EUU, Alm.del - 2018-19 (1. samling) - Bilag 660: Brev til beskæftigelseskommissær Marianne Thyssen om effektiv håndhævelse og implementering af EU-reglerne

Europaudvalget 2018-19 (1. samling)
EUU Alm.del Bilag 660
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DIRECTORATE GENERAL FOR INTERNAL POLICIES

POLICY DEPARTMENT C: CITIZENS' RIGHTS AND

CONSTITUTIONAL AFFAIRS

CIVIL LIBERTIES, JUSTICE AND HOME AFFAIRS

PETITIONS

Obstacles to the right of free movement

and residence for EU citizens

and their families

Comparative Analysis

STUDY

Abstract

This study, commissioned by the European Parliament’s Policy Department for

Citizens’ Rights and Constitutional Affairs at the request of the LIBE and PETI

Committees, presents a synthesis of in-depth studies in nine Member States in

addition to broader EU and national research. Based on an analysis of selected

provisions of Directive 2004/38/EC in Belgium, France, Germany, Ireland, Italy,

Poland, Spain, Sweden and the UK, it identifies the main persisting barriers to

free movement for EU citizens and their family members. The study also examines

discriminatory restrictions to free movement, measures to counter abuse of rights

and refusals of entry and residence rights, in addition to expulsions. It finds that,

ten years after the deadline for transposition, there is general compliance, though

some challenges remain. More systematic data collection, evaluation and

guidance is thus required. The nine country studies are made available separately.

PE 571.375

EUU, Alm.del - 2018-19 (1. samling) - Bilag 660: Brev til beskæftigelseskommissær Marianne Thyssen om effektiv håndhævelse og implementering af EU-reglerne

ABOUT THE PUBLICATION

This research paper was requested by the European Parliament's Committee on Civil

Liberties, Justice and Home Affairs and Committee on Petitions and was commissioned,

supervised and published by the Policy Department for Citizens’ Rights and

Constitutional

Affairs.

Policy departments provide independent expertise, both in-house and externally, to

support European Parliament committees and other parliamentary bodies in shaping

legislation and exercising democratic scrutiny over EU external and internal policies.

To contact the Policy Department for Citizen's Rights and Constitutional Affairs or to

subscribe to its newsletter, please write to:

[email protected]

Research Administrators Responsible

Ottavio MARZOCCHI and Darren NEVILLE

Policy Department C: Citizens' Rights and Constitutional Affairs

European Parliament

B-1047 Brussels

E-mail:

[email protected]

PROJECT MANAGERS/AUTHORS

Marta BALLESTEROS, Principal Legal Advisor, Milieu Ltd.

Gillian KELLY, Legal Advisor, Milieu Ltd.

Nathalie MEURENS, Legal Advisor, Milieu Ltd.

Anna PEREGO, Legal Researcher, Milieu Ltd.

SENIOR EXPERT

Jo SHAW, Director of the Institute for Advanced Studies in the Humanities, University of

Edinburgh

NATIONAL EXPERTS

Austria

Elena FRIES-TERSCH

Belgium

Nathalie MEURENS and Jozefien VAN CAENEGHEM

Bulgaria

Zravka OUGRINOVA, Elena VARBANOVA and Aleksandar DORICH

Cyprus

Valentina DIMITRIOU

Croatia

Damir PETROVIC

Czech Republic Hana SPANIKOVA

Denmark

Nina Joye SMITH

Estonia

Kristjan KALDUR

Finland

Laura ISOTALO and Johanna SKIPPARI

France

Jean-Christophe NICAISE CHATEAU, Vanessa LEIGH, Sophie MOREL and

Isabell BÜSCHEL

Germany

Ferdinand WOLLENSCHLAGER

Greece

Magdalini-Emmanouela KOLLATOU

Hungary

Katalin CSÁSZÁR

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Ireland

Gillian KELLY

Italy

Silvia BRUNELLO and Anna PEREGO

Latvia

Linda DE KEYSER

Lithuania

Monika RUDYTE

Luxembourg Laura JACQUES and Benoit CAVEZ

Malta

Emma PSAILA

Netherlands Nienke VAN DER BURGT and Sophie VANCAUWENBERGH

Poland

Paulina ROICKA

Portugal

Gonçalo MOREIRA

Romania

Mihaela MATEI

Slovakia

Zuzana LUKACOVA

Slovenia

Neža Kogovšek ŠALAMON

Spain

Roberto VALLINA HOSET and Carmen ROMAN VACA

Sweden

Ida Otken ERIKSSON and Hanna PETTERSSON

United Kingdom Stephanie REYNOLDS

LINGUISTIC VERSIONS

Original: EN

Manuscript completed in September 2016

This document is available on the internet at:

http://www.europarl.europa.eu/supporting-analyses

DISCLAIMER

The opinions expressed in this document are the sole responsibility of the author and do

not necessarily represent the official position of the European Parliament.

Reproduction and translation for non-commercial purposes are authorised, provided the

source is acknowledged and the publisher is given prior notice and sent a copy.

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Policy Department C: Citizens' Rights and Constitutional Affairs

__________________________________________________________________________________________

CONTENTS

LIST OF ABBREVIATIONS

LIST OF TABLES

EXECUTIVE SUMMARY

1. INTRODUCTION

1.1. Legal Context

1.2. Application of Directive 2004/38 until 2008

1.3. Objective and methodology

2. OVERVIEW OF THE TRANSPOSITION OF KEY PROVISIONS OF

THE DIRECTIVE IN MEMBER STATES

2.1. Context: Difficulties in Transposition

2.2. Overview of the transposition of key provisions of the Directive

2.2.1. Analysis based on selected provisions

2.2.2. Transposition challenges regarding the selected provisions

2.2.3. Additional transposition issues in the selected Member States

2.2.4. Topical transposition issues

2.3. CJEU interpretation of the Directive

3. ANALYSIS OF THE PRIMARY BARRIERS TO THE RIGHT TO ENTRY

3.1. EU Legislation

3.2. EU citizens

3.2.1. Obligation to report their presence in the Member State within an

unreasonable period of time

3.2.2. Others

3.3. Family members of EU citizens

3.3.1. Accelerated procedure for entry visas refused

3.3.2. Excessive delays in obtaining a visa

3.3.3. Visas not issued free of charge

3.3.4. Refusal of visa on invalid grounds or without a justified reason

3.3.5. Excessive documentation required to obtain a visa

3.3.6. Scarce and confusing information regarding visas

3.3.7. Others

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

4. ANALYSIS OF THE PRIMARY BARRIERS TO THE RIGHT TO

RESIDENCE

4.1. EU Legislation

4.2. Recurring obstacles

4.2.1. Excessive delays

4.2.2. Excessive documentation requirements

4.2.3. Denial of the right of residence on invalid grounds

4.2.4. Lack of information concerning the right of residence

4.2.5. Restrictive interpretation of proof of health insurance

4.2.6. The situation of TCN family members of EU citizens

5. ANALYSIS OF THE PRIMARY BARRIERS RELATED TO SOCIAL

SECURITY

5.1. Directive 2004/38 and other EU acts

5.2. Types of benefit

5.2.1. Old age pensions

5.2.2. Health care

5.2.3. Family benefits

5.2.4. Unemployment benefits

5.3. Main types of obstacles

5.3.1. Lack of coordination and communication between national authorities of

different Member States

5.3.2. Social security contributions

5.3.3. Ignorance of the rules determining the applicable legislation

6. OTHER RECURRING BARRIERS

6.1. Accessing employment in other Member States

6.1.1. Non-recognition of professional qualifications from other Member States

6.2. Using vehicles in another Member State

6.2.1. Requirement to register vehicles in another Member State

6.2.2. Vehicle taxation for use of a foreign car

6.3. Double taxation

6.4. Administrative Services

6.4.1. Difficulties in obtaining information

6.4.2. Poor quality of the information available

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Policy Department C: Citizens' Rights and Constitutional Affairs

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6.5. Additional requirements for EU citizens seeking to register to vote/stand

as a candidate in European and municipal elections in another Member

State

6.6. Issues with the recognition of diplomas from another Member State

7. REVIEW

LEGAL

DISCRIMINATION

PRACTICAL

INSTANCES

7.1. EU non-discrimination requirements in the context of free movement 85

7.2. Discrimination on grounds of nationality

7.2.1. Discrimination on grounds of nationality in accessing employment:

7.2.2. Discrimination on grounds of nationality in accessing education

7.2.3. Discrimination due to fees/price differences and discrimination in access

to services

7.3. Discrimination on grounds of civil status/sexual orientation

7.3.1. Recognition of same-sex

partnerships in Member States’ legislation

7.3.2. Recognition of same-sex couples in a civil partnership and free

movement rights

7.3.3. Discrimination against same-sex couples in a civil partnership in

exercising their free movement and residence rights

7.4. Discrimination on grounds of racial or ethnic origin

7.4.1. Discriminatory

residence

barriers

for

Roma

exercising

their

rights

100

103

7.4.2. Roma inhibited from accessing employment in EU Member States

7.4.3. Discriminatory barriers for Roma in accessing education, housing, social

assistance and services

104

8. COMPARATIVE OVERVIEW OF MEMBER STATES MEASURES TO

COUNTER ABUSE OF RIGHTS

106

8.1.

Overview of the Directive’s requirements on measures to counter abuse

of rights

106

8.2. Comparative overview of national measures

8.2.1. Marriages of convenience

8.2.2. Fraud

8.2.3. Sanctions

109

111

112

8.2.4. Impact of these measures on the right to free movement and

residence

112

8.2.5. Implementation of these measures in practice

113

9. OVERVIEW OF THE EXTENT OF THE REFUSAL OF ENTRY AND

RESIDENCE EXPULSIONS IN MEMBER STATES

115

9.1. The Directive

115

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

9.2. Overview of existing data

9.2.1. Refusal of entry

9.2.2. Refusal of residence rights

9.2.3. Expulsions

118

119

121

9.3. Main problems identified

9.3.1. Economic grounds

9.3.2. Public policy and public security

9.3.3. Increasing level of protection

122

124

126

9.3.4. Vagueness of grounds justifying refusals of entry, residence and

expulsions

127

9.3.5. Safeguards

128

10.

11.

CONCLUSIONS

RECOMMENDATIONS

130

134

11.1.Recommendations for the European Parliament and the European

Commission

134

11.1.1. Recommendation 1: Collect more systematic

information and data at Member State level

11.1.2. Recommendation 2: Enforce full transposition

11.1.3. Recommendation 3: Clarify terms

and

comparable

134

135

11.1.4.

Recommendation 4: Address citizens’ complaints as a priority and

supplement SOLVIT with a hotline

137

11.1.5. Recommendation 5: Raising awareness about rights

137

11.2.Recommendations for Member States

138

11.2.1. Recommendation 6: Complete the transposition of Directive 2004/38/EC

138

11.2.2. Recommendation 7: Remove unnecessary barriers

11.2.3. Recommendation 8: Providing information on rights

138

11.2.4. Recommendation 9: Guidelines and training

on the Directive’s rights and

obligations

139

REFERENCES

140

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Policy Department C: Citizens' Rights and Constitutional Affairs

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LIST OF ABBREVIATIONS

Austria

Belgium

Bulgaria

CAO

Central Applications Office

CEPS

Centre for European Policy Studies

CJEU

Court of Justice of the European Union

CRDS

Contribution pour le Remboursement de la Dette Sociale

CSG

Contribution Sociale Généralisée

Cyprus

Czech Republic

Germany

Denmark

EctHR

European Court of Human Rights

Estonia

EHIC

European Health Insurance Card

Greece

ERRC

European Roma Rights Centre

Spain

European Union

Finland

France

GISTI

Groupe d’Information et de

Soutien des Immigrés

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

Croatia

Hungary

Ireland

INIS

Irish Naturalisation & Immigration Service

Italy

Lithuania

Luxembourg

Latvia

Malta

NGO

Non-Governmental Organisation

NHS

National Health Service

The Netherlands

Poland

PPS

Personal Public Service

Portugal

Royal Decree

Romania

Sweden

Slovenia

Slovakia

TCN

Third Country National

TFEU

Treaty on the Functioning of the European Union

United Kingdom

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Policy Department C: Citizens' Rights and Constitutional Affairs

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LIST OF TABLES

TABLE 1

Countries that have received a formal notice from the Commission after 2008 for

not ensuring compliance with the Free Movement Directive (2004/38/EC)

TABLE 2

Overview of the transposition of selected provisions in the nine Member

States

TABLE 3

Member States legal recognition of civil partnerships, same-sex marriage and

adoption by same-sex partners

TABLE 4

Refusal of residence rights

120

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

EXECUTIVE SUMMARY

This Study presents the main findings of the research on obstacles to the right of free

movement and residence for European Union (EU) citizens and their families. The aim of

the research was to identify the remaining transposition issues of Directive 2004/38/EC

(the Directive) and the primary barriers to free movement (including entry, residence and

access to social security), to provide an assessment of the main challenges at both EU and

national level, and to determine the extent to which these obstacles hinder citizens in

exercising their right to free movement. It also examines the existence of legal or practical

instances of discrimination, the measures to counter abuse of rights used by Member

States, and data on refusal of entry and/or residence, expulsions and the reasons for such

decisions.



Overview of the transposition of key provisions of the Directive

Transposition

selected provisions

of the Directive (Chapter 2) was examined in nine

selected Member States (i.e.

BE, DE, ES, FR, IE, IT, PL, SE, UK).

While transposition is

for the most part in line with the Directive in these Member States, challenges remain 10

years after the deadline for transposition of the Directive. Of the key provisions analysed

in the Member States,

Article 14

on the

retention of the right of residence and Article

27 on restrictions to entry and residence on grounds of public policy, security

and health

appear to be the

most problematic

with issues identified in the majority of

the nine selected Member States. For example,

Poland

has not transposed Article 14 at

all, while the transposing legislation in

Germany, France

and

Ireland

does not exclude

expulsion as an automatic consequence of recourse to the social assistance system. In

addition,

Belgium’s

transposing legislation does not require that the verification of the

conditions of residence must not be carried out systematically.

Moreover, another issue concerning transposition of the Directive relates to terms that are

broad and leave a margin of discretion to Member States to define them. One of the most

problematic terms is the concept of

‘sufficient resources’.

The Directive establishes as

a condition for residence for more than three months that EU citizens and their family

members have sufficient resources not to become a burden on the social assistance system

of the host Member State.

While the notion of ‘sufficient resources’

is recognised in the

transposing legislation of most Member States, it is not always defined (e.g.

DE, PL),

which causes difficulties with respect to entitlement to a registration certificate or

residence card. There are also some cases (FR,

IE, IT and UK)

where the definition of

‘sufficient resources’ in national legislation does not fully comply with the Directive.

The concept of

‘unreasonable

burden’,

set out in Article 14 of the Directive as a condition

for the retention of the right of residence, has also proved challenging in most Member

States. While some Member States mirror the Directive’s provision, they do not define the

concept (e.g.

BE, ES),

leaving it up to the discretion of the competent authorities. Others

transpose the concept incorrectly or interpret it narrowly. These inconsistencies have led

to expulsions on the grounds that an individual is deemed an unreasonable burden on the

social assistance system of the host Member State.

The Directive does not define clearly the concepts of

‘dependent family members’,

‘durable relationship duly attested’, ‘genuine chance of being engaged’ and

‘public security’,

leaving a wide margin of discretion to Member States.

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Policy Department C: Citizens' Rights and Constitutional Affairs

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

Analysis of the primary barriers to the right to entry

In terms of the right of

entry

(Chapter 3),

EU citizens

have experienced only a few

obstacles in exercising their entry rights within the EU. These include the

obligation to

report their presence

in the Member State within a

reasonable period of time.

Also,

in the

UK,

ID cards have been rejected and

passports

have been

required.

There is also

no appeals mechanism

against refusal of entry in

Ireland.

By contrast, family members, in particular third country national

(TCN) family members,

encounter a number of obstacles in exercising their right of entry, particularly in relation

to the

issuance of visas.

These include

excessive delays,

visas

not

being issued

free

of charge

and

refusal

of the

accelerated procedure.

Visas are also often

refused on

invalid grounds

without a justified reason.

There are often

excessive

documentation requirements

to obtain a visa and

scarce and confusing information

is available regarding visas. Immigration authorities are also unaware of Decision

565/2014 abolishing the visa requirement for TCN family members who hold a valid

residence permit issued by certain Member States (e.g.

Cyprus).



Analysis of the primary barriers to the right to residence

Moreover, EU citizens and their TCN family members have encountered a number of

obstacles in exercising their

residence

rights in the Member States (Chapter 4). For

example, they encounter a number of

bureaucratic issues

(i.e. excessive delays and

unnecessary documentation requirements) in obtaining residence cards/registration

certificates.

Another significant issue reported in a number of Member States is that

invalid grounds

are often used to

justify denials

of the right to reside. This is particularly the case for

permanent residency applications. There is also a

lack of sufficient information

available regarding the right of residence in a number of Member States. A specific issue

concerns

inadequate and contradictory information

provided by national authorities

regarding long-term resident status. In addition, some Member States adopt a

restrictive

interpretation

of the

proof of health insurance

necessary to obtain a residence card.



Analysis of the primary barriers related to social security

In terms of accessing

social security

(Chapter 5), EU citizens and their family members

have experienced numerous obstacles in accessing old age pensions, healthcare, family

benefits and unemployment benefits in the Member States. Most of the problems reported

in accessing social benefits concern

old age pensions,

chief among them are a lack of

coordination between national authorities for the calculation of the contribution periods,

imposition of a residence requirement for EU citizens and their family members in order

to be entitled to old age pensions and ignorance of the aggregation rules for old age

pensions. Other obstacles relate to problems of double-taxation of pensions and the

obligation to terminate a pension contract on departure abroad and to reimburse the state

contributions.

Obstacles regarding accessing

healthcare

include issues with the recognition and

coverage of the European Health Insurance Card (EHIC), lack of knowledge of the

applicable legal framework and difficulties in obtaining the S1 form (attesting to healthcare

entitlement) when moving to another Member State.

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

Delays, refusals to pay and other obstacles in obtaining

family benefits

have been

reported in a number of Member States. The most frequent issues are the imposition of a

residence requirement and bureaucratic problems in obtaining the necessary documents.

Substantial barriers to receiving

unemployment benefits

have also been frequently

reported.

The most widespread problem relating to access to social security is the

lack of

coordination and communication

between national authorities of different Member

States. This leads to the non-recognition of rights to which the EU citizens and their family

members are entitled under the Directive. It also leads to excessive delays in accessing

free movement rights. Issues relating to

social security contributions

centre on

difficulties in demonstrating payment of such contributions in another Member State.

Ignorance of rules determining the applicable legislation also often leads to the refusal of

social benefits.



Other recurring barriers

EU citizens and their family members experience

other recurring obstacles

(Chapter 6)

that have an impact on the exercise of their free movement and residence rights in the

Member States. These include

accessing employment, using vehicles

in another

Member State,

double taxation

of salaries and pensions,

poor administrative

services, additional requirements

for EU citizens seeking to

as a candidate

in European and municipal elections in another Member State and issues

with the

recognition of academic diplomas

from another Member State.



Review of legal or practical instances of discrimination

While the research shows some

discrimination in the exercise of free movement

rights

(Chapter 7), most issues of discrimination tend to occur after the EU citizens and

family members have entered and settled in the host Member States when accessing the

employment market or services.

Recurrent cases of

discrimination on grounds of nationality

concerning EU citizens

and their family members have been identified. These include

accessing employment,

including obstacles in accessing employment for

Romanian and Bulgarian

nationals

despite the end of the transitional measures on 1 January 2014, and

civil service

employment positions

being reserved for nationals in several Member States. In

addition, recurring issues have been reported of EU citizens and their TCN family members

being inhibited from

accessing education/schools

on grounds of their nationality, as

well as

different tuition fees

being applied to nationals and non-nationals. Other

recurring issues are

different fees

being applied to EU citizens compared to nationals

(e.g. for residence cards, car insurance premiums, etc),

banks discriminating against

non-nationals,

and

price discrimination

for EU citizens/their TCN family members for

using

public transport.

Only a limited number of complaints and petitions have been found concerning

discrimination of EU citizens and their family members on grounds of

their civil

status/sexual orientation.

However, one particular obstacle experienced is that EU

citizens’ civil partnerships are not recognised for the purposes of entry or residence in

some Member States (e.g.

and

SI)

although the Member State recognises civil

partnerships. A number of discriminatory obstacles to free movement have been

encountered by same-sex couples in registered partnerships in

Slovakia

and

Poland.

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Policy Department C: Citizens' Rights and Constitutional Affairs

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These include refusal of the right of permanent residence status, non-recognition of

residence cards issued by another Member State leading to refusal of entry, refusal to

grant a residence card or work permit, uninsured persons being excluded from the health

insurance of their partner, refusal to issue a birth certificate to children of same-sex

partners and non-eligibility for financial compensation in the case of death of one of the

partners.

Very few complaints and petitions have been made concerning EU citizens and their family

members being discriminated against on

grounds of their racial or ethnic origin

exercising their free movement and residence rights. However,

Roma

have faced

discrimination when registering in another Member State or have been barred from living

in caravans and subject to evictions, expulsions and deportations as a result. They also

experience barriers in accessing employment, education, financial services,

accommodation and social protection.



Comparative overview of Member States measures to counter abuse of

rights

All Member States have adopted measures to tackle

marriages of convenience,

and

most of them have also adopted measures to address different kinds of

fraud

aimed at

obtaining free movement rights (Chapter 8). The most common measure adopted in the

Member States tackles the issue of false information or forged documents. These measures

provide for the refusal, termination or withdrawal of any right conferred by the Directive.

In addition, abuses and fraud could lead to

fines

and

imprisonment

in a substantial

number of Member States. In certain Member States, these measures have a

negative

or disproportionate impact

on the right to free movement. Serious concerns relate to

inversion

of the

burden of proof,

when EU citizens and their spouses are required to

demonstrate that their marriage is not a marriage of convenience. Under Directive

2004/38, the burden of proof lies with the national authorities. Moreover, certain Member

States

systematically investigate

marriages between EU citizens and TCNs.



Overview of the extent of the refusal of entry and residence expulsions in

Member States

Data

concerning

refusal of entry, refusal of residence rights and expulsions

(Chapter 9) are rarely publicly available in the Member States. Moreover, national

authorities are often unwilling to provide this sort of information. The same applies to data

on the main reasons invoked by Member States to justify these decisions.

Refusals of residence and expulsions

on the basis of a

lack of sufficient economic

resources

are a recurrent issue in certain Member States. In some cases, the concerned

Member State seems not to take into account all the relevant considerations to establish

whether a person has become an unreasonable burden on the social assistance system,

potentially in violation of Directive 2004/38.

A considerable number of Member States also misapply the possible restriction on free

movement based on

public policy and public security.

In particular, certain Member

States expel EU citizens and their family members on the basis of criminal convictions

without taking into due account all the relevant circumstances of the case.

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

Not all Member States respect the

increased protection

established by the Directive for

EU citizens and family members who have resided in the host member State for more than

five or ten years. Moreover, in many Member States the grounds for refusals of entry,

residence and expulsion are not sufficiently determined by legal provisions and

administrative guidelines. This leaves the national authorities with excessive discretion

and leads to

legal uncertainty

for EU citizens and their family members.

Overall, transposition and implementation of Directive 2004/38/EC remains problematic

14 years after its adoption. While transposition is largely compliant with the Directive,

issues exist in all of the Member States analysed. The practical implementation shows a

tendency to make the most of the permitted restrictions to the rights of entry and

residence and to interpret the Directive in a restrictive manner. As a result, a careful

monitoring of the full transposition and implementation of the Directive is necessary to

guarantee free movement rights. In addition, bureaucratic barriers continue to be an

obstacle to the full enjoyment of free movement rights.



Recommendations

In terms of

recommendations

(Chapter 11) for the

European Parliament and the

European Commission,

the following have been proposed:



The European Commission should require Member States to

collect and

provide data

on the

number of refusals of entry and residence and

the number of expulsions

of EU citizens and their family members as well

as the

reasons

for the refusals and expulsions. The European Commission

should also request Member States to

regularly report information

the

implementation of the Directive.

To this end, the European

Commission should request precise and clear information on the key rights

established in the Directive, in particular regarding the points where the

most issues and barriers have been identified, but also to assess the trends

and the possible impact of recent events (the immigration crisis, terrorist

attacks, the outcome of the

referendum and its implications, new legal

or practical measures) on the implementation of the Directive.

The European Commission should

monitor closely and enforce the full

transposition of the Directive

in all the Member States. The European

Commission should

act more systematically

on Member States breaches

of the Directive. While the European Commission has initiated 29

infringement proceedings since 2008 related to various transposition issues,

the fact that transposition is still problematic in several Member States

shows that rigorous monitoring and action from the Commission is needed.

