directive leads to a result that is at odds with EU citizens’ fundamental right to family

life (Article 7 of the Charter).

4.12. The “envisaged period of residence”

Article 11 of Directive 2004/38 provides that the family member’s residence card “shall

be valid for five years from the date of issue or for the envisaged period of residence

of the Union citizen, if this period is less than five years”. Presumably, it is the citizen

that is to “envisage” such a shorter term, not the authorities of the host Member State.

If the citizen has a short term employment contract or enrolls on a study period that

lasts less than five years, but at the moment of registration expresses no intention to

leave at the end of that period, then his – as well as his family members’ – residence

documents should not be limited in duration.

This is not always the case, as demonstrated by an enquiry from an Italian national

resident in France whose spouse received a residence card with duration limited to

the period of his employment contract, even though he resided in France prior to the

contract and did not express any desire to leave at the end of its term.

4.13. Limiting the duration of a visa

As explained in section 2.2.7 above, family members who applied for entry visas have

had the duration of their visas limited arbitrarily or for reasons that are at odds with fam-

ily members’ rights under Directive 2004/38. Since EU nationals have a right to have

their family members accompany them to the host Member State and remain there

unconditionally for up to three months, it follows that short term entry visas should be

issued for the maximum duration of three months. If there are no grounds to deny a visa

in any particular case, there should be no grounds for limiting its duration.

There is currently no express guidance on this issue, neither in the Commission’s 2009

Communication nor in the Schengen Visa Handbook. Given how frequently Member

States ignore family members’ EU rights during the visa application process, clarity on

this issue would be most welcome.

4.14. Residence cards issued to family members

of own nationals

Article 5(2) provides that family members who possess a “valid residence card referred

to in Article 10” shall be exempt from the visa requirement. An Article 10 residence card

is normally issued to family members of migrant EU nationals. Family members of own

nationals are generally treated under national law. Some countries, however, issue a

residence card in the same format to family members of their own nationals irrespective

of whether or not the EU national has exercised their EU rights

374

. This leads to confu-

sion among citizens who are given the impression that they can rely on their residence

374

Belgium issued Article 10 residence cards to family members of a Belgian citizen – they wonder whether

they can travel to the UK visa free – UK Guidance provides that the card must have been issued by a country

other than that of the EU national’s origin.

Freedom of Movement in the EU: A Look Behind the Curtain

card to travel in the EU without a visa and who may then be denied entry as their resi-

dence card is not accepted

375

or denied boarding by the air carrier

376

Although this does not generally affect travel in the Schengen area and the Schengen

candidate countries (that apply Schengen rules unilaterally), since non-EU Schengen

residents have an independent right to travel visa free in the Schengen area, it has

come up as an issue when citizens wish to travel outside Schengen, specifically to

the UK.

It would be helpful to clarify that Article 10 residence cards should be reserved for fam-

ily members of EU migrants, including own nationals who have returned home after

having exercised their free movement rights

377

4.15. The rights of non-EU carers of EU minors

In Case C-200/02 Zhu and Chen, the CJEU held that “a young child can take advan-

tage of the rights of free movement and residence guaranteed by Community law”

378

Articles 20 and 21(1) TFEU and Directive 2004/38 apply to them, and as long as they

have sufficient resources and healthcare cover, they can reside in the host Member

State. The Court clarified that “[i]n such circumstances, those same provisions allow

a parent who is that minor’s primary carer to reside with the child in the host Member

State”

379

. Thus, non-EU carers of EU minors derive residence rights from their children

on the basis of EU law despite the fact that they do not fall within the strict definition of

‘family members’ in Article 2(2) of the Directive.

The practical questions that arise are:

 Can such parents benet from the accelerated procedure to obtain an entry visa when

travelling with their children in the EU?

 If the child and parent/s settle in another Member State, what type of residence card

should such parents receive?

If the Court’s judgment in Chen is to be given useful effect, non-EU parents of mobile

EU minors should benefit from the same rules that apply to ‘family members’ of EU

nationals in the strict sense of Directive 2004/38. Treating entry and residence applica-

tions from such parents on the basis of national immigration rules would be at odds

with the Court’s judgment in Chen. The application of stricter rules to non-EU carers

than those that apply to their minor EU national child may lead to the situation where

a parent is denied the right to entry and residence, and that “would deprive the child’s

right of residence of any useful effect”

380

Citizen enquiries received by YEA reveal instances where entry and residence applica-

tions from such parents are being processed on the basis of national immigration rules

and not EU law. There is no provision for Chen parents in section 35 of the standard

Schengen visa application form

381

. The only situation contemplated for parents, is that

375

The non-EU spouse of a Belgian national, resident in Belgium with an Art. 10 residence card was denied

entry to the UK at Calais on the ground that she did not have a visa.