The European Commission should

update and expand its guidance for

better transposition and application of Directive 2004/38/EC

order to

include recent case-law from the CJEU

as well as

additional

clarifications on aspects of the Directive

which were not covered. The

European Commission should use the approach of the Transposition

Implementation Plans (TIPS) to ensure the complete and proper application

of the Directive, in particular with the support of interpretative transposition

guidelines and a transposition checklist.

The European Parliament Petitions Committee should

continue to monitor

closely petitions

in relation to free movement rights and work

in close



EUU, Alm.del - 2018-19 (1. samling) - Bilag 660: Brev til beskæftigelseskommissær Marianne Thyssen om effektiv håndhævelse og implementering af EU-reglerne

Policy Department C: Citizens' Rights and Constitutional Affairs

__________________________________________________________________________________________

collaboration with the European Commission to address the

petitions.

It is crucial that

complaints

received within the SOLVIT system

are dealt with

effectively and rapidly.

Therefore, the

SOLVIT service

should be supplemented with a

hotline

that would allow EU citizens and

their family members to receive timely information and support when they

face barriers to the exercise of their free movement rights.



The European Parliament and the European Commission should

increase

their

efforts at raising awareness

among EU citizens and their family

members of their free movement rights.

In terms of

recommendations

for

Member States,

the following have been proposed:



Member States must take, without delay, the

necessary action

to ensure

that their

national legislation reflects all of the requirements of the

Directive.

Member States should ensure the

removal of unnecessary barriers

the rights of

entry and residence

in particular the requirement to report

one’s presence in another Member State upon arrival and the administrative

requirements at the borders of EU and non-EU Member States. Member

States should also ensure the provision of an accelerated procedure for the

entry of TCN family members and the establishment of an appeal system

against refusals of entry/residence and any discriminatory practices on their

territory.

Member States should ensure that

national authorities provide clear

and sufficient information

regarding

visa requirements

and

residence

rights

for TCN family members.

Member States should ensure the

proper training of relevant staff

regarding

the correct application

the Directive.

Member States should

also ensure that the

Directive’s requirements

are

sufficiently defined

in national legislation

and, if needed,

supplemented by adequate

administrative guidelines

in order for national authorities to have clear

instructions on the application of the Directive.



EUU, Alm.del - 2018-19 (1. samling) - Bilag 660: Brev til beskæftigelseskommissær Marianne Thyssen om effektiv håndhævelse og implementering af EU-reglerne

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

INTRODUCTION

1.1.

Legal Context

From the outset, the European Community set itself the objective, inter alia, of abolishing

obstacles to the freedom of movement of persons

. These free movement rights were

originally conceived for the sole purpose of enhancing economic integration and were,

therefore, confined to those persons engaged in economic activity as workers and self-

employed persons, as well as those giving or receiving services.

The EU competence to legislate on the free movement of persons has evolved overtime as

reflected in subsequent Treaties. The Maastricht Treaty constituted a turning point by

explicitly introducing the concept of Union citizenship, together with a number of

associated rights, such as the right to move and reside freely in all Member States

In 2009, the Lisbon Treaty recognised the free movement of persons among the objectives

of the European Union

Article 21

of the Treaty on the Functioning of the European Union

(TFEU) establishes that every citizen of the Union has

the right to move and reside

freely

within the territory of the Member States, subject to the limitations and conditions

laid down in the Treaties and to the measures adopted to give effect to that right.

Moreover, Article 45 of the

Charter of Fundamental Rights of the European Union

(the Charter) also guarantees the right of every EU citizen to move and reside freely within

the territory of the Member States. The Charter is legally binding and applicable to the EU

since the Lisbon Treaty entered into force in 2009.

The right for a person to exercise free movement is central to

EU citizenship

and

complements the other freedoms of the EU internal market, i.e. freedom of movement for

workers

, services

, capital

and freedom of establishment

. In addition, as people can

move freely between Member States, the principle of non-discrimination on the basis of

nationality

, sex, racial or ethnic origin, religion or belief, disability, age or sexual

orientation

forms a crucial component of freedom of movement.

In parallel with the evolution of EU competence, free movement rights have been extended

through legislation and case law to encompass not only workers, but all categories of

citizens. The following Directives were adopted in 1990:

Council Directive

90/365/EEC

on the right of residence for employees and self-employed persons who

have ceased their occupational activity,

Council Directive 90/366/EEC

on the right of

Article 3(1)(c) of the Treaty establishing the European Economic Community, EEC Treaty, signed in Rome in

1957 and entered into force on 1 January 1958.

Treaty on the European Union, signed in Maastricht in 1992 and entered into force on 1 November 1993.

Article 3 of the Treaty on the European Union, consolidated version, OJ C 326, 26.10.2012, p. 13.

Articles 20 and 21 of the TFEU, introduced by the Treaty establishing the European Community (Nice

consolidated version

– ‘Treaty of Nice’), signed in

Nice in 2001 and entered into force on 1 February 2003.

Article 45 of the TFEU, introduced by the Treaty of Nice.

Article 56 of the TFEU, introduced by the Treaty of Nice.

Article 63 of the TFEU, introduced by the Treaty of Nice.

Article 49 of the TFEU, introduced by the Treaty of Nice.

Article 18 of the TFEU.

Article 19 of the TFEU.

Council Directive 90/365/EEC of 28 June 1990 on the right of residence for employees and self-employed

persons who have ceased their occupational activity, OJ L 180, 13.7.1990, p. 28.

Council Directive 90/366/EEC of 28 June 1990 on the right of residence for students, OJ L 180, 13.7.1990, p.

30.

EUU, Alm.del - 2018-19 (1. samling) - Bilag 660: Brev til beskæftigelseskommissær Marianne Thyssen om effektiv håndhævelse og implementering af EU-reglerne

Policy Department C: Citizens' Rights and Constitutional Affairs

__________________________________________________________________________________________

residence for students, and

Council Directive 90/364/EEC

on the right of residence

for nationals of Member States who do not hold this right under other provisions of

Community law, together with the members of their families.

Directive 2004/38/EC

was subsequently adopted to take account of the large body of

case law linked to the free movement of persons and to integrate the fragmented approach

of the previous Directives. The provisions of this Directive establish the right of entry and

residence in the EU Member States for EU citizens and their family members as well as

providing some safeguards against refusals of residence and expulsions.

While the Directive drew extensively from previous legislation, it introduced the following

innovations:



The extension of EU citizens’ family reunification rights to include

the

registered

partner

where the host Member State treats registered partners as equivalent to

spouses



New rights for family members in the event of

death or departure of the EU

citizen

or the dissolution of the marriage or registered partnership

The right of EU citizens and their families to reside for a

period of up to three

months

without any conditions or formalities other than the requirement to hold a

valid identity card or passport

For periods of residence of

more than three months,

EU citizens no longer need

to obtain a residence permit in the Member State of residence

A right of

permanent residence

after five years of continued legal residence in

the host Member State

Limited possibility for Member States to

end the right of residence

of EU citizens

and their families on grounds of non-compliance with residence conditions and on

grounds of public policy, public security and public health

. It explicitly states that

expulsion must not be the automatic consequence of recourse to social assistance

in the host Member State

Limited possibility for

expulsion on grounds of public policy and public

security

of EU citizens and their families who have acquired a right of permanent

residence; limited possibility for expulsion of EU citizens who have resided in a

Member State for the previous 10 years, or who are minor children, to cases based

on imperative grounds of public security

Reinforcement of the existing procedural

guarantees against expulsion,

including their extension to cases of expulsion on grounds of non-compliance with

residence conditions



Council Directive 90/364/EEC of 28 June 1990 on the right of residence, OJ L 180, 13.7.1990, p. 26.

Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens

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

amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC,

73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (Text with EEA relevance), OJ L

158, 30.4.2004, p. 77.

Article 2(2)(b) of Directive 2004/38/EC.

Articles 12-14 of Directive 2004/38/EC.

Article 6 of Directive 2004/38/EC.

Article 7 of Directive 2004/38/EC.

Article 16 of Directive 2004/38/EC.

Article 27 of Directive 2004/38/EC.

Article 14 of Directive 2004/38/EC.

Article 28 of Directive 2004/38/EC.

Article 31 of Directive 2004/38/EC.

EUU, Alm.del - 2018-19 (1. samling) - Bilag 660: Brev til beskæftigelseskommissær Marianne Thyssen om effektiv håndhævelse og implementering af EU-reglerne

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

Directive 2004/38/EC

interacts

with other EU acts intended to regulate specific aspects

of the free movement of persons, often related to the internal market. Specific rules

governing freedom of movement for workers are contained in

Regulation (EU) No

492/2011

on freedom of movement for workers within the Union. Relevant rules are

also contained in

Regulation (EC) No 883/2004

on the coordination of social security

systems and its implementing

Regulation (EC) No 987/2009

; Directive

2014/50/EU

on minimum requirements for enhancing worker mobility between

Member States by improving the acquisition and preservation of supplementary pension

rights; and

Directive 2014/54/EU

on measures facilitating the exercise of rights

conferred on workers in the context of freedom of movement for workers. These rules do

not apply to posted workers, who are not themselves exercising their free movement rights

and are instead protected by the Posting of Workers Directive (Directive

96/71/EC

Finally, in order to reside legally in another EU Member State, any EU citizen should be

able to practise his/her profession freely there. This requires the recognition of professional

qualifications obtained in other Member States.

Directive 2005/36/EC

(as revised by

Directive 2013/55/EU

) on the recognition of professional qualifications consolidates

and updates the previous Directives covering recognition rules. It thereby complements

Directive 2004/38/EC.

1.2.

Application of Directive 2004/38 until 2008

Directive 2004/38 was adopted on 29 April 2004 entering into force on 30 April 2004, day

of its publication in the Official Journal of the European Union. The deadline for its

transposition was set for 30 April 2006, two years after its entry into force

In 2008, the Commission published a

report

on the application of Directive 2004/38/EC

In this Report, the Commission reported initiating

infringement proceedings

against 19

Member States

between June 2006 and February 2007 for their failure to communicate

the text of the provisions of national law adopted to transpose the Directive. However, by

Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of

movement for workers within the Union (Text with EEA relevance, OJ L 141, 27.5.2011, p. 1.

Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the

coordination of social security systems, OJ L 166, 30.4.2004, p.1.

Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying

down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems

(Text with relevance for the EEA and for Switzerland), OJ L 284, 30.10.2009, p. 1.

Directive 2014/50/EU of the European Parliament and of the Council of 16 April 2014 on minimum requirements

for enhancing worker mobility between Member States by improving the acquisition and preservation of

supplementary pension rights (Text with EEA relevance), OJ L 128, 30.4.2014, p. 1.

Directive 2014/54/EU of the European Parliament and of the Council of 16 April 2014 on measures facilitating

the exercise of rights conferred on workers in the context of freedom of movement for workers (Text with EEA

relevance), OJ L 128, 30.4.2014, p. 8.

Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting

of workers in the framework of the provision of services, OJ L 18, 21.1.1997, p. 1.

Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition

of professional qualifications (Text with EEA relevance), OJ L 255, 30.9.2005, p. 22.

Directive 2013/55/EU of the European Parliament and of the Council of 20 November 2013 amending Directive

2005/36/EC on the recognition of professional qualifications; Regulation (EU) No 1024/2012 on administrative

cooperation through the Internal Market

Information System (‘the IMI Regulation’)(Text with EEA relevance), OJ

L 354, 28.12.2013, p. 132.

Article 40 of Directive 2004/38.

European Commission, ‘Report from the Commission to the European Parliament and the Council on the

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’,Brussels, 10.12.2008 COM(2008) 840 final, available at:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0840:FIN:en:PDF.

All Member States except Denmark, Ireland, Netherlands, Austria, Slovenia, Slovakia, Bulgaria and Romania.

EUU, Alm.del - 2018-19 (1. samling) - Bilag 660: Brev til beskæftigelseskommissær Marianne Thyssen om effektiv håndhævelse og implementering af EU-reglerne

Policy Department C: Citizens' Rights and Constitutional Affairs

__________________________________________________________________________________________

the time of publication of the Commission Report, all Member States had adopted

transposition measures and the infringement proceedings for non-communication were

closed. Despite this, the Commission found the overall transposition of Directive

2004/38/EC to be

rather disappointing:

‘Not one Member State has transposed the

Directive effectively and correctly in its entirety. Not one Article of the Directive has been

transposed effectively and correctly by all Member States’

. Considerable parts of the

Directive, along with crucial provisions, had been incorrectly transposed in most Member

States.

With respect to the practical application of the Directive, the Commission reported that, in

the 30 months in which the Directive had been applicable, it had received more than 1,800

individual complaints, 40 questions from the Parliament and 33 petitions on its application.

It had registered 115 complaints and opened five infringement cases for incorrect

application of the Directive. Persistent violation of the core rights of EU citizens related

mostly to the right of entry and residence of third country family members (e.g. problems

with entry visas or when crossing the border, additional conditions attached to the right

of residence, and delays in issuing residence cards), as well as to the requirement for EU

citizens to submit additional documents to those specified in the Directive in their residence

applications. In 2013, the Commission reported having opened further infringement

proceedings in 2011 against 12 Member States. In 2012, it sent reasoned opinions to the

relevant Member States in seven of these 12 cases

. Since 2013 the Commission closed

four infringement procedures relating to Directive 2004/38 and sent two reasoned

opinions

Following its 2008 Report, the Commission published a set of

guidelines

in 2009 to assist

Member States in the transposition of the Directive

Also in 2009, the Parliament commissioned a

comparative study

on the application of

Directive 2004/38/EC

. The study covered the period between June 2008 and February

2009 and focused on 10 Member States

in depth, selected for being representative of

the problems in implementing the Directive, as well as for their significant migration flows

and to achieve a reasonable geographical balance within EU-27. The study concluded that

the Commission should have taken a more proactive approach to ensure the correct

application of the Directive. At the same time, the Commission appeared to have taken

effective measures particularly with regard to the situation of the Roma and the security

European Commission, ‘Report

from the Commission to the European Parliament and the Council on the

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’,Brussels, 10.12.2008

COM(2008) 840 final, available at:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0840:FIN:en:PDF, p. 3.

European Commission, Report from the Commission to the European Parliament, the Council, the European

Economic and Social Committee and the Committee of the Regions under Article 25 of the TFEU on progress

towards effective EU Citizenship 2011-2013, 8.5.2013, COM(2013) 270 final, available at:

http://ec.europa.eu/justice/citizen/files/com_2013_270_en.pdf.

European

Commission,

database

infringement

procedures

available

at:

http://ec.europa.eu/atwork/applying-eu-law/infringements-

proceedings/infringement_decisions/index.cfm?lang_code=EN&r_dossier=&decision_date_from=&decision_dat

e_to=&DG=JUST&title=Directive+2004%2F38&submit=Search.

European Commission, ‘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’, 2.7.2009,

COM(2009) 313 final, available at:

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:52009DC0313.

European Parliament, ‘Comparative study on the 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’,

2009,

410.650,

available

at:

http://www.europarl.europa.eu/RegData/etudes/

etudes/join/2009/410650/IPOL-JURI_ET(2009)410650_EN.pdf

Belgium, Estonia, France, Greece, Hungary, Ireland, Italy, Romania, Sweden and the UK.

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

package (‘Pacchetto sicurezza’) in

Italy

and the denial of sickness cover to British

residents in France

The Parliament

and the Commission

recognised that action was needed to address the

issues raised by the right to entry and residence of third country family members and the

excessive requirements for EU citizens in applying for residence, and they committed to

monitoring Member States’ implementation

of the Directive.

Finally, in 2013, the Commission published a Communication on the five priority actions

in the field of free movement

: helping Member States to combat marriages of

convenience; helping authorities to apply EU social security coordination rules; helping

authorities to meet social inclusion challenges; addressing the needs of local authorities

by promoting the exchange of best practice; helping local authorities to apply EU free

movement rules in practice. As part of its commitment, in 2014 the Commission issued a

handbook to help national authorities to fight abuse of the right to free movement

1.3.

Objective and methodology

This Study presents the main findings of the research on obstacles to the right of free

movement and residence for EU citizens and their families which was commissioned by

the European Parliament’s Policy Department for Citizens’ Rights and Constitutional

Affairs

at the request of the LIBE and PETI Committees. The aim of the research was to identify

the remaining transposition issues of Directive 2004/38/EC and the primary barriers to

free movement, including, for example, entry, residence and access to social security

systems, to provide an assessment of the main challenges at both EU and national level,

and to determine the extent to which these obstacles hinder citizens in exercising their

right to free movement. It also sets out to examine the existence of legal or practical

instances of discrimination, the measures to counter abuse of rights used by Member

States, and the data on refusal of entry and/or residence, expulsions and the reasons for

such decisions.

The scope covers both the transposition and the practical implementation of selected

provisions of Directive 2004/38/EC, in particular the changes since the 2008 Commission

report and 2009 Study commissioned by the Parliament. Since the Study focused on key

European Parliament, ‘Comparative study

on the 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’,

http://www.europarl.europa.eu/RegData/

2009,

410.650,

available

at:

etudes/etudes/join/2009/410650/IPOL-JURI_ET(2009)410650_EN.pdf,

p.16-17.

European Parliament, ‘Report on the 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’, 23.3.2009,

(2008/2184(INI)),

available

at:

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-

//EP//NONSGML+REPORT+A6-2009-0186+0+DOC+PDF+V0//EN.

European Commission, ‘Report from

the Commission to the European Parliament and the Council on the

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’,Brussels, 10.12.2008

COM(2008) 840 final, available at:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0840:FIN:en:PDF

European Commission, ‘Communication from the

Commission to the European Parliament and the Council, the

European Economic and Social Committee and the Committee of the Regions - Free movement of EU citizens

and their families: Five actions to make a difference’, 25.11.2013, COM (2013) 837 final, available

at:

http://eur-

lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52013DC0837&from=EN.

European Commission, ‘Communication from the Commission to the European

Parliament and the Council

helping national authorities fight abuses of the right to free movement: Handbook on addressing the issue of

alleged marriages of convenience between EU citizens and non-EU nationals in the context of EU law on free

movement

of EU citizens’, 26.9.2014, COM(2014) 604 final, available at:

http://eur-lex.europa.eu/legal-

content/EN/TXT/PDF/?uri=CELEX:52014DC0604&from=EN.

EUU, Alm.del - 2018-19 (1. samling) - Bilag 660: Brev til beskæftigelseskommissær Marianne Thyssen om effektiv håndhævelse og implementering af EU-reglerne

Policy Department C: Citizens' Rights and Constitutional Affairs

__________________________________________________________________________________________

aspects of the Directive’s rights, it does

not provide or aim to provide a full assessment of

the transposition of the Directive.

The analysis at national level focused in particular on nine Member States. The Member

States selected for closer analysis were defined in agreement with the European

Parliament

Policy Department for Citizens’ Rights and Constitutional Affairs during the

inception phase:

BE, DE, ES, FR, IE, IT, PL, SE

and the

UK.

The selection was based on

several agreed criteria such as keeping a geographic balance across the EU, with big and

small Member States, the large amount of EU citizens and their TCN family members

moving to (e.g.

BE, IE, the UK)

and moving from some of these Member States (e.g.

PL),

and the known problems regarding the exercise of free movement and residence

rights that were already highlighted in some Member States (e.g.

SE)

in the Commission

2008 report and the 2009 study commissioned by the European Parliament. Detailed

country reports were developed for each of these countries and these are publicly

available. The assessment of the remaining 18 Member States was based on targeted

questionnaires, following a similar structure and scope as the selected country reports,

with the aim of obtaining an overview on recurring barriers to free movement.

A key methodological approach in this project was the use of highly qualified national

experts to carry out the in-depth analysis of the nine selected Member States. This ensured

a high degree of accuracy, as the experts not only provided their technical knowledge but

also their awareness of the national context. National experts were also used for the

assessment of the situation in the other 18 Member States.

In order to ensure a harmonised approach to the country analysis and facilitate comparable

information, experts were provided with a template and detailed guidelines describing the

method for the in-depth analysis of the situation in the Member States. In addition, the

core team carried out a first coordinated literature review in order to identify relevant

sources of information at EU and national level to be used by the national experts. The

sources of information used include EU sources, such as the 2008 Commission report

the 2009 Study commissioned by the European Parliament

, the Centre for European

Policy Studies’ (CEPS) 2009 Report on the implementation of Directive 2004/38/EC

petitions submitted to the European Parliament from 2012 to 2014, together with the Your

Europe Advice Quarterly Reports covering the period between 2012 and 2015. Experts

were also provided with relevant case law from the Court of Justice of the European Union

(CJEU) and the European Court of Human Rights (ECtHR). A second literature review by

each national expert ensured that the data and information in each Member State was

fully updated.

Where needed, interviews with national competent authorities, NGOs, equality bodies

and/or experts were carried out in order to obtain specific data or information on the main

challenges faced during the practical implementation of the legislation.

European

Commission, ‘Report from the Commission to the European Parliament and the Council on the

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’,Brussels, 10.12.2008 COM(2008) 840 final, available at:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0840:FIN:en:PDF,

p. 4.

European Parliament,

‘Comparative study on the 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’,

2009,

410.650,

available

at:

http://www.europarl.europa.eu/RegData/

etudes/etudes/join/2009/410650/IPOL-JURI_ET(2009)410650_EN.pdf.

Carrera, S. and Faurer Atger, A., Implementation of Directive 2004/38 in the context of EU enlargement, April

2009, Centre for European Policy Studies, Brussels, 2009, available at:

http://aei.pitt.edu/10758/1/1827.pdf.

EUU, Alm.del - 2018-19 (1. samling) - Bilag 660: Brev til beskæftigelseskommissær Marianne Thyssen om effektiv håndhævelse og implementering af EU-reglerne

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

The main challenge identified during the course of the project relates to the scarce

availability of data. Member States do not gather information on the implementation of

the right to entry or residence in a systematic way, differentiating type of citizens and the

motivation behind each case’s

decision.

Some Member States make publicly available

statistical data or information on certain aspects while in others the publicly available data

or information is very scarce. In addition, the project did not aim at systematically

gathering all the information available on each specific issue but to raise examples that

would be representative of the situation, challenges or best practices related to free

movement in each country. On that basis, the examples mentioned do not respond to a

systematic approach both due to the scope and method of the project and to the scarcity

of the information in most Member States.

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Policy Department C: Citizens' Rights and Constitutional Affairs

__________________________________________________________________________________________

OVERVIEW

THE

TRANSPOSITION

KEY

PROVISIONS OF THE DIRECTIVE IN MEMBER STATES

KEY FINDINGS



While transposition is

for the most part in line

with the Directive,

challenges

remain,

10 years after the deadline for transposition of the Directive. Transposition

issues have been identified for all the 10 selected provisions except for Article 28

concerning protection against expulsion.

Out of the key provisions analysed,

Article 14

on the

retention of the right of

residence

appears to be the

most problematic

with issues in the majority of the

nine selected Member States. For example,

Poland

has not transposed this

provision. The transposing legislation in

Germany, France

and

Ireland

do not

exclude expulsion as an automatic consequence of recourse to the social assistance

system.

Belgium’s

transposing legislation does not require that the verification of

the conditions of residence must not be carried out systematically.

The Directive includes broad terms which leave a margin of discretion to Member

States to define them further, which can lead to interpretation against the spirit of

the Directive. One of the most problematic terms is the concept of

‘sufficient

resources’.

While the concept of ‘sufficient

resources’

is recognised in the

transposing legislation of most Member States, it is not always defined (e.g.

DE,

PL),

which causes difficulties with respect to entitlement to a registration certificate

or residence card. In those Member States where the concept is defined there are

some cases (FR,

IE, IT and UK)

where the definition of

‘sufficient resources’ in

national legislation does not fully comply with the Directive.

The concept of

unreasonable burden,

set out in Article 14 of the Directive as a

condition for the retention of the right of residence, has proved challenging in most

Member

States. While some Member States mirror the Directive’s provision, they

do not define the concept (e.g.

BE, ES),

leaving it up to the discretion of the

competent authorities. Others transpose the concept incorrectly or limit its

interpretation. These inconsistencies have led to expulsions on the grounds that an

individual is deemed an unreasonable burden on the social assistance system of

the host Member State.



2.1.

Context: Difficulties in Transposition

The transposition of all provisions of Directive 2004/38/EC has proved challenging, as

recognised by the 2008 Commission Report, which stated that no single Article of the

Directive had been fully transposed by all Member States, and announced infringement

proceedings against most Member States under Article 258 TFEU

. A year later, the Study

commissioned by the European Parliament confirmed this disappointing situation.

Since 2008, the European Commission has initiated a number of

infringement

proceedings

for non-compliance with the Directive

. The table below shows an overview

All Member States except Denmark, Ireland, the Netherlands, Austria, Slovenia, Slovakia, Bulgaria and

Romania.

The procedure starts when the Commission sends a ‘Formal Notice’ asking for information to the non-complying

Member States to be answered during a specified period of time (usually two months). If the Member States do

not provide a justified answer, the Commission sends a formal request to comply (Reasoned Opinion). If the

Member States fail to ensure compliance after the second request, the case is transferred to the CJEU. For more

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

of the number of Member States that have received a formal notice for not ensuring

compliance with the Directive. The table illustrates, that the European Commission

launched infringement proceedings against

13 Member States

(BE,

CZ, DE, ES, IT, CY,

LT, HU, MT, AT, PL, SE, UK)

for not complying with the Directive. For instance, the table

displays the incorrect transposition of the Directive with regard to the rights to move and

reside freely (i.e. problems with registration certificates, residence cards and permits) in

BE, CZ, DE, CY, HU, AT, SE, UK.

The Commission also brought cases concerning

discrimination regarding labour market access in

and

the UK.

Furthermore,

and

did not protect EU citizens against unfair expulsions. According to the information reported

by the European Commission, these cases were closed in only four Member States (ES,

IT, CY

and

MT)

while in the remaining countries the Commission sent a sent a second

request (Reasoned Opinion) to comply

Table 1: Countries that have received a formal notice from the Commission after

2008 for not ensuring compliance with the Free Movement Directive

(2004/38/EC)

Infringement

Number

Transposition issues

Rights to move and reside freely + safeguards

against expulsions: BE does not facilitate the

entry and residence of TCN family members of

Union Citizens (Visa and residence cards).

Belgium has not transposed the procedural

safeguards against the expulsion of EU citizens

who have recourse to the Belgium Social

Assistance system.

Rights to move and reside freely: CZ obliges EU

citizens and family members to present a

certificate of accommodation with their

applications for residence documents.

Rights to move and reside freely: DE does not

have a procedure to facilitate the entry and

residence for extended family members of EU

nationals. DE has not adopted any legislation to

ensure that extended family members are

granted the full set of rights established by the

Directive (i.e. registration certificates, residence

cards).

No clear information: "Regarding unresolved

problems with the remaining Member States,

infringement proceedings were launched over

the period from March to June 2011 against

Austria, Cyprus, Czech Republic, Germany,

Malta, Lithuania, Spain, Sweden, Poland and the

United Kingdom".

Discrimination regarding access to the labour

market: For instance, legislation in the province

of Bolzano provides

that job candidates’

who are

resident for at least two years have preference

over other candidates in accessing the labour

market in the public sector.

Decision Type (a)

20112033

20112077

Formal Notice

(June 2011) /

Reasoned Opinion

(February 2013)

Formal Notice

(June 2011) /

Reasoned Opinion

(January 2012)

20112086

Formal Notice

(June 2011) /

Reasoned Opinion

(June 2012)

20112035

Formal Notice

(March 2011) /

Closing of the case

(April 2013)

20112053

Formal Notice

(October 2011) /

Closing Case:

December 2013

information see European Commission,

‘Infringements: Frequently Asked question’, Base de donnés des

communiqués de presse, Strasbourg 17 January 2012.

The period between the first and second request (formal notice vs reasoned opinion) is on average one year

or more.

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Policy Department C: Citizens' Rights and Constitutional Affairs

__________________________________________________________________________________________

Rights to move and reside freely: establishes

fines of up to

€1

000 for EU citizens staying in

the country for longer than 21 days without

reporting their presence within 35 days of their

arrival. In addition, there are excessive delays

in issuing residence cards for family members.

20112064

20112083

20106001

20112032

20112034

20112074

20112060

20112054

Safeguards against expulsions: Legislation does

not ensure that national authorities may only

expel those citizens who are a real and present

danger to society.

Rights to move and reside freely: HU argues

that Slovakia infringed European law by

refusing the entry of the Hungarian president in

Slovakia in August 2009.

No clear information: "Regarding unresolved

problems with the remaining Member States,

infringement proceedings were launched over

the period from March to June 2011 against

Austria, Cyprus, Czech Republic, Germany,

Malta, Lithuania, Spain, Sweden, Poland and the

United Kingdom".

Rights to move and reside freely: AT law does

not grant extended family members with a

"residence card for EU family members" but

with a residence permit valid only for 1 year and

not for the envisaged period of residence of the

Union citizen (if it is < 5 years). They also need

to apply for a specific work permit.

No clear information: "Regarding unresolved

problems with the remaining Member States,

infringement proceedings were launched over

the period from March to June 2011 against

Austria, Cyprus, Czech Republic, Germany,

Malta, Lithuania, Spain, Sweden, Poland and the

United Kingdom".

Rights to move and reside freely: SE does not

provide a formal procedure to facilitate entry

and residence rights for extended family

members

(i.e.

registration

certificates,

residence cards, the high cost of visas).

Furthermore, according to Swedish law, the

rejection of registration applications cannot be

appealed.

Rights to move and reside freely +

discrimination regarding access to the labour

market: the UK does not allow extended family

members to apply for their residence in the UK

before the arrival of the EU citizen. In addition,

during the first year, the UK does not issue

workers from Romania and Bulgaria with the

same documents as workers from other EU

Member States.

Formal Notice (May

2011) / Closing of

the case (July

2014)

Formal Notice

(June 2011) /

Reasoned Opinion

(January 2012) /

Additional

Reasoned Opinion

(May 2013)

Reasoned Opinion

(October 2011)

Formal Notice

(March 2011) /

Closing of the case

(January 2013)

Formal Notice

(June 2011) /

Reasoned Opinion

(June 2012)

Formal Notice

(March 2011)

Formal Notice (May

2011) / Additional

formal notice

(September 2011)

/ Reasoned opinion

(June 2012)

Formal notice

(June 2011) /

Reasoned Opinion

(April 2012)

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

The freedom of movement of people within the internal market has been recognised in the

EU Treaties as a fundamental freedom of the EU since 1968. The Charter of Fundamental

Rights changed the approach to free movement, with Article 45 recognising it as a right

of all EU citizens and not only EU workers, as was the case under the EC Treaty. EU citizens

therefore have the right to move and establish their residence freely within the territory

of the EU. Directive 2004/38/EC sets out the framework for the implementation of this

right, establishing the limitations and conditions according to the Treaty and case law. The

Directive’s provisions are therefore applicable to EU citizens and their family members

from both EU and TCN countries, enabling them to travel and reside in an EU Member

State which is not their country of origin. This change is the likely cause of the difficulties

in the transposition and implementation of Directive 2004/38/EC.

Recent developments highlight the importance of this Directive. The

‘intergovernmental’

negotiations and agreement between the European Council and the UK government before

the UK referendum focused on the possible introduction of restrictive changes to the free

movement regime in the EU. This agreement ‘fell’

and will not be implemented following

the referendum results, but the EU and the UK will have to negotiate the UK exit from the

EU and the status of UK citizens in other MSs and vice-versa. The EU could also decide to

take this occasion to strengthen the fundamental right free movement of persons in the

EU, which is one of the main pillars of the EU and cherished by citizens. A clear framework

in Member States which is properly enforced is more necessary than ever in order to

ensure that all citizens’ rights are properly

transposed into national legislation and

therefore, properly implemented.

2.2.

Overview of the transposition of key provisions of the

Directive

This section reviews in detail the transposition status of selected provisions in the nine

selected Member States. Section 2.2.1 reviews the selected provisions, while section 2.2.2

provides an overview of the current transposition status of those selected provisions.

Additionally, the transposition analysis looked at issues of transposition flagged by the

2008 Commission report and the 2009 Study commissioned by the European Parliament

(in section 2.2.3). Those vary from one Member States to another and therefore do not

allow for a comparative overview.

Lastly, this section will then discuss terms of the Directive that are particularly problematic

in Member States, including the notions of ‘sufficient resources’ and of ‘unreasonable

burden on the social

security system’ (in section 2.2.4).

2.2.1.

Analysis based on selected provisions

The purpose of this section is to provide an overview of the transposition of

selected

provisions

of Directive 2004/38/EC, updating the information presented in the 2008

Commission Report and the 2009 study commissioned by the European Parliament. It

focuses on nine Member States, namely

BE, DE, ES, FR, IE, IT, PL, SE

and the

UK.

The Directive requires the transposition of the right of entry, the right of residence for up

to three months, the right of residence for more than three months, the retention of the

right of residence, right of permanent residence and the grounds for restriction of the

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Policy Department C: Citizens' Rights and Constitutional Affairs

__________________________________________________________________________________________

rights of entry and residence.

Key articles

identified as the focus of the analysis of the

transposition are:



Article 3(2):

This provision refers to the persons who can benefit from the rights set

out in the Directive. The second paragraph deals with the conditions in law or practice

for

family members

(especially

third country family members)

to exercise their

free movement and residence rights. In particular, Member States are required to

facilitate their entry and residence. Incorrect transposition of this provision could result

in specific conditions not provided in the Directive for TCN family members to obtain

the right of residence

In addition, the provision deals with the approach of Member States towards

partners

of EU citizens,

in particular

same-sex partners

of EU citizens (be them spouses or

in a civil partnership). This is especially relevant with regard to the interpretation and

application of the requirements of ‘a durable relationship, duly attested’, and the notion

that Member

State authorities ‘shall undertake an extensive examination of the

personal circumstances’.

The host Member State is also required to undertake an

extensive examination of the personal circumstances of the people asking for entry

and to justify any denial of entry or residence to these potential beneficiaries.



Article 5(1)(2):

According to this provision, Member States must allow EU citizens

and their family members to

enter their territory

with a valid identity card. The

transposition analysis examines whether or not Member States have introduced

facilities in their legislation for family members to

acquire an entry visa

in line with

the Directive, and whether any distinction has been made between TCN family

members of EU citizens and TCNs in obtaining such a visa.

Article 6:

It provides for the right of

residence for up to three months

for EU

citizens and their family members. The transposition analysis looks at whether or not

Member States include additional formalities for EU citizens or their family members

to obtain the right of residence that may be contrary to the Directive.

Article 7(1)(2):

This provision deals with the right of

residence for more than

three months.

Similar to the short-term residence rights, the analysis of this provision

reviews whether or not Member States include additional requirements for EU citizens

or their family members to obtain the right of residence that may be contrary to the

Directive

Article 14:

This Article provides the requirements for the

retention of residence

rights,

including in cases of recourse to the social assistance system. The transposition

assessment particularly looks at Member States’ interpretation of ‘being an

unreasonable burden on the social assistance system’

and whether this is in line

with the Directive. The analysis includes whether or not Member States allow for the

expulsion of family members on grounds of being an unreasonable burden on the social

assistance system.

Article 16:

This provision sets out the rules for the right to

permanent residence.

The analysis examines whether Member States attach conditions to the right of

permanent residence after five years that may go beyond the Directive.

e.g. the requirement to have previously been a legal resident in another Member State.

e.g. the requirement to have satisfactory accommodation.



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__________________________________________________________________________________________



Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

Article 24(1):

This provision establishes the right to

equal treatment

between EU

citizens and their family members and host Member State nationals. The analysis

assesses whether the provision is correctly transposed in the Member States,

particularly regarding the possibility set out in the Directive to limit the access to social

assistance after the first three months of residence.

Article 27:

This provision enables Member States to take measures limiting the

freedom of movement (including expulsion) of EU citizens and their family members

on grounds of

public policy, public security or public health.

The review of

transposition aimed to analyse whether these grounds may be invoked to serve

economic objectives, which is specifically prohibited by this provision. Furthermore,

the transposition measures should ensure that decisions on grounds of public policy or

public security comply with the principle of proportionality.

Article 28:

This provision provides

exceptions and safeguards against expulsion.

A correct transposition needs, among others, to guarantee that personal circumstances

are assessed when taking such a decision.

Article 35:

It enables Member States to adopt

measures against abuse of rights,

including refusal and withdrawal of residence rights. Correct transposition ensures that

the proportionality principle and procedural safeguards are in place.

In addition, the notion of

sufficient resources

set out in

Article 8

has been assessed.

This article enables Member States to require EU citizens staying for periods of

residence longer than three months to register with the relevant authorities and comply

with certain conditions such as presenting a valid identity card or passport, a

confirmation of engagement from an employer or an employment contract. In this

sense, the transposition of the notion of ‘sufficient resources’ is critical.



If additional provisions have been identified as presenting transposition problems in the

Member States, those were also analysed.

2.2.2.

Transposition challenges regarding the selected provisions

The analysis of the nine selected Member States demonstrates that, while the transposition

for the most part in line

with the Directive,

challenges still remain,

10 years after

the deadline for transposition of the Directive. The table below shows the provisions

assessed as fully transposed with a ‘Yes’ and, where a transposition issue has been

identified (whether small or important), it has been marked as ‘No’.

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Policy Department C: Citizens' Rights and Constitutional Affairs

__________________________________________________________________________________________

Table 2: Overview of the transposition of selected provisions in the nine Member States

Art.

3(2)

Benefi

ciaries

Arts.

5(1),

(2)

Entry

Art. 6

Residen

ce ≤ 3

months

Arts.

7(1),

(2)

Residen

ce ≥ 3

months

Art. 14

Retention

residence

Art.

Perma

nent

reside

nce

Art. 27

Art.

24(1)

Equal

treat

ment

Restric

tions

public

policy,

security

, health

Art. 28

Protection

against

expulsion

Art.

Abuse

rights

Other issues not systematically

analysed in all Member States

Yes

Arts. 7(3) (retention of the status of

worker or self-employed), 17(1)(c)

(exemptions for persons no longer

working in the host Member State

and their family members), 20(1)

(permanent residence card for

family members who are not

nationals of a Member State)

Art. 7(4) (right of residence for

more than three months for the

spouse, registered partner or

dependent children)

Arts.

3(1)

(beneficiaries),

(administrative formalities for EU

citizens)

Art. 31 (procedural safeguards)

Art. 7(3) (retention of the status of

worker or self-employed)

Arts. 2(2)(b)

(definition of ‘family

member’),

7(3) (retention of the

status of worker or self-employed),

7(4) (right of residence for more

Yes

Please note that the articles listed under this column were indicated, as being problematically transposed in the 2008 Commission report and the 2009 Study commissioned

by the European Parliament, although these articles were not systematically analysed in all the nine Member States.

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Arts.

7(1),

(2)

Residen

ce ≥ 3

months

Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

Art.

3(2)

Benefi

ciaries

Arts.

5(1),

(2)

Entry

Art. 6

Residen

ce ≤ 3

months

Art. 14

Retention

residence

Art.

Perma

nent

reside

nce

Art. 27

Art.

24(1)

Equal

treat

ment

Restric

tions

public

policy,

security

, health

Art. 28

Protection

against

expulsion

Art.

Abuse

rights

Other issues not systematically

analysed in all Member States

than three months for the spouse,

registered partner or dependent

children),

20(1)

(permanent

residence card for family members

who are not nationals of a Member

State)

Yes

Arts. 7(3) (retention of the status of

worker or self-employed), 30

(notification of decisions), 31

(procedural safeguards)

Yes

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Policy Department C: Citizens' Rights and Constitutional Affairs

__________________________________________________________________________________________

As the table above illustrates,

transposition issues have been identified for all the

selected provisions except Article 28

concerning protection against expulsion

and

Articles 7(1) and 7(2) concerning the right of residence

for more than three months

for EU citizens and their family members based on employment, sufficient resources or

student status. In some cases, the issues relate to a lack of transposition of the provision;

in others incorrect transposition of parts of the provision or incomplete transposition. Main

issues related to a lack of transposition of a provision involve the absence of transposition

of key passages of the provision or the incorrect transposition of important requirements.

Such an example is where the national transposition measure does not exclude expulsion

as an automatic consequence of recourse to the social assistance system

. In other cases,

the transposition issue may relate to an ambiguous term or a term that does not properly

reflect the scope of the Directive’s requirements. For example, the wording ‘essential’ is

replaced by the weaker term ‘as necessary’ in the Belgian transposing legislation

The main challenges with

Article 3(2)

of the Directive relate to the transposition of the

requirement to facilitate entry and residence rights for the full list of beneficiaries,

including people in civil partnerships or same-sex partners (e.g.

UK),

and the obligation

to justify any denial of entry or residence rights (i.e.

DE, FR, PL).

In addition, while the

provision may be correctly transposed in national legislation, the requirements may not

be sufficiently defined under national legislation leaving the door open to possible issues

of implementation. For example, the definition

of what might constitute a ‘durable

relationship’ (i.e.

IT)

and what is required to prove the durable character of the

relationship (e.g.

and

PL)

is unclear in several Member States (see more details in

section 2.2.4). The lack of harmonised rules on the mutual recognition of documents

relating to personal status (such as birth certificates and marriage certificates)

exacerbates these problems.

In relation to

Articles 5(1) and 5(2),

the establishment of specific facilities for granting

entry visas (being subject to an accelerated procedure and issued free of charge) to people

in durable relationships or to TCN family members of EU citizens that are clearly

differentiated from those applied to TCNs, remains problematic in

Germany, France

and

Ireland.

Similarly, the French and Irish transposing legislation does not specifically

provide that no entry visa or equivalent formality may be imposed on EU citizens.

Article 6

on the right of residence for up to three months has been correctly transposed

in the selected Member States except

France, Italy

and

Ireland

where the transposing

legislation adds additional conditions, which are contrary to the Directive, namely requiring

people to demonstrate that they do not become an unreasonable burden on the social

welfare system of the State (FR and

IE)

. Moreover, the French transposition measures

require a guarantee from the applicant that he/she does not present a threat to public

See Kelly, G., ‘Study on Obstacles to the right of free movement and residence for EU citizens and their

families:

Country report for

Ireland’, 2016.

See Meurens, N. and Van Caeneghem, J., ‘Study on Obstacles to the right of free movement and residence for

EU citizens and their families:

Country report for Belgium’, 2016.

Code on the entry and stay of foreigners and the right to asylum (Code

de l’Entrée et du Séjour des

Etrangers et du Droit d’Asile)

(CESEDA), Article L121-4, available at:

https://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006070158-1;

Regulation 6(1) of

European Communities (Free Movement of Persons) Regulations 2015, (S.I. No. 548 of 2015), available at:

http://www.irishstatutebook.ie/eli/2015/si/548/made/en/pdf.

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

policy or public security

. The law also requires TCN family members to apply for a

residence card if they are over 18 years of age. Such an application must take place within

two months, in breach of the Directive’s provision that

EU citizens and their family

members have a right of residence for up to three months with no formalities required

other than valid identification

. A new

Italian

provision imposes additional formalities not

allowed by the Directive, since the EU citizen can legally stay in Italy for less than three

months if he/she can show, in addition to an identity card or passport, the document

issued by the police stating that he/she reported his/her presence

Article 14

of the Directive on the retention of the right of residence is problematic in the

majority of the nine selected Member States. For example,

Poland

has not transposed

Article 14. The transposing legislation in

Germany, France

and

Ireland

does not exclude

expulsion as an automatic consequence of recourse to the social assistance system.

Belgium’s

transposing legislation does not require that the verification of the conditions

of residence must not be carried out systematically.

All the selected Member States but

France

have transposed

Article 16

correctly. The

transposition issue identified in the French legislation relates to the conditions attached to

the right of permanent residence beyond five years. The French transposing measure

requires all foreign nationals to have health insurance coverage in order to obtain the right

of permanent residence in France. This requirement goes beyond Directive 2004/38/EC,

which only requires the possession of an identity card. In addition, the national legislation

does not contain any reference to the exceptions to the continuous period of five years

(six months per year, military obligations, etc.).

Article 24(1)

of the Directive on equal treatment is yet to be fully transposed into

Polish

and

Swedish

law. The

has not directly transposed Article 24, although it is arguably

partly reflected through a series of statutory amendments to existing UK legislation on

social security and student maintenance. The provision has been transposed almost

verbatim in

Spanish

legislation. However, instead of referring to ‘on the basis of the

Directive’ it refers to ‘on the basis of the Royal Decree (RD)’, (i.e. the transposing measure)

which may create problems if the RD does not transpose the Directive correctly.

Article 27

of the Directive limiting the restriction of the freedom of movement and

residence rights of Union citizens and their families on grounds of public policy, public

security or public health, and the requirement that measures taken be in line with the

principle of proportionality have not been fully transposed in

Belgium, France, Ireland

and

Spain.

The Belgian legislation does not guarantee that information on criminal records

cannot be requested after three months of residence or entry into the country. In addition,

the

Belgian transposing provision uses the weaker wording ‘as necessary’ rather than

Code on the entry and stay of foreigners and the right to asylum (Code

de l’Entrée et du Séjour des Etrangers

et du Droit d’Asile)

(CESEDA), Article R121-1, available at:

https://www.legifrance.gouv.fr/

affichCode.do?cidTexte=LEGITEXT000006070158.

Code on the entry and stay of foreigners and the right to asylum (Code

de l’Entrée et du Séjour des

Etrangers et du Droit d’Asile)

(CESEDA), Article R121-14, available at:

https://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006070158.

Article 6 of Legislative Decree 6 February 2007, n.30, Implementation of the European Directive in the rights

of citizens of Union and their family members to move and reside freely within the territory of member states

(Attuazione

della direttiva 2004/38/CE relativa al diritto dei cittadini dell’Unione

e dei loro familiari di circolare e

di soggiornare liberamente nel territorio degli Stati membri),

Official Journal n. 72 of 27 March 2007.as amended

by Decree-Law 89/2011 Urgent measures to complete the transposition of Directive 2004/38 (Decreto

Legge 23

giugno 2011, n. 89 ‘Disposizioni urgenti per il completamento dell'attuazione della direttiva 2004/38/CE sulla

libera circolazione dei cittadini comunitari e per il recepimento della direttiva 2008/115/CE sul rimpatrio dei

cittadini di Paesi terzi irregolari),

Government Journal. 23/06/2011, n.144.

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Policy Department C: Citizens' Rights and Constitutional Affairs

__________________________________________________________________________________________

‘essential’ regarding the possibility to request previous police records. The Spanish

transposing legislation does not mention the principle of proportionality and has not

transposed the fourth paragraph of Article 27. Ireland and France do not clearly provide

that these grounds must not be invoked to serve economic ends. The Irish transposition

of Article 27(2),(3) and (4) is also incomplete, while those paragraphs have not been

transposed at all in French law. Articles 27(3) and 27(4) have also not been transposed in

law. Article 27 has been incorrectly transposed in

Italy

as the transposing legislation

allows for removal for other reasons of public policy or public security without defining

such conditions. Therefore, these grounds for removal remain ambiguous and do not

address the transposition issues identified by the 2008 Commission report.

In particular,

Italy fails to identify the interests it intends to protect with regard to these grounds for expulsion

the

transposition of

Article 35

is found to be incorrect. The UK transposing legislation

goes beyond the Directive adding that a denial of entry into the UK is justified in cases

when an EU citizen has been removed in the past 12 months for not residing in the UK as

a ‘qualified person’ i.e. as a working, self-employed

or self-sufficient individual, where the

EU citizen cannot demonstrate that the conditions for a right to reside, beyond the Article

6 right of residence up to three months, will be met.

2.2.3.

Additional transposition issues in the selected Member States

In addition to analysing the selected provisions, the transposition assessment also looked

at issues of transposition flagged by the 2008 Commission report and the 2009 Study

commissioned by the European Parliament in order to check whether the issue has been

addressed fully or not. Since the transposition issues flagged in those reports in 2008 and

2009 vary from one Member States to another, they do not allow for a comparative

overview nor do they provide a complete transposition overview as the reports only flagged

a selection of issues.

Belgium

Transposition of the Directive into Belgian law has taken a long time and a number of

amendments have been made to the national legislation. While

largely in line

with the

Directive, transposition remains

incomplete.

Many of the transposition issues identified by

the Commission and the Study commissioned by the European Parliament have been

addressed, although a number of transposition problems remain. In addition to those

mentioned above under section 2.1.1,

Article 7(3)

of the Directive on the right of residence

for more than three months has not been properly transposed, as Belgian legislation

provides for the retention of the ‘residence right’ rather than ‘worker status’, which has a

different scope. Similarly,

Article 17(1)(c)

of the Directive on the right to permanent

residence of workers or self-employed persons has not been fully transposed, as Belgian

legislation does not recognise the right for a worker to retain residence in the host Member

State where, after three years of continuous employment and residence in Belgium, he/she

goes to work in another Member State. In addition, the legislation does not guarantee that

a residence card will be renewed automatically every ten years (Article

20(1)

of the

Directive). Instead, the permanent residence card is only valid for five years.