376

A Chinese de facto partner of a Czech national with an Art. 10 residence card issued by the Czech Republic

was told by the UK embassy that she did not require a visa (following the McCarthy ruling), however she was

denied boarding by the air-carrier because her residence card was issued by her partner’s country of nationality.

377

Pursuant to the Surinder Singh case law.

378

Case C-200/02 Zhu and Chen, par. 20.

379

Case C-200/02 Zhu and Chen, par. 47.

380

Case C-200/02 Zhu and Chen, par. 45.

381

For the standard Schengen visa application form see Annex 1 to Regulation 810/2009 (Visa Code).

4. The Need for Clarification

of “dependent ascendant”. Citizens wonder how to fill in visa applications

382

. They are

told they need to fill in all sections of the form and the accelerated procedure is not

applied to them

383

. Sometimes visas are denied on invalid grounds

384

. Moreover, their

applications for residence cards are considered under national law

385

, which means

that sometimes residence documents are limited in duration

386

or denied altogether

387

In order to avoid narrow or incorrect interpretations of the Court’s decision in Chen, it

should, therefore, be made clear that non-EU carers of mobile EU minors should be

treated on the same terms as Article 2(2) ‘family members’ when it comes to their entry

visa and residence card applications.

5. Conclusion

It is evident from the enquiries that citizens are sending to YEA, that their right to free

movement, enshrined in Articles 20(2)(a) and 21 TFEU, is not yet entirely “free”. There

is, indeed, still much room for improvement.

EU citizens need clear and correct information on the entry rules that apply to their

non-EU family members. They need consular authorities (as well as their private visa

service providers) to be aware of the special rules that apply to family members and

to respect those rules – so that family members who are visa exempt can benefit

from visa free travel and those who are not are able to obtain their visas quickly and

for free without having to provide excessive documents or be denied a visa on invalid

grounds.

EU citizens who move to another EU country need a speedy and smooth application

process for obtaining their residence documents and those of their family members. All

mobile EU citizens need this, not just those who arrive with a long term employment

contract.

382

A non-EU parent and his 7 year old UK national daughter wished to travel to France together. He was unsure

how to ll in the Schengen visa application form as it does not provide for the situation of non-EU parents of

EU minors.

383

The Russian mother of two minor Portuguese children was told she needed an invitation to travel to Spain

and that her minor child could not provide such an invitation; A Ukrainian national wishes to travel to Lithuania

with her 3 year old UK national daughter, the accelerated procedure was not applied to her visa application.

384

The UK authorities refused to issue an entry visa to the non-EU primary caretaker of an EU child wishing to

visit family in the UK. The UK authorities required the citizen to demonstrate his child was living in the UK, even

though the UK rules that give effect to the Chen rule do not require such a condition. The UK rules only require

the citizen to demonstrate that his child would be self-sufcient were she to be residing in the UK; A non EU

father wishing to travel with his EU child on a short holiday to the UK was denied a visa. The UK authorities

insisted he had no right under EU law. Four more enquiries on similar facts were received regarding the UK.

385

The Filipina wife of a German national who had a British child applied for a residence card in Germany. Her

application was treated under national immigration law as the spouse of a German national, meaning that she

had to comply with extra formalities, despite German law expressly incorporating Zhu and Chen by way of Ad-

ministrative Regulation on the Free Movement Act (Allgemeine Verwaltungsvorschrift zum Freizügigkeitsgesetz/

EU) paragraph 3.2.2.2, page 11: http://dip21.bundestag.de/dip21/brd/2009/0670-09.pdf).

386

The German authorities refused to consider the residence applications of the Pakistani parents of a Portu-

guese minor and insisted on treating them under national law giving them one year visas.

387

A Nigerian national applied for residence in Romania, where she lived with her minor UK national child. The

Romanian Immigration Ofce refused to register the residence of the EU child and his mother on the grounds

that only the UK father could apply for registration, despite the fact that the UK father had no contact with the

child.

Freedom of Movement in the EU: A Look Behind the Curtain

EU citizens also need to be able to go about their daily lives without being required to

provide a residence document as a condition for accessing essential public and private

services and without arriving at a dead-end because they cannot obtain a national

identification number.