European Commission, Communication 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, 2.7.2009, [COM(2009) 313 final], p. 13.

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

France

While most of Directive 2004/38/EC has now been effectively transposed into French law,

a number of

conformity issues still remain.

In relation to provisions previously flagged

as problematic by the Commission’s report, Articles 3(1) and 8 contain some transposition

issues. Since 2013, France has recognised the full rights of free movement and residence

for same-sex couples. However, to date there is no explicit transposition of the obligation

under

Article 3(1)

to justify any denial of entry or residence. In terms of

Article 8

relating

to registration with the competent authorities, French legislation still requires registration

within the first three months for a stay of more than three months in France.

Germany

Directive 2004/38/EC has been

almost entirely transposed

into German national law.

Since 2008, improvements have been made concerning the transposition of Article 35

(abuse of rights of free movement), as well as the equal treatment of marriage and

registered partnerships of same-sex couples. Despite recent amendments to the

transposing legislation at national level

, some minor transposition gaps remain. In

addition to the abovementioned problematic provisions, the second sentence of

Article

7(4)

of Directive 2004/38/EC has not been specifically transposed, meaning that there is

no specific facilitation of entry and residence rights for dependent relatives of a student in

the ascending line nor those of his/her spouse or registered partner.

Ireland

While most Articles of the Directive have been correctly and completely transposed, with

transposition of the Directive estimated at 90% completion, some

transposition issues

still remain.

In addition to the abovementioned issues,

Article 31

of the Directive

concerning procedural safeguards has not been sufficiently transposed, as the the

European Communities (Free Movement of Persons) Regulations 2015 (the 2015

Regulations)do not address the situation ‘where the application for appeal against,

judicial review of, the expulsion decision is accompanied by an application for an interim

order to suspend enforcement of that decision, actual removal from the territory may not

take place’ until the decision has been taken on the interim order except

where the

expulsion decision is based on a previous judicial decision, or where the persons concerned

have had previous access to judicial review. Nor do the 2015 Regulations provide that an

individual may not be prevented from submitting his/her defence in person except when

the appeal or judicial review concerns a denial of entry to Ireland.

Italy

Directive 2004/38/EC was transposed, with some delay, through Legislative Decree

30/2007. Since 2008, a number of amendments have been introduced to rectify partially

incorrect and incomplete transposition, including several provisions that were previously

omitted. Most of the issues previously raised have been addressed, although certain

provisions remain a source of concern. Italy does not appear to have addressed the

concerns of the Commission in relation to

Article 7(3) of the Directive

on the retention

of the status of worker.

Amending Law of 21 January 2013 (Article

1 G zur Änderung des FreizügG/EU und weiterer

aufenthaltsrechtlicher Vorschriften),

BGBl. I, p. 86; Amending Law of 2 December 2014 (Article

1 G zur Änderung

des FreizügG/EU und weiterer Vorschriften),

BGBl. I, p. 1922.

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Policy Department C: Citizens' Rights and Constitutional Affairs

__________________________________________________________________________________________

Poland

Poland transposed the Directive in a single measure, the Act of 14 July 2006

, which was

amended in 2014 to overcome some of the transposition problems identified in the 2008

Commission report. Poland seems to have transposed approximately 80% of the Directive,

with some gaps remaining in Polish law that may hinder the free movement of EU citizens

and their family members. In addition to the issues mentioned under section 3.1, Poland

has still not fully transposed

Article 2(2)(b)

of the Directive, as no provision is made for

the partners of the EU citizen. There are no provisions on facilitating entry and residence

rights

for a student’s direct ascendants (Article

7(4) of the Directive).

In addition, in

the current legal status, reference is still made to the retention of the status of ‘resident’,

rather than that of a ‘worker’ (Article

7(3) of the Directive).

According to the legislation,

the permanent residence card of an EU citizen’s family member is not automatically

renewed every 10 years (as required by

Article 20(1) of the Directive).

Spain

Spain transposed the Directive late through a single measure: Royal Decree 240/2007

According to the 2008 Commission Report

, transposition was incomplete, with some

provisions transposed more favourably, some ambiguously and others incorrectly. In

2008, the Royal Decree was less restrictive than the Directive in certain respects

. EU

citizens were free to enter or reside in the country for an unlimited period, without the

need to fulfil any condition in order to register as residents. In addition, EU citizens and

their family members were entitled to permanent residence status once they had been

legally resident for a continuous period of three years (instead of the prescribed period of

five years as set out in the Directive). Since 2008, the transposing legislation has been

amended to align it with the Directive and address the transposition issues raised.

Transposition is currently considered 90% complete, as two main elements of incorrect

transposition remain, i.e.

Article 3(2)

and

Article 27

as mentioned above.

Sweden

Following the 2014 amendments to the Swedish Aliens Act

, transposition of the Directive

can now be considered as

satisfactory,

and may be said to be above 90%. In some

instances, the rules under the Aliens Act are

more favourable

than under the Directive

itself, e.g. Sweden has chosen not to implement the exception allowing Member States to

restrict free movement on grounds of public health.

Act of 14 July 2006 on the entry into, residence in and exit from the Republic of Poland of nationals of the

European Union Member States and their family members (Ustawa

z 14 lipca 2006 roku o wjeździe na terytorium

Rzeczypospolitej Polskiej, pobycie oraz wyjeździe z tego terytorium obywateli państwa członkowskich Unii

Europejskiej i członków ich rodzin),

Journal of Laws No. 144, item 1043.

Royal Decree 240/2007 on the entry, free movement and residence in Spain of Union citizens and of citizens

within the European Economic Area (Real

Decreto 240/2007, de 16 de febrero, sobre entrada, libre circulación y

residencia en España de ciudadanos de los Estados miembros de la Unión Europea y de otros Estados parte en

el Acuerdo sobre el Espacio Económico Europeo),

Spanish Official Journal, n. 51 of February 28, 2007.

European Commission, ‘Report from the Commission to the European Parliament and the Council on the

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’,Brussels, 10.12.2008 COM(2008) 840 final, available at:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0840:FIN:en:PDF;

European Parliament,

‘Report on the 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’, 23.3.2009, (2008/2184(INI)), available at:

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A6-2009-

0186+0+DOC+PDF+V0//EN.

Blázquez Peinado, M.D. 'Transposition into Spanish law of Community legislation on free movement and

residence of Union citizens and their family members: Royal Decree 240/2007 of February 16' [2007] Review of

European Community Law 27, 595-622 (Blázquez

Peinado, M.D., ‘La transposición en Derecho español de la

normativa comunitaria sobre libre circulación y residencia de ciudadanos de la Unión y miembros de su familia:

el Real Decreto 240/2007 de 16 de febrero’ [2007] Revista de Derecho Comunitario Europeo 27, 595-622).

Aliens Act (Utlänningslag (2005:716))2005-09-29.

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__________________________________________________________________________________________

Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

The 2008 Commission Report and the 2009 study commissioned by the European

Parliament stated that the majority of Directive 2004/38/EC had been largely transposed

into UK law, although with some problems. Some of these issues, such as the UK’s

implementation of the

Metock

and

Rahman

rulings, have now been resolved. Others,

however, are yet to be addressed, such as the partial transposition of

Article 7(3)

on the

retention of the status of a worker and the issues mentioned above. In particular, the UK

continues to restrict opportunities for self-employed migrants to retain their rights as

economically active individuals. Moreover,

Articles 30 and 31

on procedural safeguards

have not been adequately transposed. In particular, the UK imposes a requirement that

family members produce evidence that they are,

inter alia,

the family member of an EEA

national before they are granted appeal rights

. Certain appeals also cannot be made

from within the UK

2.2.4.

Topical transposition issues

The analysis of the national legislation in the selected Member States demonstrates the

challenges in the transposition of

certain concepts

contained in Directive 2004/38/EC

and discussed below.

Sufficient resources

The Directive establishes as a condition for residence for more than three months that EU

citizens and their family members have sufficient resources not to become a burden on

the social assistance system of the host Member State

. The notion of sufficient resources

is broadly defined in Article 8(4) of the Directive as follows:

Article 8(4): sufficient resources

Member States may not lay down a fixed amount which they regard as "sufficient

resources", but they must take into account the personal situation of the person

concerned. In all cases this amount shall not be higher than the threshold below which

nationals of the host Member State become eligible for social assistance, or, where this

criterion is not applicable, higher than the minimum social security pension paid by the

host Member State.

While the concept of ‘sufficient resources’ is recognised in the transposing legislation of

most Member States, it is

not always defined,

which causes difficulties with respect to

entitlement to a registration certificate or residence card. Although the notion

of ‘sufficient

resources’ is not defined in the

Polish

Act transposing Directive 2004/38/EC, some

guidance is contained in the Ordinance on application forms of 24 August 2006

from the

Ministry of the Interior and Administration. Accordingly, EU citizens and their family

members are obliged to prove that they possess sufficient financial means to support

themselves and their family members in Poland without the need for social assistance. This

Reg 26(3) of the Immigration (European Economic Area) Regulations 2006, SI 2006/1003.

Reg 27(1) of the Immigration (European Economic Area) Regulations 2006, SI 2006/1003.

Article 7 of the Directive.

Ordinance of the Ministry of the Interior and Administration of 24 August 2006 on application forms and

documents regarding the right of residence on the territory of the Republic of Poland of citizens of the EU Member

States and their family members (Rozporządzenie

Ministra Spraw Wewnętrznych i Administracji z dnia 24 sierpnia

2006 r. w sprawie wniosków i dokumentów w sprawach prawa pobytu na terytorium Rzeczypospolitej Polskiej

obywateli Unii Europejskiej i członków ich rodzin),

Journal of Laws of 2006r, No 154, item. 1105, as amended.

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Policy Department C: Citizens' Rights and Constitutional Affairs

__________________________________________________________________________________________

Ordinance is then interpreted by the relevant Voivodeship offices

(i.e. offices of the

Department for Citizenship and Foreigners) and each case is considered individually on the

basis of the documents presented

. Some offices consider a person to have sufficient

resources when his/her income is higher than the threshold for social assistance in Poland

Some offices require the EU citizen to specify the total of their resources

, while others

require only a statement from the person concerned or a document stating that he/she

possesses sufficient resources to cover the costs of residence in Poland, signed and stamped

by an authorised employee of a bank or the institution in the month prior to the application

for registration of residence

The notion of ‘sufficient resources’ has not been defined in the

German

legislation, the

FreizügG/EU, and its scope remains unclear, in particular with respect to non-contributory

benefits. The notion of ‘resources’ has been explained by the legislator

, as well as in the

administrative guidelines

to the FreizügG/EU

. In German law, resources comprise all

legal sources of income and assets with a financial value, including alimony payments from

family members or third parties, scholarships, grants for education or (re-)training,

unemployment benefits, widow and orphan pensions, old-age pensions (including early

retirement), disability pensions, or any other contributory benefits financed by public funds.

This latter reference to contributory benefits is not reflected in Directive 2004/38/EC, and it

is unclear whether or not the inclusion of non-contributory unemployment benefits under

Social Code II (Sozialgesetzbuch

II)

and other non-contributory benefits as resources within

the meaning of §4 FreizügG/EU complies with EU law

. The

planned amendments

to the

administrative guidelines of the FreizügG/EU will explicitly exclude non-contributory

unemployment benefits under Social Code II (Sozialgesetzbuch

II)

as resources within the

meaning of § 4 FreizügG/EU

, which is considered to be in line with the CJEU interpretation

of Article 24(2) of Directive 2004/38/EC (equal treatment) in the

Dano

case

In those Member States where the concept is

defined

(e.g.

BE, ES)

the transposing

legislation generally refers to the revenue level under which citizens can benefit from social

assistance, in line with the Directive. For example,

Sweden

has transposed the concept

of ‘sufficient resources’ to cover students who are EEA

citizens, as well as other EEA

citizens who have ‘sufficient resources’ to acquire a right to stay in Sweden. The Migration

Court of Appeal (Migrationsöverdomstolen)

interpreted ‘sufficient resources’ to mean that

In Poland, the matters regulated by the Act on entry are within the competence of the Voivodeship offices -

Department for Citizenship and Foreigners (Urzędy

Wojewódzkie – Wydziały Spraw Obywatelskich i

Cudzoziemców).

Information obtained through consultation with stakeholder (the Office for Foreigners, March 2016).

Information obtained through consultation with stakeholder (the Office for Foreigners (Urząd

do Spraw

Cudzoziemców);

Wielkopolski Voivodeship Office; Silesian Voivodeship Office (Śląski

Urząd Wojewódzki),

March

2016).

Information obtained through consultation with stakeholder (Silesian Voivodeship Office, March 2016).

Information obtained through consultation with stakeholder (Wielkopolski Voivodeship Office; Kujawsko-

Pomorski Voivodeship Office (Kujawsko-Pomorski

Urząd Wojewódzki);

Mazovian Voivodeship Office (Mazowiecki

Urząd Wojewódzki);

Office for Foreigners; Silesian Voivodeship Office; Warmińsko-Mazurski

Voivodeship Office

(Warmińsko-Mazurski

Urząd Wojewódzki,

March 2016).

BR-Drs. 22/03.

Draft law in order to control and restrict immigration and to regulate residence and integration of EU citizens

and foreigners (Law on immigration), BT-Drs. 15/420, p. 103; General administrative guidelines to the

FreizügG/EU, BR-Drs. 535/15, 5 March 2016., available at:

http://dipbt.bundestag.de/dip21/brd/2015/0535-

15.pdf, p. 28.

Brinkmann, G., in Huber, B. (ed.) Residence Act (Aufenthaltsgesetz) (1st edition 2010), § 4 para. 8;

Oberhäuser, T., in Hofmann, R. (ed) Immigration Law (Ausländerrecht) (2nd edition 2016) § 4 para. 6.

Disagreeing: Hailbronner, K., in idem (ed) Immigration Law (Ausländerrecht) (93th edition 01/2016) § 4 para.

General administrative guidelines to the FreizügG/EU, BR-Drs. 535/15, 5 March 2016, available at:

http://dipbt.bundestag.de/dip21/brd/2015/0535-15.pdf, p. 28.

Case C-333/13

Elisabeta Dano and Florin Dano v Jobcenter Leipzig

[2014] ECLI:EU:C:2014:2358., para. 63.

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

the EU citizen is required to have enough resources such that he or she does not become

a burden on the social assistance system. In that case, the person in question was in

receipt of some benefits under the Swedish social assistance system, which were not

considered a burden significant enough to deprive her of the right to stay in Sweden

There are some cases where the definition of ‘sufficient resources’ in national legislation

does not fully comply

with the Directive. For example,

French law

requires an individual

to prove both the amount of resources and their continuity over time with a degree of

certainty, which is more restrictive than intended by the Directive.

legislation has

introduced a ‘minimum earning threshold’ to define a ‘worker’. This risks denying Article 7

residence rights to low-wage or zero-hour workers, who may not meet this standard and

would be unlikely to be considered ‘self-sufficient’ since the UK does not recognise the

National Health Service as comprehensive sickness insurance for the purposes of Article

7(1)(b) and

test, which requires EU citizens to be ‘qualified

persons’

under the Directive, i.e. workers

or self-employed migrants, in order to access social support. This is arguably

discriminatory and contrary to the

Grzelczyk

decision conferring equality on all EU citizens,

irrespective of their nationality. This test has been found lawful by national courts, despite

numerous legal challenges. Similarly, following infringement proceedings brought by the

Commission, the use of the ‘right to reside’ trest for access to child benefit and child tax

credit has been found to be lawful by the CJEU. Recent amendments also limit the

residence rights of jobseekers to 91 days, except where they can show compelling

evidence of future employment. Similarly, the notion of ‘sufficient resources’ has not been

correctly defined in

Ireland

. While the 2015 Regulations do not define a fixed sum of

money in relation to the notion of ‘sufficient resources’ –

in line with Article 8(4) of the

Directive - there is no mention of

‘taking into account the personal situation of the person

concerned’, nor do they state that the amount of sufficient resources must not be higher

than the threshold below which nationals of Ireland become eligible for social assistance,

or higher than the minimum social security pension paid by Ireland, as stipulated in the

Directive. The lack of any reference to these criteria in the legislation could be considered

insufficient transposition of the Directive. In

Italy,

the transposition of the definition of

‘sufficient

resources’

cannot be considered correct, despite the requirement that the

personal situation of the individual be taken into account in determining whether or not

his/her economic resources are adequate. The legislation requires submitting evidence of

economic resources in accordance with certain benchmarks established by the national

legislation

together with proof of the

legality

of the economic resources which go beyond

the requirements of the Directive.

Unreasonable burden

The concept of unreasonable burden is set out in Article 14 of the Directive as a condition

for the retention of the right of residence, according to which EU citizens and their family

members retain their residence rights as long as they do not become an unreasonable

burden on the social assistance system. This provision states:

Judgment by the Swedish Court of Appeal, MIG 2011:19, judgment delivered on 2011-06-16.

Information obtained through consultation with stakeholder (Immigrant Council of Ireland, March 2016).

Article 29(3) of Legislative Decree 286/1998 ‘Text regulating migration and rules concerning migrants’ status’,

Decreto Legislativo 25 luglio 1998, n. 286, (Testo unico delle disposizioni concernenti la disciplina

dell'immigrazione e norme sulla condizione dello straniero),

Government Journal 18/08/1998, n. 191.

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Policy Department C: Citizens' Rights and Constitutional Affairs

__________________________________________________________________________________________

Article 14: unreasonable burden

Union citizens and their family members shall have the right of residence provided for

in Article 6, as long as they do not become an unreasonable burden on the social

assistance system of the host Member State.

The notion has proved challenging in most Member States. While some Member States

mirror

the Directive’s provision, they do not define the concept (e.g.

and

ES),

leaving

it up to the discretion of the competent authorities. Others transpose the concept

incorrectly or limit its interpretation. These inconsistencies have led to expulsions on the

grounds that an individual is deemed an unreasonable burden on the social assistance

system of the host Member State.

For example,

France

has established that the concept of

‘unreasonable

burden on the

social assistance system’ must be assessed

by considering the amount of non-contributory

social security benefits that have been granted to the person concerned (whether the

economic difficulties are temporary or not) and the length of his/her stay. However, French

law does not exclude expulsion as an automatic consequence of recourse to the social

assistance system, which is contrary to the Directive

. The Council of State concluded

that even if a person is not yet covered by the social assistance system in France, a lack

of resources can mean that an EU citizen living in France for less than three years has no

right of residence in France

. In addition, according to this opinion from the Council of

State, the administration may rely on data from organisations providing aid when it

invokes the unreasonable burden rule, or on statements previously made by the person

concerned. A high number of Bulgarian and Romanian nationals of Roma origin, in

particular, have been expelled from France, as they were considered to represent an

unreasonable burden on the French social assistance system.

The legislation in

Belgium

reflects the Directive’s requirements when referring to the

circumstances taken into account to assess whether a person has become an unreasonable

burden on the social assistance system. These include the temporary nature of the

difficulties, the length of residence in the State, the personal circumstances, the amount

of social assistance provided

, and a framework requiring that each situation is considered

on a case-by-case basis with no automatic withdrawal of residence rights

. The Alien

Litigation Council has stated that benefiting from social assistance should not result in an

automatic termination of a residence permit. While the transposing legislation presents no

issue, the legislation provides considerable discretion to the Immigration Office in

assessing whether or not a person is an unreasonable burden

. This has translated into a

strict interpretation of the Directive and a high number of EU citizens and their family

members being expelled on the grounds of being an unreasonable burden on the social

security system (see below). Similarly,

German

national law allows for withdrawal of the

right of residence and, where applicable, the residence card if the residence criteria are no

GISTI, Entry, stay and expulsion. What the law of 16 June 2011 changes (Entrée,

séjour et éloignement. Ce

que

change

la loi du 16

juin 2011),

available

at:

http://www.gisti.org/IMG/pdf/2011.-

09_cj_entree_sejour_apres_loi_besson.pdf, p. 50.

Conseil

d’État,

avis

(Council

State,

opinion)

November

2008,

available

at:

https://www.legifrance.gouv.fr/affichJuriAdmin.do?oldAction=rechJuriAdmin&idTexte=CETATEXT00001983194

0&fastReqId=1501735865&fastPos=3.

Article 42bis of the

Act of 15 December 1980 on access to territory, residence, settlement and removal of

foreigners.

CIRE, ‘The

right to residence of European citizens in Belgium (Le

droit de séjour des citoyens européens en

Belgique)’,

April 2014, p.

Circular of 10 July 2013 on the Programme Act of 28 June 2013.

CIRE, ‘The

right to residence of European citizens in Belgium (Le

droit de séjour des citoyens européens en

Belgique)’,

April 2014, p.8; Judicial Foreigners’ Council

decision of 30 September 2013 No 111.076.

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

longer met. The legislation

leaves

considerable margin of discretion

to the

administrative authorities in deciding

if a person’s access to social assistance constitutes

‘an unreasonable burden on the social assistance system’

. German legal literature has

attempted to provide some guidance on the definition of ‘unreasonable burden’. In general,

there is no harmonised view on whether the burden relates to the social assistance system

as a whole, or whether the burden is caused, or likely to be caused, by the

claimant’s

access to social benefits

Poland,

the notion of ‘being an unreasonable burden on the social assistance system’

is not defined. However, when a person is in receipt of social assistance, the Voivodeship

offices are required to consider all relevant circumstances to assess whether or not the

use of social assistance constitutes ‘an unreasonable burden on the social assistance

system’

. The Polish Act transposing Directive 2004/38/EC does not provide for expulsion

when a person becomes an unreasonable burden on the social assistance system, nor does

it provide a procedure for expulsion on purely economic grounds.

The

Irish

2015 Regulations on free movement allow EU citizens and their family members

to reside in Ireland for a period of up to three months provided they can demonstrate that

they are not an unreasonable burden on the social welfare system. This requirement seems

to go beyond what is permitted by the Directive. In addition, the 2015 Regulations do not

include any provision excluding expulsion as an automatic consequence of recourse to the

social assistance system.

Dependent family members

Article 3(2) of the Directive requires Member States to facilitate entry and residence rights

to other beneficiaries besides EU citizens and family members defined under Article 2 of

the Directive. These other beneficiaries include, among others,

family members who

are dependent on the EU citizen

having the primary right of residence. In its Recital 6,

the Directive further details that national legislation must provide for a careful examination

of the relevant personal circumstances of the applicants concerned, taking into

consideration their

relationship with the EU citizen

or any other circumstances, such

as their

financial or physical dependence.

In its case law, the CJEU added that the

status of ‘dependent’ family member is the result of a factual situation characterised by

the fact that

material support

for that family member is provided by the EU citizen or by

his/her spouse/partner

. In addition, the Court ruled that the ability of family members

concerned to find employment in the host Member State is an irrelevant factor with regard

to the interpretation of ‘dependent’

§ 5(4) FreizügG/EU.

Tewocht, H., in Kluth, W., Heusch, A. (eds) Immigration Law (Ausländerrecht) (9th edition 11/2015) § 4

FreizügG/EU, para. 10.

Raschka, J., ‘The entitlement of EU citizens to access social services due to the recent CJEU case law’ (‘Anspruch

von Unionsbürgern auf Zugang zu Sozialleistungen nach der jüngsten Rechtsprechung des EuGH’)

ZAR 2015,

331, 333 f; In favour: Thym, D., ‘The Return of the ‘’market citizen’’-

regarding the exclusion of non-working

age EU citizens from Hartz IV benefits’ (‘Die

Rückkehr des "Marktbürgers"

–

Zum Ausschluss nichterwerbsfähiger

EU-Bürger von Hartz IV-Leistungen’),

NJW 2015, 130, 132.

Information obtained through consultation with stakeholder (Wielkopolski Voivodeship Office; Kujawsko-

Pomorski Voivodeship Office (Kujawsko-Pomorski

Urząd Wojewódzki);

Mazovian Voivodeship Office (Mazowiecki

Urząd Wojewódzki);

Office for Foreigners; Silesian Voivodeship Office; Warmińsko-Mazurski

Voivodeship Office

(Warmińsko-Mazurski

Urząd Wojewódzki,

March 2016).

Case 316/85

Courcelles

Lebon

[1987] ECR 2811, paragraph 22; Case C-1/05

Jia

Migrationsverket

[2007]

ECR I-1, paragraphs 36-37 and Case C-200/02

Zhu and Chen

Secretary of State for the Home Department

[2004] ECR I-9925, paragraph 43.

Judgment of 16 January 2014 in Case C-423/12

Flora May Reyes

Migrationsverket

[2013]

ECLI:EU:C:2013:719 paragraph 25.

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Policy Department C: Citizens' Rights and Constitutional Affairs

__________________________________________________________________________________________

A certain degree of discretion is left to the Member States regarding the criteria they

should take into account when deciding whether to grant the rights under the Directive to

‘other dependent family members’.

However, this leads to a

wide variety of

interpretations

across the Member States and

issues of transparency,

especially in

Member States where the definition of ‘dependents’ and the criteria of what constitutes

‘dependency’ is inexistent. In those states, the transposing measure gives leeway to the

national authorities to apply very different interpretations of the term.

For instance, in

Italy,

the Directive has been literally transposed, but the Italian legislation

does not provide a

clear definition of ‘dependent’ and does

not expressly include the notion

of ‘other family members’ either, leaving up to Italian officials the opportunity to base their

assessment of dependency on different considerations, such as socio-economic

benchmarks

. Another issue resides in the fact that the Italian law requires that the

condition of dependent family members is included in the documents issued by the

authorities of the country of origin but does not specify which kind of documentation can

be accepted as evidence of dependency. As a consequence, the documentation usually

required is not available in many countries and the Italian administration does not

recognise the quality of a dependent family member

Germany,

the notion of ‘dependent’ is not defined and has not been specifically

transposed into German national law. However, the German Law on Residence gives

German authorities the option to grant a residence permit in order to avoid a particular

hardship

. This text leads to a national debate as regards whether Article 3(2) should be

considered as correctly transposed or not. While some academics claim that the strict

conditions of this legislation mean that the right to residence/entry has not been

facilitated

, others argue that the transposition is correct

100

. Similarly,

Poland

has failed

to transpose the concept of ‘dependent’ into its national law with no residence rights

facilitated for family members dependent on the EU citizen. However, a 2014 amendment

of the Polish transposing legislation has added that the decision of refusal to register the

right to residence is not applicable when the family member of the EU citizen joins him/her

due to financial dependency

101

. Although this new provision does not transpose the

Directive

per se,

it brings a certain protection against refusal decisions to these

beneficiaries.

Since the amendment of its legislation in 2014, the notion of dependent is in line with the

Directive in

Sweden

as it includes other family members who, in the country from which

they came, were dependent on the EEA citizen for their means of support. Similarly, the

Legislative Decree of 28 February 2008, n.32 ‘Modifications and integrations of legislative

decree 6 February

2007 n.30’ (Modifiche

e integrazioni al decreto legislativo 6 febbraio 2007, n. 30, recante attuazione della

direttiva 2004/38/CE relativa al diritto dei cittadini dell'Unione e loro familiari di circolare e di soggiornare

liberamente nel territorio degli Stati membri),

Official Journal n.52 of 1 March 2008.

Citizens without Borders, Free Movement and Residence in the European Union:, a Challenge for European

Citizenship, 31 May 2013, available at:

http://www.meltingpot.org/IMG/pdf/citizien_inglese.pdf, p. 39.

Tewocht, H., in Kluth, W., Heusch, A. (Eds), Immigration Law (Ausländerrecht) (2015) § 36 Residence Act

(Aufenthaltsgesetz) para. 12 f. and § 3 FreizügG/EU paragraph 18.

Case C-83/11

Secretary of state for the home department

Muhammad sazzadur rahman and others

[2012]

ECR I-4599, paragraph 21 f.; Tewocht, H., in Kluth, W., Heusch, A., Immigration Law (Ausländerrecht), 2015;

Dienelt, K., in Bergmann, J., Dienelt, K. (Eds) Immigration Law (Ausländerrecht), 2016 ; Oberhäuser, T., in

Hofmann, R. (Ed), Immigration Law (Ausländerrecht) (2016) § 2 FreizügG/EU para. 32 and § 3 FreizügG/EU

paragraph 18.

100

Schönberger, C., Thym, D., ‘National Report on Germany’ in Neergaard, U., Jacqueson, C., Holst-Christensen,

N. (eds)

Union Citizenship

–

Congress publications of the XXVI FIDE Congress in Copenhagen Vol. 2,

569.

101

Act of 14 July 2006 ‘on the entry into, residence in and exit from the Republic of Poland

of nationals of the

European Union Member States and their family members’ (Ustawa

z 14 lipca 2006 roku o wjeździe na terytorium

Rzeczypospolitej Polskiej, pobycie oraz wyjeździe z tego terytorium obywateli państwa członkowskich Unii

Europejskiej i członków

ich rodzin),

Journal of Laws No. 144, article 31.

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

recent provisions regarding dependent family members in the Belgian legislation now

effectively provide the rights to entry and residence for the dependents of EU citizens in

Belgium.

However, these national provisions do not provide any criteria on the basis of

which this dependency must be attested, leaving its application to the complete discretion

of the Belgian administration. Similarly, the

Irish

law correctly transposed the provision

of the Directive concerning dependent family members but there are interpretation issues

about what constitutes dependency for third country nationals in obtaining entry visas

102

In practice this results in a high number of refusals of residence cards because dependent

family members are not able to prove that they are dependent on the EU citizen

103

Spain,

dependency is proved if the family member can demonstrate 24 months of

continuous cohabitation with the EU citizen in the country from which they have come.

This could be considered a restricted approach to the notion of dependent family

member

104

. However, this is in line with the Directive as Member States may prescribe a

minimum amount of time as long as personal circumstances are taken into account and

any denial of entry or residence is fully justified

105

Durable relationship duly attested

Article 3(2)(b) provides that to obtain the right of entry/residence the partner of an EU

citizen must be in a durable relationship duly attested. This notion of durable relationship

has led to a

wide variety of interpretations

across the Member States. While some

Member States refer to a

minimum amount of time

as a criterion for whether a

partnership can be considered as durable (BE,

ES, IE, UK),

others limited the interpretation

of durability by requiring that partners share the

same household

(FR,

SE).

Certain

Member States also broadly interpret the concept by not including specific criteria and by

allowing partners to demonstrate this durability by

different kinds of evidence

(IT).

Italy,

the legislation only requires formal proof to ‘duly attest’ the durable relationship

‘with

any official documents’,

also allowing evidence from the State where the individual

was residing, and not necessarily the home Member State

106

. Furthermore,

other

specific criteria

are set out in the national legislation. This has resulted in a broad

interpretation of the Directive, favourable to the partners who can bring any means of

proof as long as they are official documents. Nevertheless, this also provides for greater

discretion for the administration and may result in a wide variety of interpretations of what

constitutes

a ‘durable relationship’.

Article 3(2)(b) of the Directive has not been specifically transposed into

German

legislation.

The national legislation does not provide any rule referring to the notion of durable

relationships (other than registered partnerships) for the exercise of the right to entry and

Information obtained through consultation with stakeholder (Your Europe Advice Service, March 2016);

Information obtained through consultation with stakeholder (Jeanne Boyle Solicitors, March 2016).

103

Information obtained through consultation with stakeholder (Your Europe Advice Service, March 2016).

104

Royal Decree ‘240/2007 on the entry, free movement and residence in Spain of Union citizens and of citizens

within the European Economic Area’

(Real

Decreto 240/2007, de 16 de febrero, sobre entrada, libre circulación

y residencia en España de ciudadanos de los Estados miembros de la Unión Europea y de otros Estados parte en

el Acuerdo sobre el Espacio Económico Europeo)

Spanish Official Journal n. 51 of 28 February 2007, article 2.

105

European Commission, Communication 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, Brussels 2009, COM(2009) 313 final, available at:

http://eur-lex.europa.eu/legal-

content/EN/TXT/PDF/?uri=CELEX:52009DC0313&from=EN,

p.4.

106

Law 97/2013

on the ‘Measures

for Italy to fulfill the obligations under EU membership

–

European Law 2013’

(Legge

6 agosto 2013, n. 97 ‘Disposizioni per l'adempimento degli obblighi derivanti dall'appartenenza dell'Italia

all'Unione europea - Legge europea

2013’),

Government Journal 20/08/2013, n.194, Article 9.

102

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Policy Department C: Citizens' Rights and Constitutional Affairs

__________________________________________________________________________________________

residence. As a result, no facilitation of entry or residence for such durable relationships

exists in Germany.

Poland

does not legally recognise any form of partnerships. Hence, the concept of durable

relationship duly attested does not exist in Polish legislation and there is no specific

facilitation of entry and residence rights for partners of EU citizens

107

. However, the Polish

Administrative Courts have recently ruled that in the absence of the relevant Polish

provisions obliging the authorities to facilitate the entry and residence of TCNs in a

partnership with an EU citizen, the provision of the Directive is directly applicable

108

. The

Border Guards in Poland have adopted non-legally binding guidelines specifying how to

determine whether such a person remains in a durable and duly attested relationship

109

The guidelines include a broad interpretation of the concept of ‘duly attested’,

favourable

for the partners. They provide that the authorities must rely on the statement of the person

and must verify the documents certifying the partnership, which is considered to be in line

with the Directive.

France,

national rules include a clear notion of durable relationship duly attested. The

French legislation specifies that the condition of durable relationship can be satisfied by the

partner if he/she provides proof that either he/she is dependent on, or

part of the

household

of, the EU citizen in the country of origin.

Household sharing

is also a criteria

set out in the

Swedish

law which states that the durable relationship condition is fulfilled

as long as the parties continuously live together as a couple and share a household

110

Irish

law the concept of durable relationship makes reference to a minimum amount of

time. The right of residence for partners is granted if he/she can show that he/she is

in a

relationship lasting at least two years

with the EU citizen

111

. While such criteria does

not contradict the wording of the Directive, the Commission Communication explicitly states

that national administration cannot only base their decision on this criteria

112

. National rules

must foresee that other relevant aspects (such as, for example, a joint mortgage to buy a

home) are also taken into account. Similarly,

legislation defines a durable relationship

as a relationship that has subsisted for at least two years. However, Home Office Guidance

provides that the durability can also be evidenced by other elements, for example, by the

presence of children

113

. The Home Office Guidance also set up a non-exhaustive list of the

types of documents that partners might be required to provide, including: proof that any

previous relationships have permanently broken down; evidence of cohabitation in the

previous two years such as bank statements, rent agreements or mortgage payments;

evidence of joint finances; evidence of joint responsibility for any children; and other

evidence demonstrating the applicants’ commitment and relationship

114

. The Commission

Act of 14 July 2006 ‘on the entry into, residence in and exit from the Republic of Poland of nationals of the

European Union Member States and their family members’ (Ustawa

z 14 lipca 2006 roku o

wjeździe na terytorium

Rzeczypospolitej Polskiej, pobycie oraz wyjeździe z tego terytorium obywateli państwa członkowskich Unii

Europejskiej i członków ich rodzin),

Journal of Laws No. 144, item 1043.

108

Judgment by the Voivodeship Administrative Court of Warsaw, Case IV SA/Wa 154/13, judgment delivered

15.03.2013; Judgment by the Voivodeship Administrative Court of Warsaw, Case IV SA/Wa 2093/12,

22.05.2013.

109

Information obtained through consultation with stakeholder (the Border Guards unit, April 2016).

110

‘Cohabitation Act’

(Sambolag),

Government Journal 2003:376, Section 1.

111

Your Europe Advice, Quarterly Feedback Report No.13, Quarter 3/2015 (July-September), p 13.

112

European Commission, Communication 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, Brussels 2009, COM(2009) 313 final, available at:

http://eur-lex.europa.eu/legal-

content/EN/TXT/PDF/?uri=CELEX:52009DC0313&from=EN, p.4.

113

Home Office Guidance, ‘Extended Family Members of EEA nationals’, 7 April 2015, available at:

https://www.gov.uk/government/publications/extended-family-members-of-eea-nationals, p. 13-14.

114

Home Office Guidance, ‘Extended Family Members of EEA nationals’, 7 April 2015, available at:

https://www.gov.uk/government/publications/extended-family-members-of-eea-nationals,

p. 6.

107

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

reported in 2009 that the necessary documents required to attest the existence of a durable

relationship were loosely regulated in

Spain.

However, since the 2015 legislative

amendment, the national legislation calls for an extensive examination by the administration

of the individual circumstances of durable relationships.

One year of cohabitation or the

existence of common descendants

(provided that there is a stable cohabitation) is

considered sufficient evidence to prove a durable relationship. Although these requirements

are not in breach of the Directive, Spain made a strict interpretation of the concept of

durability. In addition, clearer rules are needed on the possible means of proof of the

existence of a durable relationship

115

. In

Belgium,

partners must show that they are in a

durable relationship with the EU citizen, living together, not being in a durable relationship

with someone else, and being over 21 years old. A relationship can be deemed durable

where the two parties have lived together for at least one year, or have met three times

amounting to 45 days in the past two years, or have a child together

116

Genuine chance of being engaged

Genuine chance of being engaged is set out under Article 14(2) and is a condition for the

retention of the right of residence, according to which EU citizens and their family members

retain their residence rights as long as they can provide evidence that they are continuing

to seek employment and that they have a genuine chance of being engaged. The notion has

proved challenging as

most Member States did not define the concept.

Furthermore,

the Directive is silent on the types of documents that jobseekers should bring to prove that

they have a

‘genuine chance of being engaged’ and the time after which Member States can

require such proof. Certain Member States adopted very restrictive interpretations of this

concept.

For example,

Belgium

does not define what should be understood under the notion of

genuine chance of being engaged, leaving it up to the discretion of the administrative

authorities. In addition, it requires jobseekers to provide evidence that they are continuing

to seek employment and that they have a genuine chance of being employed without

specifying from which point in time they must start providing evidence. Such legal

uncertainty led the administration to give a strict interpretation of the Directive as it could

require EU citizens and their family members to prove the continuity of employment and

chance of being employed even before six months

117

. Such a requirement is not fully in

line with the

Antonissen

case in which the CJEU held that a Member State may require an

EU citizen to leave if (s)he has not found employment after six months, unless the person

concerned provides evidence that (s)he is continuing to seek employment and that he has

a genuine chance of being engaged

118

. The recently amended

German

and

Polish

law

provide that jobseekers now enjoy an unconditional right to residence for six months, after

which they are entitled to residence only

if ‘they can provide evidence that they are

continuing to seek employment and that they have a genuine chance of being

employed’

119

. This transposition of the concept of

‘genuine chance of being employed’ has

115

Royal Decree 987/2015, (Real

Decreto 987/2015, de 30 de octubre, por el que se modifica el Real Decreto

240/2007, de 16 de febrero, sobre entrada, libre circulación y residencia en España de ciudadanos de los Estados

miembros de la Unión Europea y de otros Estados parte en el Acuerdo sobre el Espacio Económico Europeo)

Spanish Official Journal n.269.

116

Act 8 July 2011 ‘amending the Act of 15 December 1980 on access to the territory, residence, settlement and

removal of foreigners

regarding family reunification requirements’,

Government Journal

C − 2011/00547.

117

Coordination et Initiatives pour Réfugiés et Étrangers (CIRE),

Annual Report 2014,

(2015), p.16.

118

Case C-292/89

The Queen

Immigration Appeal Tribunal, ex parte Gustaff Desiderius Antonissen

[1991] ECR

I-00745.

119

Law ‘on General Freedom of Movement of EU Citizens of 30 July 2004’

(Gesetz über die allgemeine

Freizügigkeit von Unionsbürgern),

BGBl. I, p. 1950, 1986, last modified by Amending Law of 22 December 2015

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__________________________________________________________________________________________

translated into a strict interpretation of the Directive as it could imply a systematic control

of the fulfillment of the residence requirements for jobseekers after six months albeit it is

in line with the Directive and the CJEU case law. Poland has broadly defined the concept

of ‘compelling evidence’,

which

has an impact on how ‘genuine chance of being engaged’

is assessed by the authorities. ‘Compelling evidence’ covers

any document or explanation

made in the course of the procedure demonstrating that the person concerned is actively

looking for a job, documents confirming job applications, acquired education and/or

professional qualifications and/or experience.

Since a 2014 amendment of its national rules

120

, the

gives a very strict interpretation

of the six-month period required by the CJEU in Case C-292/89

Antonissen.

The national

legislation takes into account the period of initial residence and reduced it from the six-

month, leaving therefore only 91 days of job-seeking before the EU citizen must provide

‘compelling evidence of job-seeking

and of

a genuine chance of being engaged’

121

. Since

such a rule also immediately applies to long-term residents who may already have

exhausted their three-month initial residence rights and right to reside for 91 days as a

jobseeker, this can result in the UK administration requiring them to provide evidence of

future work straight away

122

. In addition, the UK definition of

‘compelling evidence’ is very

restrictive, covering only documentary evidence of a job offer or very recent material

evidence of a change in circumstances, accompanied by pending outcomes of job

interviews.

Italy

did not introduce the notion of

‘a genuine chance of being engaged’ as a condition

of the retention of the right of residence in its national law. As a consequence, jobseekers

are only required to prove that they have continued to seek employment. This is a more

favourable transposing provision as in Italy, registration with the employment office

constitutes evidence that an EU citizen is continuing to seek employment.

Imperative ground of public security

Public security is a ground set out under Article 27 of the Directive that Member States

can invoke to restrict the freedom of movement and residence of EU citizens and their

family members, irrespective of nationality. In accordance with Article 28, it is also a

ground under which a Member State can expel EU citizens or their family members even

if they have the right to permanent residence, have stayed in the country for the previous

10 years or is a child. Some Member States introduced provisions mirroring the wording

of both Articles (BE,

DE, SE)

but other national rules have translated the notion of public

security in unclear provisions, leaving a discretionary power to the administration.

The notion of public security is not defined in the Directive, leaving the freedom to define

the protected interests of society and determine the requirements of public security to the

Member States in accordance with their needs. However, the Commission has recalled in

its Communication that the Member States must define clearly the protected interests of

society, and make a clear distinction between public policy and public security. The latter

cannot be extended to measures that should be covered by the former. Certain Member

(Article 6 G zur Änderung des Zwölften Buches Sozialgesetzbuch und weiterer Vorschriften),

BGBl. I, p. 2557,

Paragraph 2(2) no. 1a.

120

The ‘Immigration (European Economic Area) (Amendment) (No.3) Regulations 2014’, Government Journal SI

2014/2761.

121

Ibid.

122

O’Brien, C., ‘Politically Acceptable Poverty’, (2014)

Journal of Child Poverty Action Group,

no. 149 Poverty, p.

15.

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

States such as

Poland

failed to define sufficiently what it covered under the ground of

public security as its national law listing the grounds of expulsion does not make a clear

distinction between what constitutes public security, national defence and national

security

123

Tsakouridis

124

, the CJEU clarified the concept of ‘imperative grounds of public security’

in that it presupposes that the threat to public security is of a particularly

high degree of

seriousness,

which could be the case for trafficking in narcotics as part of an organised

group. In addition, the conduct of the person concerned must represent a

genuine and

present threat:

the expulsion measure cannot be based on the existence of previous

criminal convictions or considerations of general prevention. The national authorities must

undertake an

individual examination

of the specific case, in which they must assess

whether the measure contemplated is proportionate to the aim pursued, in light of the

nature and seriousness of the offence committed, the duration of residence in the host

Member State, the period which has passed since the offence was committed and the

conduct of the person concerned during that period, and the solidity of the social, cultural

and family ties with the host Member State. In the case of an EU citizen who has lawfully

spent most or even all of his childhood and youth in the host Member State, the expulsion

has to be based on even more robust grounds.

Regarding the same issue, the Court stated that Member States may regard criminal

offences which are covered by the concept of ‘particularly serious crime’ referred to in the

TFEU

125

, as justifying the deportation of EU citizens who have lived for more than 10 years

in the host Member State. This is the case for sexual exploitation of children, for example.

However, such offences may justify an expulsion measure only if the individual concerned

represents a genuine and present threat affecting one of the fundamental interests of

society or of the host Member State, which implies, in general, that the individual has a

propensity to act in the same way in the future

126

Spain,

the High Regional Court of Castilla-León ruled that a citizen who has been

detained more than 69 times (26 of them in the last eight months

127

) can be deemed as

a direct threat to public security and be expulsed on this basis. At the same time, Article

27(2) of the Directive and the Communication of the Commission state that ‘even multiple

convictions do not suffice

without further evidence to show that the person’s presence

constitutes a continuing threat to public security’

128

. In

France,

the legislation does not

include a provision explicitly stating that previous criminal convictions cannot constitute a

public security

ground for taking measures to restrict a person’s free movement and

residence rights. As a consequence, previous convictions have been used to justify some

expulsions.

‘National

defence, national or public security, by means of constituting a threat to peace, humanity,

independence or defence of Poland, or due to terrorist activity’,

Act of 14 July 2006 ‘on the entry into, residence

in and exit from the Republic of Poland of nationals of the European Union Member States and their family

members’ (Ustawa

z 14 lipca 2006 roku o wjeździe na terytorium Rzeczypospolitej Polskiej, pobycie oraz

wyjeździe z tego terytorium obywateli państwa członkowskich Unii Europejskiej i członków

ich rodzin),

Journal of

Laws No. 144, item 1043, Articles 67 and 68.

124

Case C-145/09

Land Baden-Würtemberg v Panagiotis Tsakouridis

[2010] ECLI:EU:C:2010:708.

125

Article 83 TFEU.

126

Case C-348/09

P.I. v Oberbürgermeisterin der Stadt Remscheid

[2012] ECLI:EU:C:2012:300.

127

Judgment of the High Regional Court of Castilla-León (Administrative section), Case 164/2015, delivered on

30.07.2014.

128

European Commission, Communication 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, Brussels 2009, COM(2009) 313 final, available at:

http://eur-lex.europa.eu/legal-

content/EN/TXT/PDF/?uri=CELEX:52009DC0313&from=EN , p. 12.

123

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regulations and administrative guidance on public security explicitly states previous

criminal convictions must not be the sole justification for expelling an EU citizen from the

UK. National courts accept that activity triggering public security grounds does not have

to be criminal, they have held that it will rarely be permissible to refuse to admit an

individual in relation to activity that is not even unlawful under UK law

129

Belgium,

the law does not encompass a list of offences which constitute a threat to

public security

130

. However, it explicitly states that the existence of previous convictions

cannot be the sole justification for deciding on an expulsion. In addition, since 2014 the

authorities do not have complete discretion as they are required to take

into account

specific criteria -

the length of stay in Belgium, age, health, family and economic

situation, level of social and cultural integration in Belgium and strength of ties with the

country of origin - when taking a decision to expel an EU citizen on grounds of public

security

131

The

Italian

legislation in respect of expulsions has been considerably amended so that

the imperative ground of public security has been better defined

132

. Furthermore, the

legislation clearly highlights that ‘previous

criminal convictions decided by Italian or foreign

judges, for one or more intentional crimes, committed or attempted against the life or

health of people, together with preventive measures or expulsion orders decided by foreign

authorities, will be taken into account’

133

. However, the references made to a number of

other provisions (contained in Laws, Decrees, Codes, Articles, etc.) make it difficult to

identify the crimes for which an EU national may be expelled. Such legal uncertainty might

have serious consequences as this may lead to arbitrary decisions.

2.3.

CJEU interpretation of the Directive

The CJEU has developed a large body of case-law interpreting the provisions of Directive

2004/38/EC. A search of

the CJEU website of judgments including ‘Directive 2004/38/EC’

in their texts yields 76 results, which shows how active the CJEU has been regarding the

Directive. This section only reviews key cases of the CJEU interpreting the Directive, which

have not been mentioned above under section 2.2.4 on topical transposition issues.

GW (Netherlands)

[2009] UKAIT 50, concerning the expression of views that Islam should not be tolerated or

followed.

130

Advokatfirmaet Simonsen Vogt Wigg AS, ‘Legal study on Norway’s obligations under the EU Citizenship

Directive 2004/38/EC’ (2016),

p. 297.

131

Act of 15 December 1980 ‘on access to the territory, residence, settlement and removal of foreigners’,

Government JournalC- 14584, article

11 paragraph 2 a; Act of 19 March 2014 ‘amending the Act of 15 December

1980 concerning access to the territory, residence, settlement and removal of foreigners, Government Journal

C- 14584, article 45.

132

‘Imperative

grounds of public security exist where the behaviour of the person constitutes a genuine, effective,

and serious threat affecting the fundamental human rights or public safety, making his/her expulsion urgent

because his/her stay is incompatible with orderly society’.

Act of 14 July 2006 ‘on the entry into, residence in

and exit from the Republic of Poland of nationals of the European Union Member States and

their family members’

(Ustawa

z 14 lipca 2006 roku o wjeździe na terytorium Rzeczypospolitej Polskiej, pobycie oraz wyjeździe z tego

terytorium obywateli państwa członkowskich Unii Europejskiej i członków ich rodzin),

Journal of Laws No. 144,

article 68.

133

Legislative Decree 6 February 2007, n.30, Implementation of the European Directive in the rights of citizens

of Union and their family members to move and reside freely within the territory of member states (Attuazione

della direttiva 2004/38/CE relativa

al diritto dei cittadini dell’Unione e dei loro familiari di circolare e di soggiornare

liberamente nel territorio degli Stati membri),

Official Journal n. 72 of 27 March 2007, article 20(3).