EU citizens need to be treated equally with nationals when EU law gives them certain

rights, and do not need to be penalised for being a national of another EU country.

Finally, EU citizens need their Member States to not exploit legislative loopholes in

a way that restricts their right to residence and encroaches upon their fundamental

rights.

6. Recommendations

On the basis of the evidence at hand, the following FIVE ISSUES that affect the largest

number of mobile EU citizens and their family members are in most need of action at

EU and national level:

1. The personnummer problem in Sweden (section 3.3.1) – this problem has existed

for over 10 years. Action taken at EU and national level to date has not been sufcient to

remedy it. On the contrary, the increasing number of citizen enquiries that YEA continues

to receive on this issue indicates that this problem has worsened since 2015.

Action needed:

 The Swedish tax authority, which issues the personnummer, should:

 accept the EHIC as evidence of comprehensive healthcare cover; and

 relax the excessive requirements for private health insurance so that pri-

vate health insurance policies taken out by citizens can in practice be accepted

as evidence of comprehensive healthcare cover in Sweden.

Alternatively:

A system should be put in place whereby EU migrants can contribute to the Swedish

national healthcare system in a proportional way and be able to rely on this as evidence

of comprehensive healthcare cover without having to provide the S1 Form or any other

evidence of health cover.

 Swedish legislation (§3 of the Swedish Population Register Law 1991), which provides

for the obligation to register in the population registry if one intends to reside in Sweden

for at least one year, should be amended to allow for the possibility to register im-

mediately, or at least within 3 months. This would bring the concept of residence in

the Swedish legislation in line with that in EU law (Directive 2004/38).

Alternatively, if Swedish legislation remains unaltered,

 the Swedish tax authority should accept a letter of intent from the citizen

as evidence that they are likely to be resident in Sweden for at least a year;

and

 the temporary personal number, currently issued to those that can demon-

strate intent to stay in Sweden for six months, should be issued in the same

format as the regular personnummer to ensure it is accepted by the IT systems

of public and private service providers and should be provided to all temporary

residents irrespective of their intended length of stay.

6. Recommendations

2. The residence cards problem in France (section 3.3.2) – this has been a problem

for approximately 3-4 years and has worsened since the Brexit vote, with UK nationals

particularly affected.

Action needed:

 an investigation must be carried out to determine the reason behind the prefectures’

frequent refusal to issue residence documents to EU nationals, despite French and EU

law allowing EU nationals to obtain such documents. (Citizens’ enquiries received by

YEA have not provided any indication of the possible reasons behind this policy). The

prefectures should be instructed to comply with the relevant French and EU legislation;

and

 the Caisse d’Allocations Familiales (and any other government agency applying the

same policy) should be instructed to cease making the payment of benets conditional

upon presentation of a residence document. This is a violation of EU law (Article 25 of

Directive 2004/38), thus enforcement action should be taken by the European Commis-

sion, if necessary.

3. The marriage certicates problem in Spain, Italy, France and Portugal (section

3.2.1.4 and Annex 1).

Action needed:

Positive action is required at EU and national level to ensure that:

 only an apostille stamp (or legalisation) and a certied translation should be re-

quired for a non-EU marriage certicate (or other public document) to be accepted

as proof of family link when non-EU family members apply for entry visas or residence

cards;

 any additional requirements, aiming to establish whether a marriage is genuine,

should only be imposed in cases where there is reason to suspect abuse, not as a

general policy.

4. Excessive delays in issuing residence cards in Sweden, Ireland and the UK (sec-

tion 3.2.3) – this is a persistent problem that exists in several EU countries. However, it

is most serious in Sweden, Ireland and the UK, which account for over half of all citizen

enquiries sent to YEA where this issue has been agged.

Action needed:

While the situation in the UK should be dealt with in the specific context of Brexit,

positive action at EU level is necessary in order to enforce EU law in Sweden and

Ireland, ensuring that residence cards are issued to non-EU family members no

later than six months from the date of application.

5. Excessive delays in issuing entry visas to family members of EU nationals in

Ireland (section 2.2.4.2.4) – this is a serious and persistent problem, which accounts for

3/4 of all YEA citizen enquiries agging the problem of delays to obtain a visa. According

to the Irish Naturalisation and Immigration Service, the current processing time for most

visas is 8 weeks. However, family members of EU nationals have reported signicantly

longer delays.