129

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

One of the CJEU key case is the

Metock

decision

134

, which concerned four TCN married EU

citizens resident in

Ireland.

The Irish national authorities rejected their applications for

residence cards on the ground that they did not satisfy the condition of prior lawful

residence in another Member State laid down in Irish law. In other words, Ireland, in this

case, required TCN family members to have previously resided in another Member States.

Other Member States have applied similar restrictions (e.g.

the UK).

The CJEU clarified

that it makes no difference whether nationals of TCN countries who are family members

of an EU citizen have entered the host Member State before or after becoming family

members of that EU citizen. In fact, the refusal of the host Member State to grant family

members a right of residence is equally liable to discourage the EU citizen from continuing

to reside in that Member State

135

. Therefore, there is

no requirement of prior lawful

residence

in the host Member State for TCN family members

136

On the other hand, the CJEU took a restrictive view of the obligation for Member States to

facilitate entry and residence for: a) dependents or members of the household of EU

citizens having the primary right of residence, or where serious health grounds strictly

require the personal care of the family member by the Union citizen; b) the partner with

whom the Union citizen has a durable relationship, duly attested

137

. The CJEU stated in

the

Rahman

case

138

that

each Member State has wide discretion

as regards the

selection of the factors to be taken into account to select the other beneficiaries of the

Directive

139

. Nonetheless, the host Member State must ensure that its legislation contains

criteria which are consistent with the normal meaning of the term ‘facilitate’ and of the

words relating to dependence used in Article 3(2), and which do not deprive that provision

of its effectiveness

140

However, this

discretion is not unlimited.

Even before the adoption of Directive

2004/38/EC, the CJEU stated that the right of the child of a migrant worker to pursue,

under the best possible conditions, his/her education in the host Member State necessarily

implies that the child has the right to be accompanied by his/her primary carer.

Accordingly, the child’s carer should be able to reside with the child in that Member State

during his/her studies

141

. In the

Zambrano

142

case, the CJEU required Member States to

account for the interests of EU citizens who are children even if they have not yet exercised

their free movement rights. Accordingly, a Member State may not refuse a right of

residence to a TCN upon whom his EU citizens children

are dependent, ‘in so far as such

decisions deprive those children of the genuine enjoyment of the substance of the rights

attached to the status of a

European Union citizen’

143

In the

Iida

case

144

, the TCN spouse of a German citizen was living in

Germany

while the

EU citizen was residing in Austria, which raised residence rights issues. The Court found

that the TCN separated spouse of an EU citizen cannot claim residence as a family member

on the basis of the Directive if he/she has not accompanied or joined the EU citizen in a

Member State other than that of which the citizen is a national

145

. The CJEU later clarified

134

135

Case C-127/08

Metock

[2008] ECLI:EU:C:2008:449, at para. 30.

Ibid at para. 92.

136

Ibid, at para. 80.

137

Article 3 (2) Directive 2004/38.

138

Case C-83/11

Rahman

[2012] ECLI:EU:C:2012:519.

139

Ibid, at para. 24.

140

Ibid.

141

Case C-413/99

Baumbast

[2002] ECLI:EU:C:2002:493, at para 73.

142

Case C-34/09

Ruiz Zambrano

[2011] ECLI:EU:C:2011:124.

143

Ibid, para 45.

144

Case C-40/11

Iida

[2012] ECLI:EU:C:2012:691..

145

Ibid.

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O and B

146

that where a Union citizen has created or strengthened a family life with a

third‑country national during genuine residence, pursuant to Article 7 and Article 16 of the

Directive, in a Member State other than that of which he is a national, the provisions of

that Directive apply by analogy where that Union citizen returns, with the family member

in question, to his Member State of origin. However, the cumulative effect of various short

periods of residence such as weekends or holidays spent in the host Member State may

not create a derived right of residence for a TCN family member of an EU citizen

147

With regard to the term ‘legal residence’ for the purpose of the acquisition of a right of

permanent residence, the CJEU interpreted it as a period of residence which complies with

the conditions laid down in the Directive

148

. Consequently, a period of residence which

complies with the law of a Member State but does not satisfy those conditions cannot be

regarded as a ‘legal’ period of residence within the meaning of the Directive. On the other

hand, the CJEU addressed the situation of EU citizens who are nationals of a Member State

that acceded to the EU after they started residing in another Member State. The CJEU

established that the period in which the EU citizen resided in another Member State before

the accession of the Member State of their nationality must be taken into account in

calculating the period required for the acquisition of a right of permanent residence

149

. The

opposite solution could be adopted only in the case of specific provisions in the Act of

Accession.

For the purposes of obtaining permanent residence status, the Court also stated that a

third-country national may only count the periods spent with the EU citizen for the

purposes of the acquisition of a right of permanent residence. In this case, the periods

during which he/she had not resided with the citizen because of the

TCN’s

imprisonment

in the host Member State could not be taken into account for that purpose. This is due to

the fact that the EU legislature made the acquisition of the right of permanent residence

subject to the integration of the person concerned in the host Member State. The

imposition of a prison sentence by the national court shows that the person did not adhere

to the values expressed by the host Member State in its criminal law. For the same

reasons, the Court found that the continuity of residence of five years is

interrupted by

periods of imprisonment

in the host Member State. As a consequence, the periods which

precede and follow the periods of imprisonment may not be added up to reach the

minimum period of five years required for the acquisition of a permanent residence permit.

The same applies for the calculation of the 10-year period of residence necessary to

acquire enhanced protection against expulsion

150

In the

Ogieriakhi

case

151

, the Court held that periods spent in a Member State but not

living with a Union citizen, because the couple, although not divorced, was separated,

count for the purpose of a family member obtaining a permanent residence status. The

Court stated that the marital relationship cannot be regarded as dissolved as long as it

has not been terminated by the competent authority. Consequently, the spouse does not

necessarily have to live permanently with the Union citizen in order to hold a derived right

of residence

152

Case C-456/12

O. v Minister voor Immigratie, Integratie en Asiel and Minister voor Immigratie, Integratie en

Asiel v B

[2014] ECLI:EU:C:2014:135.

147

Ibid, para 59.

148

C-424/10

Ziolkowski and Szeja

[2011] ECLI:EU:C:2011:866.

149

Ibid.

150

C-378/12 and C-400/12

Onuekwere

[2014] ECLI:EU:C:2014:13.

151

Case C-244/13

Ogieriakhi

[2014] ECLI:EU:C:2014:2068.

152

Ibid at para. 37.

146

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

ANALYSIS OF THE PRIMARY BARRIERS TO THE RIGHT

TO ENTRY

KEY FINDINGS



EU citizens

experienced few obstacles in exercising their entry rights within the

EU. These include the obligation to report their presence in the Member State within

an unreasonable period of time. Also, in some Member States as in the UK, ID cards

have been rejected and passports have been required. There is also no appeals

mechanism against refusal of entry in Ireland.

Family members,

in particular TCN family members, encounter a number of

barriers in exercising their right of entry, particularly in relation to the issuance of

visas. These include incorrect implementation of the facilities to issue visas (e.g.

excessive delays and visas not being issued free of charge) and refusal of the

accelerated procedure. Visas are also often refused on invalid grounds or without

a justified reason. There are often also excessive documentation requirements to

obtain a visa and scarce and confusing information is available regarding visas.

Immigration authorities in some Member States are also unaware of Decision

565/2014 abolishing the visa requirement for TCN family members who hold a valid

residence permit issued by certain Member States (e.g. Cyprus).



This section provides information on the recurring obstacles encountered in practice by EU

citizens and/or their TCN family members in gaining entry to the EU Member States. The

information collected is based on the research carried out in all the Member States.

Complaints made to the Your Europe Advice Service, petitions made to the European

Parliament, case law and existing literature were also reviewed for the purpose of this

research. It is worth repeating here that the main challenge encountered in drafting this

section relates to the difficulties in getting systematic data or information on the

implementation of certain

aspects of Directive 2004/38/EC’s implementation and in

particular on decisions related to the right to entry or residence and their justification.

Access to publicly available sources of data and information on the abovementioned issues

does not exist in most Member State so the information provided in this section has been

obtained through complaints, petitions or stakeholder interviews.

3.1.

EU Legislation

Article 5

of Directive 2004/38/EC sets out the right of entry for EU citizens and their TCN

family members to enter an EU Member State. The right to entry covers:

Right of entry

EU citizens



The right to enter a Member State

with a valid identity card

or passport.

visa requirements

or equivalent may be imposed on them.

Where an EU citizen does not have the necessary travel documents, the Member

State must, before refusing entry, give them

every reasonable opportunity to

obtain the necessary documents

or prove by other means that they are covered

by the right of free movement and residence.

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TCN family members of EU citizens



TCN family members have the right to enter a Member State

with a valid

passport

TCN family members can only be required to have an

entry visa

in accordance

with Regulation 539/2001 (the Visa List Regulation as amended) or national law.

Possession of a valid residence card exempts TCN family members from this visa

requirement.

Member States must provide

every opportunity

for TCN family members to obtain

the necessary visas, including issuing visas

free of charge, as soon as possible

and through an

accelerated procedure.

An entry or exit stamp must not be put in the passport of TCN family members with

a residence card.

Where a TCN family member does not have the necessary travel documents or

visa, the Member State must, before refusing entry, give them every reasonable

opportunity to obtain the necessary documents or prove by other means that they

are covered by the right of free movement and residence.



In addition, the host Member State may require the EU citizen and his/her family members

to report their presence within its territory within a reasonable and non-discriminatory

period of time. Failure to comply with this requirement may result in proportionate and

non-discriminatory sanctions.

The CJEU, in the case of

Commission v Spain

153

, held that TCN family members not only

have the right to enter the territory of the Member State, but also have the right to obtain

an entry visa

154

. This distinguishes them from other third country nationals, who have no

such right

155

Moreover, in the case of

McCarthy and others

156

, the CJEU held that where TCNs hold a

residence card of a family member of an EU citizen, the UK cannot make their right of

entry subject to the requirement that they must first obtain a visa.

3.2.

EU citizens

As mentioned above, the Directive stipulates that EU citizens only need a valid identity

card or passport in order to enter a Member State and that no entry visa or equivalent

formality is required, regardless of the purpose of their entry or their status as workers.

There are very few reports of EU citizens experiencing obstacles in gaining entry to Member

States. Most obstacles to entry rights occur in respect of visas for TCN family members

(see Section 4.2.3 below for further discussion). The main recurring obstacle for EU

Case C-503/03

Commission v Spain

[2006] ECLI:EU:C:2006:74.

Ibid at para 42; 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, COM(2009) 313 final, 2

July 2009, available at:

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A52009DC0313.

155

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, COM(2009) 313 final, 2 July 2009,

available at:

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A52009DC0313.

156

Case C-202/13

McCarthy and others

[2014] ECLI:EU:C:2014:2450.

154

153

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

citizens in exercising their right of entry to some EU Member States is the obligation to

report their presence to the authorities, as described below.

3.2.1.

Obligation to report their presence in the Member State within an

unreasonable period of time

Article 5(5) of the Directive states that Member States may require an individual to report

his/her presence within its territory within a reasonable and non-discriminatory period of

time. In practice, some Member States provide unreasonably short periods of time for EU

citizens to report, with failure to do so entailing a sanction. Such practices are not in line

with the Directive’s requirements of reasonableness and

proportionality. This issue has

been reported in at least two Member States (RO and

LT).

Relevant examples: obligation to report their presence



Romania,

EU citizens must report their presence on the territory

within 15

days

of arrival. EU citizens who do not comply within the prescribed period are

deemed guilty of an offence and

fined.

These measures might not comply with the

Directive as they appear disproportionate and involve the penal system in what is

essentially an administrative matter

157

. For example, an Italian citizen was

threatened to be highly fined (€10,000) for not having reported his presence in

Romania

158

Lithuania

requires individuals to report their presence on the territory

within

seven days

of arrival. This timeframe may not be considered reasonable according

to the Directive

159

. While this issue was already raised in 2009, no changes have

been adopted and the requirement is still compulsory.



3.2.2.

Others

Some other obstacles were experienced by EU citizens in exercising their right of entry in

the Member States. While these are not recurrent issues across several Member States,

they are nevertheless important obstacles that EU citizens are facing.

For example, some reports showed that the

authorities have refused to recognize

identity cards from other Member States. Such has been the case with Greek ID Cards,

which were rejected by the UK authorities and a passport was required

160

. This is in breach

of Article 5(1) of the Directive, which stipulates that EU citizens have the right to enter a

Member State with a valid identity card or passport.

European Parliament, ‘Comparative study on the 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’,

2009,

410.650,

available

at:

http://www.europarl.europa.eu/RegData/

etudes/etudes/join/

2009/410650/IPOL-JURI_ET(2009)410650_EN.pdf, p.174.

158

Your Europe Advice, Quarterly Feedback Report No. 7, Quarter 1/2014, (January-March), p.38.

159

European Parliament, ‘Comparative study on the 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’,

2009,

410.650,

available

at:

http://www.europarl.europa.eu/RegData/

etudes/etudes/join/

2009/410650/IPOL-JURI_ET(2009)410650_EN.pdf,p.174.

160

Your Europe Advice, Quarterly Feedback Report No. 12, Quarter 2/2015 (April-June) p.19; Your Europe

Advice, Quarter Feedback Report No. 14, Quarter 4/2015 (October-December) p. 22.

157

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There is no appeals mechanism against refusal of entry of EU citizens at an airport, ferry

port or at the land border in

Ireland

161

. While there is an obligation to provide, in writing,

the reasons for refusing entry, the decision of an immigration officer is not subject to

appeal

162

. A person seeking to challenge such a refusal would have to resort to judicial

review proceedings before the High Court, which would have to be initiated from abroad

and could not result in a wrongful decision being replaced by a lawful one. In cases where

the High Court quashes a wrongful refusal of entry, the matter is referred back to the

original decision maker for a new decision, without any guarantee that the second decision

would permit entry to the State

163

. These elements raise serious doubts about compliance

with Article 30(3) (the notification of the decision refusing entry must specify the appeal

court or administrative authority) and Article 31(1) (the person concerned must have

access to judicial and/or administrative redress procedures of any refusal of entry decision)

of the Directive.

3.3.

Family members of EU citizens

Family members encounter a number of barriers in exercising their right of entry. TCN

family members of EU citizens, in particular, face obstacles in having their visas issued.

The main points of concern here are the correct implementation of the facilities to issue

visas and the accelerated procedure. In addition, many TCN family members face

bureaucratic restrictions in the form of excessive formalities or lack of correct application

of EU law by immigration authorities. In a number of cases, this has led to visas being

refused on invalid grounds or without a justified reason. Such obstacles have been

persistently reported in a large number of Member States.

3.3.1.

Accelerated procedure for entry visas refused

The right to an accelerated procedure for visas has been refused to TCN family members

in at least nine Member States (e.g.

BE, EE, ES, IE, IT, MT, PT, SK, SI)

164

. This is not

only in breach of the right to an accelerated procedure but also may result in numerous

consequences for TCN family members at risk of being refused entry to a Member State.

The barriers identified either reflect a systematic lack of application of the accelerated

procedure or persistent refusals to apply the accelerated procedure.

Relevant examples: Accelerated procedure for entry visas refused



Ireland,

there is a failure to provide visa processing facilities at airports

165

. For

example, the procedures employed at Dublin Airport for family members of EU

nationals lack any facility whereby a visa, if actually necessary, could be issued

immediately. The High Court determined that the failure to provide such visas at

Dublin Airport, meaning that a TCN spouse could only apply for a visa online from

abroad ‘clearly is a manifest breach of Article 5(2), since it could hardly be said

that the State has afforded such persons every facility to obtain the necessary

161

Groenendijk, K., et al., European Report on the Free Movement of Workers in Europe in 2012-2013, 2014, p.

162

S. Mullaly, F. O’Reagan, H. Bekker, ‘Report on the Free Movement of Workers in Ireland

in 2012-2013’,

July

2013, p. 31.

163

Ibid.

164

Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

165

Your Europe Advice, Quarterly Feedback Report No. 6, Quarter 4/2013 (October-December), p. 22.

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

visas’

166

. The State was also found to be in breach of the obligation in Article 5(4)

of the Directive to afford every reasonable opportunity to such persons to obtain

the necessary documents to corroborate or prove by other means that he or she

was covered by the right of free movement and residence provided for by the

Directive

167

. The visa regime has remained unchanged since the above judgment

was delivered on 3 June 2011, with Ireland, thus, remaining in breach of the

Directive in this instance

168



Malta,

the Maltese embassy does not allow family members of EU citizens to

use the accelerated procedure even though they fulfil the conditions

169

Portugal,

a case has been reported of a South African citizen married to a

Portuguese national who wanted to travel to Portugal with her husband. The

Portuguese Consulate in South Africa did not adhere to the requirements laid down

in the Directive for accelerated visa application procedures for EU family

members

170

The

Slovak

embassy in London refused to issue a Schengen visa under the

accelerated procedure for a short-term visit to family, to the TCN spouse of a Slovak

citizen returning home

171



In some cases, the issues related to the lack of accelerated procedures have been resolved

following action from the

European Commission.

In 2013, for example, the European

Commission launched infringement proceedings against Belgium for its failure to provide

a facility for the entry and residence of TCN family members of Union citizens

172

. Belgium

adopted new legislation in 2014 to incorporate the requirement to grant TCN family

members every facility to obtain visas, including issuing them free of charge and granted

under an accelerated procedure.

3.3.2.

Excessive delays in obtaining a visa

TCN family members have frequently experienced excessive delays in obtaining a visa in

at least 11 Member States (e.g.

BE, CZ, DE, EL, HU, IE, IT, MT, NL, SE, UK)

173

, with

reported delays from 12 weeks to several months

174

. While the Directive stipulates that

these visas must be issued as soon as possible, this allows for a margin of interpretation.

In practice, the accelerated timeframe set in national legislation may start from the

moment the application is complete. However, between the first step in the application

process and the moment the application is complete, a few weeks or months may pass

while the visa applicant obtains all the requisite documentation, depending on the

Raducan v Minister for Justice, Equality and Law Reform [2011] IEHC 224, 3 June 2011; S. Mullaly, F.

O’Reagan, H. Bekker, ‘Report on the Free Movement of Workers in Ireland in 2012-2013’, July 2013, p. 32.

167

See, e.g., Hilkka Becker ‘Immigrants and the Law in Ireland’, address to the Burren Law School,

4 June 2013.

168

Raducan v Minister for Justice, Equality and Law Reform [2011] IEHC 224, 3 June 2011; S. Mullaly, F.

O’Reagan, H. Bekker, ‘Report on the Free Movement of Workers in Ireland in 2012-2013’, July 2013, p. 32.

169

Your Europe Advice, Quarterly Feedback Report No. 7, Quarter 1/2014, (January-March), p 10; Your Europe

Advice, Quarterly Feedback Report No. 14, Quarter 4/2015 (October-December), p 27.

170

European Parliament, ‘Comparative study on the 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’,

2009,

410.650,

available

at:

http://www.europarl.europa.eu/RegData/etudes/

etudes/join/2009/410650/IPOL-JURI_ET(2009)410650_EN.pdf,p.197.

171

Your Europe Advice, Quarterly Feedback Report No. 13, Quarter 3/2015 (July-September), p.53.

172

European Commission,

February infringements package: main decisions,

21 February 2013.

173

Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

174

Your Europe Advice, Quarterly Feedback Report No. 14, Quarter 4/2015 (October-December), p. 18.

166

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__________________________________________________________________________________________

administrative and judicial procedures they need to engage with. This can entail a very

long process for these families

175

3.3.3.

Visas not issued free of charge

In at least seven Member States (e.g.

CY, DE, ES, IT, MT, NL, UK)

176

, TCN have been

required to pay for their visas. For example, in

Malta,

TCN family members were not

allowed to apply for a visa free of charge on the basis that the right of family members to

obtain a visa free of charge only applies to EU citizens who were married within the EU

177

3.3.4.

Refusal of visa on invalid grounds or without a justified reason

TCN family members have been denied a visa on invalid grounds, or without a justified

reason, in at least 11 Member States (e.g.

BE, CY, DE, EL, ES, FI, IE, IT, NL, SI, UK)

178

The case studies below demonstrate that these refusals are in breach of Article 27 of the

Directive according to which the freedom of movement of EU citizens and their family

members may only be restricted on grounds of public policy, public security or public

health.

Relevant examples: Refusal of visa on invalid grounds or without a

justified reason



Belgium,

in 2014, the TCN registered partner of a British citizen was refused a

visa on the incorrect basis that Belgium does not recognise registered partnerships

from the UK because it does not issue an apostille

179

Ireland,

refusals to process visa applications without a justified reason were

also reported

180

. For example, one complaint concerned the TCN family member of

a British citizen who travelled to Ireland with his British spouse and was refused

entry without a justified reason, despite his exemption from entry visa

requirements under the Directive. As a result, he was sent back to the country of

departure without his family, incurring a loss of more than EUR 3,000

181

the Netherlands,

visas have been refused on invalid grounds (e.g. for non-

recognition of documents and for other reasons, with one visa refused on the

suspicion that the TCN wife of a German citizen had no intention of leaving the

Netherlands

182

Spain,

in many cases a visa is denied without a transparent procedure, as the

decision is made at the discretion of the individual civil servant in charge of each

case

183



Myria, ‘2015

Migration in numbers and in rights’

(2016),

p. 101.

Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

177

Your Europe Advice, Quarterly Feedback Report No. 11, Quarter 1/2015 (January-March), p 17.

178

Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

179

Your Europe Advice, Quarterly Feedback Report No. 9, Quarter 3/2014 (July-September), p. 18.

180

Your Europe Advice, Quarterly Feedback Report No. 14, Quarter 4/2015 (October-December), p 10; Your

Europe Advice, Quarterly Feedback Report No.2, Quarter 3/2012 (July-September), p. 11.

181

Your Europe Advice, Quarterly Feedback Report No. 10, Quarter 4/2014 (October-December), p. 20.

182

Your Europe Advice, Quarterly Feedback Report No.8, Quarter 2/2014 (April-June), p.18.

183

Citizens without Borders, Free Movement and Residence in the European Union: a Challenge for European

Citizenship, 31 May 2013, available at:

http://www.meltingpot.org/IMG/pdf/citizien_inglese.pdf.

175

176

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3.3.5.

Excessive documentation required to obtain a visa

Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

In a large number of Member States (e.g.

AT, BE, BG, CZ, DE, EE, ES, EL, FI, FR, IE,

IT, MT, NL, PL, PT, UK)

it was reported

184

that TCN family members encounter frequent

obstacles in obtaining a visa as a result of the national authorities asking for excessive

documentation in order to issue the visa. Such requirements are at odds with the

Directive’s requirement to facilitate entry of EU citizens’ family members.

Relevant examples: Excessive documentation required to obtain a

visa



Belgium, in 2014,

specific travel booking details were required of a couple to

prove that they were travelling together in order to obtain a visa

185

. Also in Belgium,

a TCN family member applying for a visa was required to provide proof of resources

for the duration of a trip in addition to the letter of support from her husband in

which he stated that he would fund the trip

186

Italy,

numerous documents and information are requested in order for a family

member to obtain an entry visa, e.g. healthcare insurance

187

, proof of

accommodation

188

, invitation from a national of the country concerned

189

, flight

details

190

, a hotel reservation

191

, a sum of money available in a bank account or

other sufficient resources

192

, residence card

193

, or other documents (sometimes

even for short visits to family or for holidays)

194

. Family members are also asked

to have a passport with at least three months validity after the intended date of

return

195

There are frequent complaints that

Maltese

authorities demand significant

amounts of documentation from people applying for visas. One complainant stated

that he had to provide proof of return flights, travel insurance and accommodation

receipts

196

A petition was made to the European Parliament concerning the fact that his

Colombian wife was unable to obtain a visa to travel with him to

Spain

for a

holiday. The Spanish embassy in Bogotà required additional documentation that

the petitioner believes would only apply for a non-family member visa application.



Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

Your Europe Advice, Quarterly Feedback Report No. 9, Quarter 3/2014 (July-September) , p. 18.

186

Ibid.

187

Your Europe Advice, Quarterly Feedback Report No. 4, Quarter 2/2013 (April-June), p.18; Your Europe Advice,

Quarterly Feedback Report No. 5, Quarter 3/2013 (July-September), p.20.

188

Your Europe Advice, Quarterly Feedback Report No. 6, Quarter 4/2013 (October-December), p.22; Your

Europe Advice, Quarterly Feedback Report No. 4, Quarter 2/2013 (April-June),p.18-19.

189

Your Europe Advice, Quarterly Feedback Report No. 6, Quarter 4/2013 (October-December),p.22; Your Europe

Advice, Quarterly Feedback Report No. 4, Quarter 2/2013 (April-June), p.18.

190

Your Europe Advice, Quarterly Feedback Report No. 6, Quarter 4/2013 (October-December),p.22; Your Europe

Advice, Quarterly Feedback Report No. 5, Quarter 3/2013 (July-September), p.20; Your Europe Advice, Quarterly

Feedback Report No. 4, Quarter 2/2013 (April-June), p.18-19.

191

Your Europe Advice, Quarterly Feedback Report No. 5, Quarter 3/2013 (July-September), p.20.

192

Your Europe Advice, Quarterly Feedback Report No. 6, Quarter 4/2013 (October-December), p.22; Your

Europe Advice, Quarterly Feedback Report No. 4, Quarter 2/2013 (April-June), p.18.

193

Your Europe Advice, Quarterly Feedback Report No. 5, Quarter 3/2013 (July-September), p.20.

194

Your Europe Advice, Quarterly Feedback Report, Quarter 3/2015 (July-September), p.18; Your Europe Advice,

Quarterly Feedback Report No. 12, Quarter 2/2015 (April-June), p.16; Your Europe Advice, Quarterly Feedback

Report No. 6, Quarter 4/2013 (October-December), p.22-23; Your Europe Advice, Quarterly Feedback Report

No. 4, Quarter 2/2013 (April-June), p.16 and 18.

195

Your Europe Advice, Quarterly Feedback Report No. 8, Quarter 2/2014 (April-June), p.19.

196

Your Europe Advice, Quarterly Feedback Report No. 7, Quarter 1/2014, (January-March), p 10; Your Europe

Advice, Quarterly Feedback Report No. 14, Quarter 4/2015 (October-December), p. 10.

185

184

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The petitioner sought assistance from SOLVIT but this was to no avail. The

European Commission examined the case and advised that the petitioner should

take any necessary legal routes on a national level in order to protect the rights he

believes have been infringed

197

3.3.6.

Scarce and confusing information regarding visas

At least 11 Member States (e.g.

CY, CZ, DE, ES, EL, FI, IE, IT, PL, PT, RO)

198

reported

a lack of available information about visas, or that confusing information was provided to

TCN family members. This barrier is key as providing incorrect or confusing information

can effectively lead family members to decide not to exercise their rights or to be

prevented from exercising their rights to entry as a result of incorrect information.

Examples are provided in the box below.

Relevant examples: Lack of information or confusing information



Portugal,

it seems that citizens are still receiving confusing information from

the embassies or consulates abroad on the type of entry visa needed by their TCN

spouses/family members. In particular, information about visa exemptions is

withheld

199

Romania,

some national authorities wrongly informed citizens that TCN family

members do not need an entry visa. They were then denied boarding onto a flight

to Romania

200

A Nepali petitioner, who cohabits with his Polish partner, was informed by

authorities at the German embassy in London that he would need to obtain a visa

in order to travel to

Germany.

He was told that for visa-free access, he would need

a document attesting to their relationship, such as a marriage certificate. The

European Commission held that the information provided to the petitioner by the

German authorities does not correctly reflect the provisions made both in Directive

2004/38/EC and German law

201

Others



3.3.7.

One important issue concerning

Cyprus

is that Cypriot immigration police are not aware

of Decision 565/2014

202

, which abolishes the visa requirement for TCN family members

who hold a valid residence permit issued by Bulgaria, Romania or Croatia and who wish to

travel to Cyprus

203

. It is, therefore, an obstacle for these individuals who wish to enter

Cyprus. It is also in breach of Article 5(2) of the Directive, which states that possession of

a valid residence card exempts TCN family members from the visa requirement. This had

been reported as an issue also in Romania, though it appears to have been resolved.

197

198

Petition No 0259/2012 to the European Parliament.

Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

199

Your Europe Advice, Quarterly Feedback Report No.4, Quarter 2/2013, (April-June), p.16.

200

Your Europe Advice, Quarterly Feedback Report, No. 7, Quarter 1/2014, (January-March), p.25.

201

Petition No 1623/2014 to the European Parliament.

202

Decision No 565/2014 of the European Parliament and of the Council of 15 May 2014 introducing a simplified

regime for the control of persons at the external borders based on the unilateral recognition by Bulgaria, Croatia,

Cyprus and Romania of certain documents as equivalent to their national visas for transit through, or intended

stays on, their territories not exceeding 90 days in an 180-day period and repealing Decisions No 895/2006/EC

and No 582/2008/EC, OJ L 157, 27 May 2014, available at:

http://eur-lex.europa.eu/legal-

content/EN/TXT/?uri=uriserv%3AOJ.L_.2014.157.01.0023.01.ENG.

203

Your Europe Advice, Quarterly Feedback Report No. 9, Quarter 3/2014 (July-September), p. 21.

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

ANALYSIS OF THE PRIMARY BARRIERS TO THE RIGHT

TO RESIDENCE

KEY FINDINGS



EU citizens and their TCN family members experience a number of

bureaucratic

issues

in obtaining residence cards/registration certificates. For example,

excessive delays have been reported in a number of Member States to obtain a

residence card/registration certificate. National authorities also often demand

excessive documentation in order to issue a residence card/registration certificate.

Another significant issue reported in a number of Member States is that

invalid

grounds

are often used

to justify denials

of the right to reside. This is particularly

the case for permanent residency applications. For example, Romanian and Polish

citizens who have lived in

Italy

for more than five years are frequently refused

permanent residency status on the basis that they are unemployed.

There is also a

lack of sufficient information

available regarding the right of

residence in a number of Member States. A specific issue concerns inadequate and

contradictory information provided by national authorities regarding long-term

resident status.

A few Member States adopt a restrictive interpretation of the proof of health

insurance necessary to obtain a residence card.

TCN family members can also face a number of

other obstacles,

namely the

obligation to ‘legalise’ marriage certificates

in order to obtain a residence card;

complications with the renewal of residence permits; language requirements in

order to obtain a residence certificate and the retention of passports when an

application is being processed for a residence card.

For as long as the right of residence is not fully recognised, EU citizens and their

TCN family members are often denied access to social benefits and to employment.

They may also face problems in accessing certain services (e.g. opening a bank

account).



This section provides information on the recurring practical obstacles EU citizens and their

family members experience in exercising their right of residence in the Member States.

4.1.

EU Legislation

Directive 2004/38 sets out the following rules concerning the right of residence in its

Articles 6 and 7, as well as in others:

Right of residence



Up to three months:

EU citizens and their family members enjoy the right to

reside in another Member State without any conditions or formalities

204

More than three months:

The right of residence is subject to certain conditions,

depending on the status of the EU citizens and their family members in the host

Member States. Those who are

employed or self-employed

do not need to meet

204

Article 6 of Directive 2004/38/EC.

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Policy Department C: Citizens' Rights and Constitutional Affairs

__________________________________________________________________________________________

any other conditions.

Students

and other people

not working for payment,

such

as those in retirement, must have

sufficient resources

for themselves and their

family members, so as not to become a burden on the host State’s social assistance

system, and must also have comprehensive sickness insurance cover

205

. An EU

citizen who is no longer a worker or self-employed person

retains the status of

worker

or self-employed person under certain circumstances such as if he/she

were temporarily unable to work as the result of an illness or accident

206

. The host

Member State may require Union citizens to register with the relevant

authorities

207

. On the other hand, TCN family members must apply for a residence

card

208

. A residence card is issued on the presentation of certain documents by the

family member. These documents are exhaustively listed by Directive

2004/38/EC

209

. Family members may, under certain conditions, retain the right to

live in the country concerned if the EU citizen dies or leaves the country

210



Five years of continuous residence:

EU citizens and their family members who

have legally resided for a continuous period of five years in the host Member State

are entitled to the

right of permanent residence

there. The conditions

mentioned above are no longer applicable to them

211

. The right of permanent

residence is lost only in the event of more than two successive years of absence

from the host Member State

212

. When issuing a document certifying permanent

residence, the Member State must only verify the duration of residence

213

A number of cases have been brought to the CJEU regarding the right of residence and

the interpretation of such residence rights provisions of the Directive. For example, the

CJEU concluded in the cases of

Antonissen

214

Collins

215

and

Ioannidis

216

, that

jobseekers

have a right of residence in another Member State during the periods in which they seek

work

However, in

Antonissen

the CJEU held that it is not contrary to the provisions of

Community law governing the free movement of workers for the legislation of a Member

State to provide that a national of another Member State who entered the first State in

order to seek employment may be required to leave the territory of that State (subject to

appeal) if he has not found employment there after six months, unless the person

concerned provides evidence that he is continuing to seek employment and that he has a

genuine chance of being engaged

217

In relation to

retention of the right of residence,

the CJEU in

Ogieriakhi

218

and

Diatta

219

held that where a marriage breaks down and the parties separate but do not

divorce, if the EU citizen remains in the country of residence then the right of residence

205

206

Article 7 (1) of Directive 2004/38/EC.

Article 7 (3) of Directive 2004/38/EC.

207

Article 8 of Directive 2004/38/EC.

208

Article 9 of Directive 2004/38/EC.

209

Article 10 of Directive 2004/38/EC.

210

Article 12 of Directive 2004/38/EC.

211

Article 16 (1) of Directive 2004/38/EC.

212

Article 16 (4) of Directive 2004/38/EC.

213

Article 19 of Directive 2004/38/EC.

214

Case C-292/89

The Queen v Immigration Appeal Tribunal, ex parte Gustaff Desiderius Antonissen

[1991]

ECLI:EU:C:1991:80.

215

Case C-138/02

Collins v Secretary of State for Work and Pensions

[2004] ECLI:EU:C:2004:172, at para 18.

216

Case C-258/04

Office national de l’emploi v Ioannis Ioannidis

[2005] ECLI:EU:C:2005:559, at para 38.

217

Case C-292/89

The Queen v Immigration Appeal Tribunal, ex parte Gustaff Desiderius Antonissen

[1991]

ECLI:EU:C:1991:80.

218

Case C-244/13

Ewaen Fred Ogieriakhi v Minister for Justice and Equality and Others

[2014]

ECLI:EU:C:2014:2068.

219

Case C-267/83

Aissatou Diatta v Land Berlin

[1985] ECLI:EU:C:1985:67.

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

for the third country national continues: i.e. the spouses need not cohabit for the right of

residence to exist. Moreover, in the recent 2016 CJEU judgment in

Secretary of State for

the Home Department v NA

220

it was held that in the case of divorce due to domestic

violence, if the EU citizen leaves the host State before the divorce is finalised that

departure

immediately ends the TCN citizen’s status under the Directive, trumping the

retention of their right of residence that would otherwise apply during their separation and

(probably) their subsequent divorce from their spouse.

With regard to the

right of permanent residence,

the CJEU held in

Onuekwere

221

and

222

that periods spent in prison cannot be taken into account for the completion of the

five-year period.

4.2.

Recurring obstacles

From the research, the most widespread types of obstacles are:



Excessive delays;



Excessive documentation requirements;



Denial of the right of residence on invalid grounds;



Lack of information concerning the right of residence;



Restrictive interpretation of proof of health insurance.

These obstacles could lead, in the worst-case scenario, to the denial of residence rights

and of the rights which are connected to residence, such as access to social benefits. Even

when they do not lead to such a denial of rights, these obstacles impair the swift

recognition of residence rights. This leads to extra costs and time invested in

administrative procedures. Moreover, for as long as the right of residence is not fully

recognised, EU citizens and their family members are often denied access to social

benefits, and, in certain cases, access to employment. As a consequence of these delays,

they could also face problems in accessing services such as bank accounts or healthcare.

In general, this creates a situation of legal uncertainty which affects the lives of EU citizens

and their family members.

4.2.1.

Excessive delays

EU citizens and their family members report

excessive delays in obtaining a residence

card/registration certificates

in at least twelve Member States: (e.g.

AT, BE, CY, CZ,

DK, FR, IE, IT, MT, NL, SE and the UK)

223

220

221

Case C-115/15

Secretary of State for the Home Department v NA

[2016] ECLI:EU:C:2016:487.

Case C-378/12

Nnamdi Onuekwere v Secretary of State for the Home Department

[2014] ECLI:EU:C:2014:13.

222

Case C-400/12

[2014] ECLI:EU:C:2014:9.

223

Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

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Policy Department C: Citizens' Rights and Constitutional Affairs

__________________________________________________________________________________________

Relevant examples: Excessive delays



Cyprus,

applications for residence cards by TCN family members of EU citizens

can still take up to six months to be processed

224

. Moreover, considerable backlogs

as a result of the implementation of the Directive manifest in delays in making

appointments to obtain a registration certificate (delays close to 12 months)

225

A similar issue is reported for

Belgium,

where EU citizens and their family

members are sometimes required to make an

appointment

with the appropriate

local authority in order to register their residence and to apply for a residence

card

226

. The Integration and Civil Integration Agency of the Flemish Government

(Agentschap

Integratie en Inburgering)

confirms that this procedure generated

problems for EU citizens in 2015. Because of a

six-month backlog

appointments, EU citizens residing in Belgium for longer than three months did not

have proof of registration

227

In the

Czech Republic,

excessive delays are due to an insufficient number of state

officials dealing with residence permit applications. The problem of delays in issuing

residence permits for TCN family members

228

also lies with a transfer of

competence between ministries for issuing the residence card

229

.The situation has

been repeatedly criticised by the Czech Ombudsman

230

. In general, bureaucracy

represents a heavy burden for EU citizens and their family members.

EU citizens have complained that local authorities in

France

recurrently either fail

to issue, or issue with a significant delay, a certificate of registration. This has been

identified as a large-scale and systematic problem in France

231

A petitioner’s application for

a permanent residence permit in the

has taken

longer than six months to issue. The European Commission acknowledged that

delays in this process would cause distress but informed the petitioner that it

believed the problem of delays had been resolved

232

. Another petitioner complained

about the length of time it takes to be granted residency in the UK, despite fulfilling

all of the requirements. The petitioner needed to leave the UK as a matter of

urgency but could not as a result of the delay. The European Commission made

enquiries with the British authorities and according to available information were

later satisfied that the issue of delays had been resolved

233



4.2.2.

Excessive documentation requirements

National authorities demand excessive documentation in order to exercise the right of

residence in at least twelve Member States (e.g.

AT, BE, CY, ES, FR, HU, IE, IT, MT, PT,

224

Carrera, S. and Faurer Atger, A., Implementation of Directive 2004/38 in the context of EU enlargement, April

2009, Centre for European Policy Studies, Brussels, 2009, available at:

http://aei.pitt.edu/10758/1/1827.pdf,

9; Groenendijk, K., et al., European Report on the Free Movement of Workers in Europe in 2012-2013, 2014,p.

27.

225

Neergaard, C. Jacqueson, N. Holst-Christensen, Union Citizenship : development, impact and challenges, XXVI

FIDE Congress in Copenhagen 2014, Congress Publications vol. 2, DJØF Publishing, Denmark, 2014, p 392.

226

Your Europe Advice, Quarterly Feedback Report No. 4, Quarter 2/2013 (April-June), p. 25.

227

Information obtained from the Flemish Integration and Civil Integration Agency, May 2016.

228

Your Europe Advice, Quarterly Feedback Report No. 3, Quarter 1/2013 (January-March), p. 4.

229

Ibid, p. 21.

230

Citizens without Borders, Free Movement and Residence in the European Union:, a Challenge for European

Citizenship, 31 May 2013, available at:

http://www.meltingpot.org/IMG/pdf/citizien_inglese.pdf,

p 23.

231

Your Europe Advice, Quarterly Feedback Report No. 5, Quarter 3/2013 (July-September).

232

Petition No 2168/2013 to the European Parliament.

233

Petition No 1908/2012 to the European Parliament.

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SK and the UK)

234

. The documents requested in several cases go beyond the

documentation

that is needed to prove the EU citizen complies with the Directive’s

requirements.

Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

Relevant examples: Excessive documentation required



Spain

imposes an obligation for EU citizens and their family members to obtain, in

addition to the registration certificate, a Foreigner Identity Number

235

, which can

take up to six weeks to be issued. This is necessary to work, open a bank account

or register with the Spanish social security authorities. This requirement does not

seem in line with the Directive, which eliminated the requirement for residence

cards. Moreover, it seems to go against the provision that a registration certificate

or residence permit for members of the family cannot be made a precondition for

the exercise of a right or the completion of an administrative formality

236

To issue a residence card,

Irish

authorities require extra documents than those

listed by the Directive

237

: details of the occupation of the applicant, the Personal

Public Service (PPS) number

238

, the declaration of any criminal record and the

immigration history

239

Slovakia,

a 2013 amendment to the Foreigners Act has introduced an obligation

for job seekers to submit a health insurance document in order to be registered.

This does not seem in line with Directive 2004/38/EC

240

. Moreover, a case was

reported where a TCN family member of an EU citizen encountered difficulties with

the authorities because they refused to recognise the marriage certificate from

Italy. In particular, they insisted on the need to get a document apostille in a court

in Slovakia. The court has alleged that it only does this for Slovakian documents

241

France,

concerns have been raised that self-employed persons encounter

difficulties for the recognition of their right to stay. In fact, they are required to

prove their income

242

In addition, one petitioner’s spouse, a Singaporean citizen,

had her application for a French residence permit rejected twice. When it was

accepted, the petitioner claimed that the couple were asked for excessive

documentation and were also charged €106, with his spouse only receiving a

residence permit for one year. The European Commission contacted the French

authorities and it was found that, initially, there was a lack of information

confirming the petitioner’s own residence in France. When the application was

accepted, the authorities charged €106 in error and due to technical difficulties, the

residence permit was issued for only one year when it should have been for five

years. The Commission was satisfied with the French authorities’ response that the

situation would be remedied

243



Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

Número de Identificación de Extranjero or NIE.

236

Article 25 of Directive 2004/38.

237

Article 10 of Directive 2004/38.

238

The Personal Public Service Number (PPS number) is a unique reference number that helps citizens to access

social

welfare

benefits,

public

services

and

information

Ireland,

see:

http://www.citizensinformation.ie/en/social_welfare/irish_social_welfare_system/personal_public_service_num

ber.html.

239

Your Europe Advice, Quarterly Feedback Report No. 11, Quarter 1/2015 (January-March), p.32.

240

Groenendijk, K., et al., European Report on the Free Movement of Workers in Europe in 2012-2013, 2014,

p.24.

241

Your Europe Advice, Quarterly Feedback Report No. 8, Quarter 2/2014 (April-June)., p.59.

242

Ibid atp.21..

243

Petition No 1541/2012 to the European Parliament.

235

234

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__________________________________________________________________________________________

4.2.3.

Denial of the right of residence on invalid grounds

In nine Member States, invalid grounds are used to justify denials of the right to reside.

This problem is reported in at least nine Member States (e.g.

AT, BE, HR, ES, EL, FI, FR,

PL and PT)

244

. The grounds to refuse residence either relate to conditions that are not

recognised by the Directive, and therefore are not in line with the Directive, or in

interpreting the Directive’s requirements in a manner that is at odds with the Directive.

For example, in

Austria,

EU pensioners could lose their right of residence due to a lack of

resources when applying for supplementary pension benefits

245

Belgium,

refusals on invalid grounds appears to be a recurrent problem. This regards

in particular refusals of residence applications based on employment status (jobseeker,

temporary worker, and researcher) or on a lack of sufficient resources. Several cases

have been reported where EU jobseekers who have worked face problems with their right

of residence, such as temporary workers. An incident has been reported where an EU

citizen was refused registration of residence for failing to speak Flemish to the local

authority. Several cases have been reported where EU citizens looking for employment

and employed persons face problems with their right of residence. For example, an EU

citizen temporary worker was not allowed to stay unless a three-month contract could be

presented. An EU-citizen was told he could not stay in Belgium if he did not find permanent

full-time employment in a Dutch-speaking company within three months.

Regarding economic resources, a case has been reported where the Belgian authorities

refused to issue substitute registration papers to a British mother and her daughter (both

registered in Belgium) who had lost their papers unless they could prove that they had at

least EUR 10,000 in their bank account

246

Spain,

the concept of sufficient resources has been interpreted in an arbitrary manner.

Spanish Ombudsman reports over recent years have referred to several complaints from

EU citizens against a requirement for fixed and regular economic resources. EU citizens

are not in a position to obtain information beforehand on the level of resources needed to

from one case to another

247

. This adds to the situation where the right to residence is

linked to the obligation for Union citizens and family members in Spain to obtain, in

addition to the registration certificate, a

Foreigner Identity Number

(Número de

Identificación de Extranjero or NIE). The NIE is necessary for Union citizens to work, open

a bank account or register with the Spanish Social Security, which can take up to six weeks

to be issued. The problem is that in some cases, the requirements for getting the NIE

relate to having sufficient resources include having a job. This goes against the spirit of

the Directive to eradicate the requirement of residence cards and, more particularly,

against Article 25 of the Directive which provides that holding a registration certificate or

residence permit for family members cannot be made a precondition for the exercise of a

right or the completion of an administrative formality.

Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

Juravle,

C. et al. ‘A fact-finding analysis on the impact on the Member States’ social security systems of the

entitlements of non-active intra-EU migrants to special non-contributory cash benefits and healthcare granted

the

basis

residence’,

2013,

154

European

Commission,

available

at:

http://ec.europa.eu/social/main.jsp?langId=en&catId=89&newsId=1980.

246

Your Europe Advice, Quarterly Feedback Report No. 10, Quarter 4/2014 (October-December), p. 28.

247

Spanish Ombudsman. 2013 Annual Report (Informe

Anual 2013)

p. 209-210.

245

244

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

France,

some complaints have been lodged regarding residence permits being denied

to TCN family members of EU citizen frontier workers on the grounds that these EU citizens

are not residents.

Greece,

a case was reported of an EU citizen who legally resided, worked, was insured,

and paid taxes in Greece for over ten years. Although he lost his job in 2010, he found

another job in November 2013 and started working again. However, the renewal of his

residence permit was refused

248

. In another case, a citizen was refused a residence permit

because he applied after his five-year permit had expired

249

A specific issue concerns the

refusal of permanent residence status

on invalid grounds.

This problem is reported in at least four Member States (e.g. DE, FI, IE and IT)

250

. In

particular, Romanian and Polish citizens who have lived in

Italy

for more than five years

are frequently refused registration as permanent residents on the basis that they are

unemployed

251

Relevant examples: Refusal of permanent residence status



Croatia

limits the validity of student registration certificates to duration of their

studies, while it should be unlimited

252

In addition, a case is reported where a UK citizen in

Portugal

failed to obtain his

certificate of registration due to a lack of fixed accommodation in Portugal. Estate

agencies request a Portuguese tax number to execute a tenancy agreement and

Portuguese tax authorities refuse to issue a tax number without a certificate of

registration

253

4.2.4.

Lack of information concerning the right of residence

In at least five Member States (FI,

FR, IT, LV and SI)

254

issues exist concerning the lack

of sufficient information necessary for EU citizens and their family members to exercise

their free movement rights. The lack of access to the information or incorrect information

can effectively result in preventing EU citizens from exercising their rights to residence.

Relevant examples: Lack of sufficient information



Finland

and

Slovenia,

on several occasions the authorities appeared to be of

the mistaken belief that only an employment relationship or enrolment at an

educational establishment confers on an EU citizen a right of residence for a period

exceeding three months. Consequently, they fail to inform people about the right

of residence solely based on having sufficient funds and comprehensive insurance

cover

255

Your Europe Advice, Quarterly Feedback Report No. 7, Quarter 1/2014, (January-March), p.41.

Your Europe Advice, Quarterly Feedback Report No. 3, Quarter 1/2013 (January-March),, p. 23.

250

Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

251

Your Europe Advice, Quarterly Feedback Report No. 10, Quarter 4/2014 (October-December),p.28; Your

Europe Advice, Quarterly Feedback Report No. 8, Quarter 2/2014 (April-June), p.27.

252

Your Europe Advice, Quarterly Feedback Report No. 11, Quarter 1/2015 (January-March), p.27.

253

Ibid at p.26.

254

Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

255

Your Europe Advice. Quarterly Feedback. Quarter 1/2013 (January-March), p. 18.

249

248

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

France,

information on the application procedures is easily accessible only to

French-speaking people. Otherwise, the information is hard to find for the individual

concerned

256

Similarly, in

Latvia,

documents by the Office of Citizenship and Migration Affairs

can only be taken into consideration if they are drawn up in Latvian, Russian,

French, English or German. However, this information is not provided in English on

the website of the Office of Citizenship and Migration Affairs. It is also not specified

(even in the law) whether documents in other languages can be translated by the

applicants themselves or should be certified by professional translators or

notaries

257



A specific issue concerns inadequate or contradictory information provided by national

authorities regarding long-term resident status. This represents an issue in at least three

Member States (FI,

MT and SI)

258

4.2.5.