Action needed:

Positive action is needed at EU and national level to nd a solution that strikes a balance

between preventing abuse and ensuring that EU free movement rules are respected so

that family members of EU nationals are issued entry visas on the basis of an ac-

celerated procedure.

Freedom of Movement in the EU: A Look Behind the Curtain

The non-Recognition of Foreign

Marriage Certicates

ANNEX I

1. Background information

The process of recognition of foreign civil status documents is a matter of national

competence. While steps have been taken at EU level in an attempt to promote mutual

recognition of civil documents issued by other Member States

, problems still exist

when EU nationals and their family members wishing to exercise free movement rights

present documents issued outside the EU.

At present, the formalities for recognising official foreign documents are partly gov-

erned by the The Hague Convention of 5 October 1961

, which has 113 signatories

and institutes the apostille stamp

. For the rest, legalisation is required, which is a more

complex process

As there is no harmonisation on this issue, getting their marriage certificate legalised

or apostilled is an additional administrative step that mobile EU nationals may need to

perform when moving to another EU country together with their family members. This

is necessary in order to prove their family relationship and thus be able to obtain a visa

or a residence card for their family members on the basis of EU law (Directive 2004/38).

The Commission’s 2009 Communication

suggests that the requirement of legalisation

should only be imposed in cases where there is suspicion about the authenticity of the

issuing authority

and not, therefore, as a general policy.

REGULATION (EU) 2016/1191 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 6 July 2016

on promoting the free movement of citizens by simplifying the requirements for presenting certain public docu-

ments in the European Union and amending Regulation (EU) No 1024/2012. For the press release see: http://

europa.eu/rapid/press-release_IP-16-2092_en.htm

The Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation of Foreign Public Docu-

ments.

All EU Member States are signatories. The list of all signatories is available at: https://www.hcch.net/en/instru-

ments/conventions/status-table/?cid=41

This simplies recognition of civil status documents as the only required formality is getting the document

apostilled by the competent authority in the country where it was issued. This apostille stamp is evidence that

the document is genuine and should then be accepted without further formalities in the other countries which

are signatories to the Hague Convention.

The document must be certied by the foreign ministry of the country in which it originated, and then by the

foreign ministry of the country in which it will be used – one of the certications will often be performed at an

embassy or consulate. In practice this means the document must be certied twice before it can have legal

effect in the receiving country.

(COM(2009) 313) (http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52009DC0313).

Section.2.2.2 “Member States may require that documents be translated, notarised or legalised where the

national authority concerned cannot understand the language in which the particular document is written,

or have a suspicion about the authenticity of the issuing authority”. This is in line with the CJEU’s case law

C-424/98 Commission v Italy (par. 37) and C-336/94 Dafeki (par. 19).

Annex I

The enquiries sent by citizens to Your Eu-

rope Advice (YEA) suggest, however, that

this guidance is not always being followed.

Moreover, some Member States seem to

use the non-recognition of foreign marriage

certificates as a way of denying citizens their

EU free movement rights.

This problem has been reported by citizens

in relation to several Member States but ap-

pears to be most serious in Spain, where it

affects both residence card and visa appli-

cations by non-EU family members. Regard-

ing Italy and France, citizens have reported

facing this problem when applying for a visa

at French and Italian consulates and, as a

result, being unable to benefit from the free

accelerated procedure which should be

available to family members of EU citizens. Whereas in

Portugal, several family members have had their resi-

dence card applications delayed or rejected because

their foreign marriage certificates were not recognised,

despite being apostilled or legalised.

2. The problem of non-recognition

of foreign marriage certicates

2.1. Apostille and legalisation

Given the lack of a harmonised approach at EU level,

the apostille stamp (or legalisation), as well as a

certified translation, are often required as a matter

of course in order for a non-EU marriage certificate to

be recognised and constitute proof of the family link.

Sometimes, however, the more complex process of le-

galisation is required, despite the relevant country be-

ing part of the Hague Convention

Some citizens arrive at a dead end when they are re-

quired by the authorities of their host Member State

to legalise their marriage certificate but the embassy

of the relevant country in that Member State refuses

to legalise documents which were issued by its own

authorities back in that country

. 

Three enquiries in relation to Spain brought this to light, one con-

cerned a UK birth certicate.

This seems to be the case of citizens with a Chinese marriage certi-

cate resident outside China as evidenced by 3 YEA enquiries.

Freedom of Movement in the EU: A Look Behind the Curtain



“I am a UK citizen and my wife is Chi-

nese. We were married in China this year

and my wife is now living with me in the

UK on a spouse visa. We wish to visit

countries in the Schengen area as tour-

ists. So, we would like to apply for a free

visa for my wife, as is our right. However,

we have a dilemma. Here’s how it goes:

1. Both the French Embassy and Italian

Consulate in London require us to submit

a marriage certificate and/or translation

that has been legalised in the UK. [...]

2. The Chinese Embassy in the UK does

not normally legalise documents issued

in China. It only provides this service for

documents issued in the UK. The Chinese

Embassy say that if the document is not

from the UK it has to be first notarised by

the issuing country (in our case China) and

then legalised by the UK Government.

[Ref: http://www.chinese-embassy.org.uk/

eng/lsfw/legalization/t1021900.htm]

3. The UK government only legalises

documents issued in the UK (and by UK

authorities). So, they won’t look at our

Chinese marriage certificate. [Ref: https://

www.gov.uk/get-document-legalised]

4. The Chinese authorities in Beijing might

legalise our marriage certificate, but the

French and Italian embassies won’t accept

this, as they both want our documents le-

galised in the UK only (see point 1).”

YEA enquiry received in January 2015.

Spain

Italy

France

Portugal

Belgium

Greece

Hungary

Residence cardsVisas

Non-recognition of foreign marriage

certicates

No. of YEA queries received between 01/2015–06/2017

2.2. The requirement for an EU

marriage certicate

Moreover, there have been some cases where citizens

with non-EU marriage certicates were told by consu-

lates (or by the external visa service providers) that their

marriage certicate would not be recognised simply

because it has not been issued in the EU

. 

2.3. The requirement to register the

marriage in another EU Member State

However, the main issue that citizens face when trying

to prove their family link by way of a marriage certicate

is that certain Member States go beyond the require-

ments of apostille/legalisation and certied translation.

They also require that the applicants provide evi-

dence that their marriage has been registered and

is considered as valid in the Member State of the

EU national’s origin

 UK nationals have been particularly affected by

this policy as there is no obligation to register a mar-

riage in the UK and thus no registry of marriages ex-

ists in the UK

. In the period between January 2015

and June 2017, YEA received 31 enquiries from UK

nationals whose non-EU spouses faced difculties

obtaining a visa or a residence card in Spain, Italy,

France, Portugal and Sweden as a result of this policy.

As regards Spain, it appears that the UK consular

authorities now issue a “certicate of foreign mar-

riage recognition” for the purposes of registration with

Spanish authorities

. This, however, costs €210

and both spouses must be present for it to be issued,

which leads to a Catch 22 situation when the non-EU

spouse needs the certicate to obtain a visa for trav-

elling to Spain in the rst place. As one UK national

writes

: 

Other citizen enquiries bring to light the outright refus-

al by some consulates to accept UK nationals’ foreign

marriage certicates: 

 Another group of citizens particularly affected by this

policy are married same sex couples. These citizens

Spain: (5 equiries), in one case even a Danish marriage certicate was not recognised. The couple was ques-

tioned as to why they did not get married in Poland, the country of the EU national’s origin; Portugal: 1 enquiry.

Spain: (6 enquiries); Portugal: 4 enquiries; 1 enquiry relating to each of Italy, Belgium and Hungary.

For example: Spain: 16 enquiries; Italy: 8 enquiries; France: 4 enquiries; Portugal: 2 enquiries; Sweden:

1 enquiry.

https://www.gov.uk/guidance/notarial-and-documentary-services-guide-for-spain

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/617258/Website_consular_

fees__22_.pdf

YEA enquiry received Q2/2015 (170502).

Annex I

 “I am Irish, my wife is Kenya. We got

married in Kenya. The Spanish Em-

bassy in Kenya says they won’t accept

visa applications from spouses of EU

citizens unless the marriage certificate is

from the EU. I don’t see a requirement

for this in the law as it just says “spouse’

with no qualification on the definition of

spouse. Are they entitled to impose this

condition?”

YEA citizen enquiry received in July 2017.

 “The problem I’am facing is I would

like my Colombian wife and her daugh-

ter to join me here in Spain. I have com-

plied fully with my obligations to reside

in Spain as a EU citizen. The trouble is

for my wife and child to join me on a

family visa the Spanish government

want proof from me that my marriage is

legal in the UK. There [are] a few prob-

lems with this:

A. There is no legal obligation for UK

citizens to register their marriage.

B. The cost of obtaining recognition

from the UK is for me a lot of money, the

total being £205.

C. The UK embassy states we both

have to be present to collect this certifi-

cate. Even though my wife cannot come

without it.

D. If I can achieve this in Colombia it

would mean something in the region of

over £1000 for one piece of paper and

10000 mile round trip.

It would appear to me that these are

deliberate delaying tactics employed by

the state. I’m more than happy to prove

reasonable documents and information.

But I’m not a cash cow.”

arrive at a dead end when they are required to register their marriage in the EU citizen’s

country of origin but that country does not recognise same sex marriage

. This leads

to the paradox that the non-EU spouse is unable to benet from Directive 2004/38 to

obtain a family member’s residence card, even though their host Member State itself

does recognise same sex marriages.

This has been reported on three separate occasions by Italian nationals seeking residence cards and entry

visas in Spain who could not register their same sex marriage in Italy. Although Italy has since recognised same

sex unions, several EU countries still do not, thus nationals of those countries wishing to settle with the same

sex partner in a Member State which requires such marriage registration would face the same issue.

Freedom of Movement in the EU: A Look Behind the Curtain

 “I am a British National resident in Spain. My wife of three years is Philippina and has

been domiciled in Bangkok for more than 35 years, having been a teacher in International

Schools in Bangkok, and is now living in Bangkok on a retirement Visa. After three years

or more of obstruction from the Spanish Embassy in Bangkok on the issuing of a Family

visa to my wife, they have finally given a reason. They say that the UK does not recognise

Foreign Marriages held abroad, as there is no system for registering/storage of these

marriages in the UK. This being the case, they cannot recognise the Foreign marriage

of a UK National held abroad for the issuing of a Family Visa. The Spanish Embassy in

Bangkok is saying that ‘UK Member’ foreign marriages held abroad, must be recognised

as valid in the UK Court system, before it will recognise ‘UK Member’ marriage certifi-

cates for the issuance of Family Visas. An International Lawyer has quoted 7000 pounds

uncontested, to 25000 pounds contested fees for complying with the Spanish require-

ments. He also said that there is no dedicated route for doing this in our courts, and it

should not be a requirement [...]” (YEA enquiry received in May 2016).

VFS, processing visas for Spain in Vietnam, informs the Vietnamese wife of a UK national

that the visa fee waiver does not apply to her. She is told that “Although the U.K is not of-

ficially out of the EU, there is a new law that family members of British nationals have to pay

visa fee and will be considered as any other applicant” (YEA enquiry received in Q3/2016).

A UK/Peruvian couple with a Peruvian marriage certicate wish to travel to Ireland via Ma-

drid. The citizen writes: “The Spanish Consulate here in Lima [...] refused to accept our

Peruvian marriage certificate (which has an apostille) [and] doesn’t need to be translated

as it is already in Spanish, but they told my wife that for them to accept it I would need

to register our marriage with the British government [...] My wife even quoted them [...]

Directive 2004/38/EC, Article 5.2 [...] their response to this was they have their rules &

that EU Law has nothing to do with them! They also warned my wife if she flies to Madrid

without a Schengen Visa the Spanish authorities will deport her back to Peru regardless

of the fact she has a valid Irish Visa!” (YEA enquiry received in March 2015).

A UK national resident in Spain writes: “I’m currently pregnant with our 3rd child. My hus-

band is a Nigerian national resident in UAE. He has been repeatedly refused a spanish

visa to visit us here. Im resident here with our 2 children and due to give birth in May. I

really want my husband to be with me for the birth, he missed the birth of our other chil-

dren. The spanish embassy in UAE request our nigerian marriage certificate be stamped

by the british embassy but the british embassy refuse to stamp it. The spanish embassy

keep giving the same reasons for refusal and not explaining or asking my husband for an

interview. I think it is so unfair. Our marriage certificate is already stamped by ministry of

foreign affairs in nigeria and Nigerian embassy in UAE. My husband has his own company

in UAE and sufficient finances, he supports us financially. The spanish embassy also with-

held our police invitation letter which is still valid which means I cannot apply for a new

one. We’ve just had another visa refusal. I have 8 weeks before I’m due to give birth. I’m

having to fly to uae on Sunday heavily pregnant to see my husband to see what can be

done. Please advise. We have appointment with spanish embassy in 31st March. What

can I do to help my situation?” (YEA enquiry received in March 2015).

Moreover, In order to obtain the relevant document from the EU national’s country of

origin, citizens have been required to submit their birth certicates, which makes the

whole process even longer and more expensive

Furthermore, it often takes several months to obtain the relevant document from

the EU citizen’s home country – timeframes between 3 months to over 1½ years have

been reported

. As this Hungarian national writes: 

2.4. The requirement to provide recent documents

A further obstacle that citizens often report is the requirement to provide documents

that are recent. The timeframe usually given is that the documents should have been

issued in the 90 days prior to the application

This requirement creates additional trouble, as citizens need to obtain new documents

from the non-EU country that issued them, a process that can be very expensive and

complex and often impossible to accomplish in the short timeframe given by the authori-

ties. In Spain, citizens have reported being given only 10 days to bring the required

documents.

The following two enquiries from citizens are illustrative of the issues above: 

See the second case study in paragraph 2.4 below.

Time frames of over 1½ years have been reported in Hungary, upto 1 year in Italy and Spain itself, 8 months

in Germany and 3 months in the Netherlands.

Spain: (4 enquiries); Portugal: (1 enquiry), Belgium: (1 enquiry) (six months).

Annex I

 [...] I am working in Spain. My husband is Serbian (non EU). We got married in Serbia.

They told us we need Serbian marriage certificate to be recognised in Hungary in order to

get working permit for him in Spain since I work as a EU passport holder in Spain. To get

it we need to wait minimum 6 months (information from official Hungarian Ministry web

page we got from Hungarian embassy in Madrid), but I know people waiting already 1.5

years with no answer from Hungary.

My husband has his date for visa application on June 9. We got it couple of weeks ago

and it is extremely difficult to get date. I am afraid that we will not have this document till

then and that we will have to ask for a new appointments for him. In that case it would be

earliest in August. The other problem is that Spain recognizes certificates for 3 months

from issuing date and that we have to apply for appointments and certificate again if we

don’t get certificate on time.

Is there any possibility to apply with Serbian marriage certificate translated and approved

in Spanish [embassy] in Belgrade since we are both holding Serbian passport. Is there

any other solution for this situation.

 A UK national writes: “My wife and daughter who are Chinese nationality, have applied

to the relevant authority in Spain (the Extranjeria), and I was just informed that the mar-

riage and birth documents that we provided as proof of familial relations were outside of

their validity date (3 months) and that we must give them the proper documents within 10

working days or the application will be refused and they must therefore leave the country

since they have no more time left on their visa.

The marriage and birth documents that we provided to them were the same documents

that the Spanish embassy in Beijing required in order to process the visa for them to

come to Spain (non-eu family member of eu citizen visa).

In some cases, no indication is provided of how recent a document must be – the burden

of proof is simply reversed seemingly as a matter of general policy. Despite the Com-

mission’s guidance that it is individual cases where there is a “well-founded suspicion of

abuse” that can be investigated

, applicants in situations with no indication of abuse had

to bear the burden of proving that they were still in fact married at the time of application

2.5. Additional invalid reasons for rejecting

a marriage certicate

Some citizens have been denied a recognition of their marriage certificates for reasons

that can only be described as pedantic, such as “the judge who signed it wrote the

date in by hand”

or, the marriage certificate was translated by a certified translator in

Madrid but had to be translated by one in Catalunya

, or the marriage certificate had a

stamp on it from a third country

, or the apostille stamp was placed on a certified copy

of the certificate instead of on the original

Par. 4.2 of the 2009 Communication.

This appears to be the approach taken by the Greek consulate in Bangkok (3 enquiries evidence this).

Italy.

Spain.

Estonia.

Spain.

Freedom of Movement in the EU: A Look Behind the Curtain

Given that the Spanish embassy accepted these documents as valid in Beijing, and I

have seen no regulations regarding a 3 month validity date on any information coming

from the Extranjeria or any other agency, I regard it as unfair that this has been the reason

for the refusal of the residence card.

Further, a new translation (apostilled and verified in Beijing by the relevant authorities)

cannot be obtained in 10 days, therefore I regard the timeframe as being unreasonable.

What is the complaints/appeal procedure for cases such as these? Can my wife and

child stay in Spain when the appeal procedure is ongoing?”

 “I am a Dutch citizen and my wife is from the United States. We were married in the

United States and have an American marriage certificate. We moved to Spain together

to work in September.

Prior to our departure, we contacted the Spanish consulate in the United States and

were told we would need our official marriage certificate and an apostille from the Hague

Convention for my wife to receive residency. When we arrived in Spain we had these

documents officially translated into Spanish to submit with her application.

This week we received notice from the Spanish government that our marriage needs to

be registered in the Netherlands and we need a document to prove this. An American

marriage certificate and apostille was not enough. We were told we would have 10 days

to submit this document.

I contacted the main registry in the Hague and found that we will have to travel there in

person to register our marriage and that this process can up to three months. We would

also both need to submit our birth certificates for this which will take additional weeks to

collect beforehand.

What can we do now so that we can stay in Spain? There seems to be no way we can

get this document in 10 days and we weren’t even aware that we needed it. Even the

Spanish government website for this application does not say it is required.”

3. The consequences

The administrative hassle and extra costs that these requirements add are signicant.

However, the more serious implications of the above policies are the denial of EU entry

and residence rights to non-EU family members, namely:

 non-EU family members are unable to benet from the free, accelerated procedure

provided for by Directive 2004/38 for obtaining a visa – some citizens have been obliged

to apply as regular visitors because the consulate did not recognise their family link even

though they provided apostilled and translated documents

, while others decide to do

so voluntarily and pay the relevant fee because the administrative hassle and cost of

obtaining the extra documents required to prove their family link exceeded that of ap-

plying just as a regular visitor; or

 non-EU family members have their visa applications denied on the grounds that they

have not proven their family link and have not satised the more stringent conditions that

apply to regular visa applications

; or

 for those family members who are faced with the above requirements when applying

for a residence card, the resulting added delay puts them in a situation where

their visa is due to expire and they have to choose between having to return to their

home country and reapply for a new visa or overstay their visa term

; or

 family members are unable to work in their host Member State until they receive a

residence card, which could take up to a year

4. Conclusion and recommendations

The above requirements constitute a signicant obstacle to EU citizens’ and their family

members’ freedom of movement. The families affected bear an added administrative

and nancial burden, and in many cases also an emotional one, as their family reunica-

tion is often put on hold.

There is often no clear mention of these additional requirements on the immigration por-

tals, which generally only refer to the need for legalisation or apostille of foreign docu-

ments and to the need for translation

. Thus, citizens often only nd out about them

when submitting their application.

While the applicant bears the initial burden of proving their family link, they can only be

required to prove the genuineness of their marriage or its continued existence in cases

where there is reason to suspect abuse

. That burden of proof is on the authorities, who

E.g. The Service provider for the Spanish embassy in Istanbul refused to accept a Turkish marriage certicate

from a Bulgarian/Turkish couple and thus refused to process the application on the basis of Directive 2004/38.

No reason was given for the denial; Enquiries on similar facts concerned Spain, Italy and France.

E.g. Hungary, the Netherlands and Sweden.

Even though pursuant to C-127/08 Metock, these family members should not be concerned about overstay-

ing their visa term, nonetheless citizens are generally not aware of their rights and this becomes a major cause

of stress for them. National authorities often tell them that they must return home and reapply for a visa if they

cannot get their residence document in time. But in one case (168769) a family member had his passport taken

away and was told that unless his status is conrmed he was going to be ned for overstaying his visa and

deported. Also in Denmark, a family member was not issued with a registration certicate while the Danish

authorities were trying to verify their foreign marriage certicate – the citizen was faced with an expiring visa.

Spain: (two enquiries); Portugal: (two enquiries).

For example see the Spanish immigration portal (http://extranjeros.empleo.gob.es/es/InformacionInteres/

InformacionProcedimientos/CiudadanosComunitarios/hoja103/index.html#documentacion). The website of

the Spanish police does include a brief mention but only in Spanish (https://www.policia.es/documentacion/

comunitarios/est_resid.html).

Article 35 of Directive 2004/38.

Annex I

100

must prove that the marriage is fake in the event that they suspect this to be the case.

The above additional requirements essentially reverse this burden back onto the appli-

cant. The applicant, who needs their visa for imminent travel, or their residence card in

order to comply with administrative formalities or take up employment, has no choice

but to comply with these burdensome additional requirements.

Positive action is, therefore, required at EU and national level to protect the affected

mobile EU citizens and their family members by ensuring that:

 only an apostille stamp (or legalisation) and a certied translation can be required

for a non-EU marriage certicate (or other public document) to be accepted as proof of

family link when non-EU family members apply for entry visas or residence cards;

 any additional requirements, aiming to establish whether a marriage is genuine,

should only be imposed in cases where there is reason to suspect abuse and not

as a general policy.

Freedom of Movement in the EU: A Look Behind the Curtain

Freedom of Movement

in the EU:

A Look Behind the Curtain

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