Restrictive interpretation of proof of health insurance

Finally, three Member States adopt a restrictive interpretation of the proof of health

insurance necessary to obtain a residence card,

which can result in EU citizens’

access to

healthcare being denied. This is the case in

Croatia, Italy,

and

the UK

259

Relevant examples: Restrictive interpretation of the proof of health

insurance



Italy,

the European Health Insurance Card (EHIC) is often not accepted as proof

of comprehensive insurance. Private health insurance and other insurance coverage

in the country of origin also appear to be refused

260

The issue is particularly serious in the

UK,

as the UK Home Office, supported by national

courts, continues to refuse considering access to its National Health Service in its definition

of ‘comprehensive sickness insurance’ for the purposes of securing residence rights

for

non-economically active individuals. Home Office Guidance to EEA caseworkers explicitly

rejects access to the NHS as proof of comprehensive sickness insurance

261

and this

approach has been held to be permissible by the Court of Appeal

262

. This continues to

impose barriers on the residence rights of EU citizens and is a consistent source of

complaint, particularly by students

263

. Moreover, UK courts have allowed administrative

Henningsen, A., et. al, Evaluation of EU rules on free movement of EU citizens and their family members and

their

practical

implementation,

Brussels,

2013,

available

at:

http://ec.europa.eu/

justice/citizen/document/files/evaluation_of_eu_rules_on_free_movement-final_report.pdf.

257

See Article 22 (4) of the Immigration Law (Imigrācijas

likums),

OP: "LV", 169 (2744), 20.11.2002., available

at:

http://likumi.lv/doc.php?id=68522;Groenendijk,

K., et al., European Report on the Free Movement of

Workers in Europe in 2012-2013, 2014, p.54.

258

Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

259

Ibid.

260

Your Europe Advice, Quarterly Feedback Report No. 7, Quarter 1/2014, (January-March), p.34 and 46.

261

Home Office Guidance, ‘European Economic Area national qualified persons’, 7 April 2015, available at:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/488449/Qualified_Persons_v3.

0_ext_clean.pdf,

p. 41.

262

Ahmad v Secretary of State for the Home Department

[2014] EWCA Civ 988.

263

Home Office Guidance, ‘European Economic Area national qualified persons’, 7 April 2015, available at:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/488449/Qualified_Persons_v3.

0_ext_clean.pdf,,

p. 41;

Ahmad v Secretary of State for the Home Department

[2014] EWCA Civ 988; Your

Europe Advice, Quarterly Feedback Report No. 11, Quarter 1/2015 (January-March), p. 25; Your Europe Advice,

Quarterly Feedback Report No. 12, Quarter 2/2015 (April-June), p. 27;Your Europe Advice, Quarterly Feedback

256

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rejections of applications for permanent residence on the basis that an applicant’s sickness

insurance only complemented rather than replaced all services provided by the NHS

264

Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

4.2.6.

The situation of TCN family members of EU citizens

The issues identified are broadly similar for EU citizens and TCN family members. The

latter, in particular, face issues in obtaining a residence card. In this regard, certain

Member States, such as

Spain

265

and

Italy

266

impose an obligation to ‘legalise’ marriage

certificates. This procedure could be cumbersome and delay the issuing of the residence

card. Moreover, TCN family members are reported to encounter complications with the

renewal of residence permits in

Germany

267

and

Croatia

268

Another obstacle to the right of residence is the language requirement imposed on TCN

family members in order to obtain a residence certificate. This issue has been reported for

Austria

where TCN family members have to provide evidence of their knowledge of the

German language by submitting a specific certificate in order to obtain a residence

certificate

269

One other obstacle specifically affecting TCN family members is that, in

Ireland,

authorities

retain passports

for a period of four to six weeks when an application is being

made for a residence card

270

. This prevents such applicants from travelling during this

period

271

Report No. 13, Quarter 3/2015 (July-September), p. 23; Your Europe Advice, Quarter Feedback Report No. 14,

Quarter 4/2015 (October-December), p. 20.

264

FK (Kenya) v Secretary of State for the Home Department

[2010] EWCA Civ 1302.

265

Spanish Ombudsman, Annual Report 2010 (Informe

Anual 2010),

p. 435; Spanish Ombudsman, Annual

Report 2012 (Informe

Anual 2012),

p. 165.

266

Your Europe Advice, Quarterly Feedback Report No. 6, Quarter 4/2013 (October-December), p.33; Your

Europe Advice, Quarterly Feedback Report No. 10, Quarter 4/2014 (October-December), p.27.

267

Your Europe Advice, Quarterly Feedback Report No. 11, Quarter 1/2015 (January-March), p. 25.

268

Your Europe Advice, Quarterly Feedback Report No. 3, Quarter 1/2013 (January-March), p.30 and 31.

269

Groenendijk, K., et al., European Report on the Free Movement of Workers in Europe in 2012-2013, 2014,

p.54.

270

Your Europe Advice, Quarterly Feedback Report No. 12, Quarter 2/2015 (April-June), p. 30.

271

Your Europe Advice, Quarterly Feedback Report No. 13, Quarter 3/2015 (July-September), p. 18.

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Policy Department C: Citizens' Rights and Constitutional Affairs

__________________________________________________________________________________________

ANALYSIS OF THE PRIMARY BARRIERS RELATED TO

SOCIAL SECURITY

KEY FINDINGS



EU citizens and their family members have experienced numerous obstacles in

accessing old age pensions, healthcare, family benefits and unemployment benefits

in the Member States.

Most of the problems reported in accessing social benefits concern

old age

pensions.

The main problems linked to access to old age pensions are: lack of

coordination between national authorities for the calculation of the contribution

periods; imposition of a residence requirement for EU citizens and their family

members in order to be entitled to old age pensions and ignorance of the

aggregation rules for old age pensions. Other obstacles relate to problems of

double-taxation of pensions and the obligation to terminate a pension contract on

departure abroad and to reimburse the state contributions.

Obstacles have also been reported concerning accessing

healthcare

namely:

issues with the recognition and coverage of the EHIC; lack of knowledge of the

applicable legal framework and difficulties in obtaining the S1 form

272

when moving

to another Member State.

Delays, refusals to pay and other obstacles in obtaining

family benefits

have been

reported in a number of Member States. The most frequent issues are: the

imposition of a residence requirement and bureaucratic problems in obtaining

necessary documents.

Substantial barriers to receiving

unemployment benefits

have also been

frequently reported.

The most widespread problem relating to access to social security is the

lack of

coordination and communication

between national authorities of different

Member States. This leads to the non-recognition of rights to which the EU citizens

and their family members are entitled to under the Directive. It also leads to

excessive delays in accessing free movement rights.

Issues relating to

social security contributions

mainly relate to difficulties in

demonstrating payment of such contributions in another Member State. Ignorance

of rules determining the applicable legislation also often leads to the refusal of

social benefits.



5.1.

Directive 2004/38 and other EU acts

Access to social benefits is a precondition for the exercise of free movement rights. Under

Directive 2004/38, EU citizens and their family members therefore enjoy the right to equal

treatment with nationals of the host Member State with respect to access to social

benefits

273

. The coordination of social security is regulated by EU law

274

, under four main

principles

275

The S1 form (formerly E106, E109 and E121) is a certificate of entitlement to healthcare if you do not live in

the country where you are insured.

273

Article 24 of Directive 2004/38; CJEU C-22/08

Vatsouras and Koupatantze

[2009] ECLI:EU:C:2009:344, at

para. 45.

274

Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the

coordination of social security systems, OJ L 166, 30.4.2004, p.1.

275

Ibid.; see also:

http://ec.europa.eu/social/main.jsp?langId=en&catId=849.

272

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

1) Non-duplication:

mobile EU citizens and mobile TCNs legally residing in

the EU are covered by the legislation of one country at a time.

2) Non-discrimination:

mobile EU citizens and mobile TCNs legally residing

in the EU have the same rights and obligations as the nationals of the host

Member State.

3) Aggregation:

periods of insurance, work or residence in another EU

Member State count towards contributory benefits.

4) Exportability:

mobile EU citizens and mobile TCNs legally residing in the

EU, who are entitled to a cash benefit from one Member State, may

generally receive it even when they are living in a different Member State.

In addition, specific rules have been drawn up for the acquisition and preservation of

supplementary pension rights by workers

276

, as well as for measures facilitating the

exercise of rights conferred on workers in the context of freedom of movement

277

Within the context of these rules, this section describes the most common obstacles in

accessing social security, which hinder free movement rights in the Member States. An

assessment of the compatibility of the Member States’ legislation and

practices with the

relevant rules on the coordination of social security is outside the scope of this study.

The obstacles faced by EU citizens and their family members have been categorised

according to the social benefit in question. These obstacles most commonly relate to:



Old age pensions



Healthcare



Family benefits



Unemployment benefits

An overview of the most frequent obstacles is also presented, including:



Lack of coordination and communication between national authorities of different

Member States.



Failure to give information.



Wrongful imposition of social security contributions.



Ignorance of the rules determining the applicable legislation.

5.2.

5.2.1.

Types of benefit

Old age pensions

Most of the problems reported in accessing social benefits concern

old age pensions.

This type of issue has been reported in at least eight Member States (i.e.

CZ, EL, IE, IT,

MT, NL, PL and RO)

278

Directive 2014/50/EU of the European Parliament and of the Council of 16 April 2014 on minimum

requirements for enhancing worker mobility between Member States by improving the acquisition and

preservation of supplementary pension rights(Text with EEA relevance), OJ L 128, 30.4.2014, available at:

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2014.128.01.0001.01.ENG&toc

=OJ:L:2014:128:TOC, p. 1.

277

Directive 2014/54/EU of the European Parliament and of the Council of 16 April 2014 on measures facilitating

the exercise of rights conferred on workers in the context of freedom of movement for workers (Text with EEA

relevance), OJ L 128, 30.4.2014, available at:

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=

uriserv:OJ.L_.2014.128.01.0008.01.ENG&toc=OJ:L:2014:128:TOC. p. 8.

278

Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

276

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__________________________________________________________________________________________

The main problems linked to access to old age pensions are:



Lack of

coordination

between national authorities for the calculation of the

contribution periods.



Setting a

residence requirement

for EU citizens and their family members in

order to be entitled to old age pensions.



Ignorance of the

aggregation rules

for old-age pensions.

A good example of setting

residence requirements

comes from

Greece,

where,

reportedly, the old age pension is not paid by Greek social insurance organisations to

pensioners, unless they reside permanently in Greece

279

Certain Member States, such as

Italy

280

and

Malta

281

often overlook the principle of the

aggregation of periods, which guarantees that periods of insurance, employment or

residence in an EU country are taken into account in all other EU countries. It is reported

that, in Malta, the method of calculating pensions for the transfer of pension rights de

facto deprives the worker of his right to aggregate periods completed under the legislation

of several Member States

282

In addition, one petitioner has claimed that he is unable to obtain his pension entitlements

from

France

and the

as he has worked in the two countries. His pension entitlement

has been calculated, but he has not received the outstanding balance

283

Other obstacles concerning access to old age pension relate to problems of double-taxation

of pensions (e.g. between

the Netherlands

and

Sweden)

284

, and the obligation to

terminate a pension contract on departure abroad and to reimburse the state

contributions, reported in the

Czech Republic

285

Moreover, in CJEU case of

European Commission v Republic of Cyprus

286

it was held that

Cypriot legislation

287

introduces a difference in treatment between officials of the national

administration and officials who work in another Member State in international bodies or

in the EU, since only workers who have engaged in activity exclusively in

Cyprus

can, in

the event of leaving the State service, make use of Cypriot legislation

288

and retain their

pension rights even if they do not fulfil the age criterion of 45 or 48 years. On the other

hand, workers who have exercised their right to freedom of movement do not have the

possibility of relying on Cypriot law, with the consequence of loss of their pension rights.

It also impedes the free movement of workers as it denies the worker the possibility of

relying on aggregation of all insurance periods and does not guarantee the migrant worker

a unified career for social security purposes. Application of the Cypriot Law on Pensions

289

means that an official who resigns voluntarily from the State service of Cyprus in order to

work in another Member State in international bodies, and who does not fulfil the age

Groenendijk, K., et al., European Report on the Free Movement of Workers in Europe in 2012-2013, 2014, p

90.

280

Your Europe Advice, Quarterly Feedback Report No. 2, Quarter 3/2012 (July-September), p. 19 and21; Your

Europe Advice, Quarterly Feedback Report No. 4, Quarter 2/2013 (April-June), p.33.

281

Your European Advice, Quarterly Feedback Report No. 5, Quarter 3/2013 (July-September), p 39.

282

Ibid.

283

Petition No 0237/2014 to the European Parliament.

284

Your Europe Advice, Quarterly Feedback Report No.9, Quarter 3/2014 (July-September), p.51.

285

Your Europe Advice, Quarterly Feedback Report No. 7, Quarter 1/2014 (January-March), p. 3.

286

Case C-515/14

European Commission v Republic of Cyprus

[2016] ECLI:EU:C:2016:30

287

Article 27 of the Law on Pensions (Law 97(I)97).

288

Articles 24 and 25 of the Law on Pensions.

289

Article 27(1)(b) of the Law on Pensions.

279

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

criterion of having reached 45 or 48, receives only the lump sum and loses the pension

rights, even if he has completed the minimum period of insurance of five years.

5.2.2.

Health care

In accordance with Regulation (EEC) No 1408/71, EU citizens and family members may

receive reimbursement of health care costs during a temporary stay in another Member

State. Decision 2003/751/EC introduced the European Health Insurance Card (EHIC),

which enables EU citizens to effectively access health care in other Member States.

Issues with the

recognition and coverage of the EHIC

are common in at least nine

Member States (i.e.

BE, BG, DE, DK, EL, FR, IT, LU and LV)

290

Relevant examples: Barriers related to lack of recognition of the EHIC



In 2013, a Belgian public hospital refused to accept the EHIC of a Spanish citizen

who needed unforeseen medical treatment whilst in

Belgium,

or to treat him until

he had first paid for the treatment

291

This recognition issue is serious in

Bulgaria,

where doctors do not have access to

a system to identify or read the card. There are also reports of doctors frequently

classifying a health problem as a non-emergency, in order to refuse to accept the

EHIC

292

. Issuing of the EHIC is also refused on unjustifiable grounds

293

One petitioner reported problems in getting healthcare in the

Czech Republic

when using the EHIC. The petitioner reported its refusal. The European Commission

investigated the implementation of EU law with regard to the EHIC. It did not find

elements that would justify any infringements committed by the Czech Republic

294

Denmark,

health insurance is lost when the person changes or cancels his/her

permanent residence address in Denmark. The EHIC from Denmark does not,

therefore, cover the first months after an EU citizen moves to another Member

State, as he/she is no longer entitled to Danish health insurance

295



lack of knowledge of the applicable legal framework

also presents a problem in

certain Member States. For instance, an Italian pensioner living in Portugal, on attempting

to renew her EHIC, was told by the Portuguese authorities that she must request a new

EHIC from the country that pays her pension (IT). The Italian social security office stated

that they were unaware of this new rule and refused to issue the card

296

Difficulties in obtaining the S1 form

(the certificate of entitlement to healthcare

required when moving to another Member State) have been reported in at least four

Member States (i.e.

DK, HR, IT and RO)

297

Croatia,

the Health Insurance Fund, the semi-public body that administers the

universal healthcare system, has reportedly refused to issue the S1 form to a Croatian

citizen living in Austria and working as cross-border worker in Croatia. The Health

Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

Your Europe Advice, Quarterly Feedback Report No. 6, Quarter 4/2013 (October-December), p. 46.

292

Your Europe Advice, Quarterly Feedback ReportNo. 1, Quarter 2/2012 (April-June).

293

Your Europe Advice, Quarterly Feedback Report No. 14, Quarter 4/2015 (October-December), p.34.

294

Petition No 1038/2012 to the European Parliament.

295

Your Europe Advice. Quarterly Feedback Report, Quarter No.5, Quarter 3/2013 (July- September), p. 35.

296

Your Europe Advice, Quarterly Feedback Report No. 11, Quarter 1/2015 (January-March), p.17-18; Your

Europe Advice, Quarterly Feedback Report No. 5, Quarter 3/2013 (July-September), p.40.

297

Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

291

290

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Insurance Fund insisted that the individual provide proof that he/she had moved out of

the country, although this is not a requirement to qualify as a cross-border worker under

EU law. The right to benefit from healthcare in both countries, anchored in Articles 17 and

18 of Regulation (EC) No. 883/2004, was not respected

298

5.2.3.

Family benefits

Delays, refusals to pay and other obstacles to family benefits

have been reported

in at least six Member States (i.e.

AT, CZ, DE, DK, HR and SK)

299

. The most frequent

issues are the imposition of a

residence requirement

and

bureaucratic problems

accessing necessary documents.

A residence requirement is imposed in certain Member States, such as the

Czech

Republic

and

Slovakia.

The

Czech Republic

does not grant family benefits to people

falling under the Czech social security rules who are living abroad. This is in contrast with

the principle of exportability of family benefits

300

Slovakia,

some social benefits (i.e. child allowance and parental allowance) are subject

to a permanent residence permit, while family benefits (designed for families with three

or more children, or where twins are born in the course of two consecutive years) are

limited to family members who reside with the EU worker in Slovakia

301

Bureaucratic problems arise from the form required to apply for family allowance (Form

E401), as this does not exist in

Croatia,

leading to the denial of family benefits. An

example is the case of a Croatian citizen who lives in Austria but whose children are in

Croatia. To apply for the family allowance in Austria for his children, he would need to

submit the completed E401 form to the Austrian tax authorities. However, the Croatian

authorities do not issue this type of form

302

Furthermore, as a result of the CJEU’s recent

2016 findings in

Commission v UK

303

and

García-Nieto

304

jobseekers will only be entitled to three months’ jobseekers’ allowance,

child benefit and child tax credit after demonstrating ‘compelling evidence’ of a ‘genuine

prospect of work’ in the

UK.

‘Compelling evidence’ is very restrictively defined, covering

documentary evidence of a job offer or very recent material evidence of a change in

circumstances, accompanied by pending outcomes of job interviews. Moreover, since the

rule applies not just to new jobseekers but to non-national EU citizens who have recently

lost employment in the UK (but who do not retain worker status), new jobseekers appear

to receive more favourable treatment under the amendments than the formerly employed.

This is because longer-term residents in the UK may have already exhausted their three-

298

299

Your Europe Advice, Quarterly Feedback Report No.11, Quarter 1/2015 (January-March), p.35.

Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

300

‘Employment’,

Association

for

integration

and

migration,

available

at:

http://www.migrace.com/cs/poradna/informace-pro-cizince/obcane-eu-a-jejich-rodinni-prislusnici/zamestnani,

p.29-30.

301

Groenendijk, K., et al., European Report on the Free Movement of Workers in Europe in 2012-2013, 2014,

p.90.

302

Your Europe Advice, Quarterly Feedback Report No.11, Quarter 1/2015 (January-March), p.40.

303

Case C-308/14

Commission v UK

[2016] ECLI:EU:C:2016:436.

304

Case C-299/14

Vestische Arbeit Jobcenter Kreis Recklinghausen v Jovanna García-Nieto and Others

[2016]

ECLI:EU:C:2016:114.

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__________________________________________________________________________________________

month initial residence rights and right to reside for 91 days as a jobseeker, with the result

that they are required to provide ‘compelling evidence’ of future work straight away

305

5.2.4.

Unemployment benefits

Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

Substantial

barriers to receiving unemployment benefits

were reported in a number

of Member States (e.g.

AT, BE, BG, DE and LT)

306

An EU citizen residing in France and working in

Belgium

could not obtain unemployment

benefits from either country, as neither would recognise his right to the benefits

307

Bulgaria,

the authorities continue to refuse to take into account Bulgarian workers’

social security records and incomes in another Member State for the purposes of

calculating their unemployment benefits in Bulgaria

308

To become a beneficiary of an unemployment fund in

Denmark,

a certain number of job

applications must be submitted by the unemployed person in order to be considered an

active jobseeker and thus to be entitled to benefits. Job applications for roles abroad,

however, do not count towards the requirements

309

. In general, employment support is

only provided to nationals and lawfully resident foreigners, implying the exclusion of EU

jobseekers, who are unlikely to be deemed resident, and who, therefore, have access to

only basic health services. EU jobseekers are likely to experience difficulties in accessing

social security benefits, particularly if they have not been contributing to such benefits or

are not permanent residents

310

. In addition, it appears that some job centres require EU

citizens to hold a Danish personal identification number (CPR), thereby recording them in

the Civil Registration System, before they can claim entitlement to courses, internships

and salaried employment.

Lack of knowledge of the applicable rules

also constitutes a problem in

Denmark.

EU citizens encounter difficulties applying for social assistance as jobseekers following

dismissal from long-term employment. This is claimed to stem from some municipalities

lack of familiarity with the applicable rules

311

5.3.

5.3.1.

Main types of obstacles

Lack of coordination and communication between national authorities of

different Member States

The most widespread problem relating to access to social security for mobile EU citizens

and their family members is the

lack of coordination and communication between

national authorities of different Member States.

Issues have been reported in a

significant number of Member States (i.e.

BE, BG, CZ, DE, DK, EL, FI, FR, HU, IE, IT,

O’Brien, C., ‘The Pillory, the Precipice and the Slippery Slope : the profound effects of the UK’s legal reform

programme targeting EU migrants’

(2015) 37(1) JSWFL, 111-136,

117.

306

Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

307

Your Europe Advice, Quarterly Feedback Report No. 8, Quarter 2/2014 (April-June), p.31.

308

Your Europe Advice, Quarterly Feedback Report No. 4, Quarter 2/2013 (April-June).

309

Groenendijk, K., et al., European Report on the Free Movement of Workers in Europe in 2012-2013, 2014, p.

310

Ibid, p.24.

311

Ibid, p. 95.

305

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LU, LV, NL, PL and RO)

312

. This lack of cooperation actively hinders the free movement

rights of EU citizens and their family members.

In the most serious cases, the lack of efficient communication between Member States

leads to the non-recognition of rights to which the EU citizens and their family members

are entitled under Directive 2004/38. For instance, in

Ireland,

the social security

authorities reportedly refused to engage with their UK counterparts to exchange

information required to deal

with a citizen’s applications for child benefits in Ireland, as

required under Regulation 987/2009/EC

313

. As a result, the citizen has not been paid child

benefits

314

In other cases, these problems lead to excessive delays in accessing free movement rights.

Bulgaria

is a case in point. Its citizens often complain about excessive delays in

exchanging information for confirming insurance periods from abroad in order to process

pension benefits. Bulgarian citizens frequently wait for years (three or four years,

sometimes more) to obtain their P1 form

315

from

Greece,

containing a summary of the

pension decisions that concern them, and often cannot obtain any information on when,

or whether, they will obtain their Greek pension

316

One case relates to a Bulgarian citizen who, in 2009, applied for his Greek retirement

pension. At the beginning of 2015, he started to receive his pension, though without back-

payments. Following a request to the Greek authorities (IKA), he was advised that the

back-pay had been sent to Bulgaria, but he did not receive it

317

As illustrated by these examples, the lack of coordination between national authorities

hinders access to social benefits both in the host Member State

and

in the home Member

State. In fact, EU citizens and their family members also face problems when they return

to their home Member State after having exercised their free movement rights in another

Member State.

Italy,

problems of coordination between Italian and other authorities cause difficulties

with the right to unemployment benefits

318

. The communication between national

authorities for confirmation of employment periods is insufficient, with citizens complaining

about misinformation, delays and burdensome administrative formalities

319

. An example

is the case of an Italian citizen who went to France for seasonal work, before coming back

to Italy and registering for unemployment benefits. In Italy, the competent authority asked

him for the U1 form

320

. However, when he contacted the French competent authority, they

indicated that the request come directly from the Italian authority, resulting in a four-

Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying

down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security

systems,

October

2009,

284/1,

available

at:

http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:284:0001:0042:en:PDF.

314

Your Europe Advice, Quarterly Feedback Report No. 11, Quarter 1/2015 (January-March), p. 38.

315

The P1 form is a summary of pension decisions which provides an overview of the decisions taken in a

particular person’s case by the various institutions in the EU Member States from which that peron has claimed

an old age, survivors or invalidity pension.

316

Ibid, p. 41.

317

Your Europe Advice, Quarterly Feedback Report No.14, Quarter 4/2015 (October-December). p.39.

318

Your Europe Advice, Quarterly Feedback Report No. 2, Quarter 3/2012 (July-September), p.19-20.

319

Your Europe Advice, Quarterly Feedback Report No. 6, Quarter 4/2013 (October-December), p.42.

320

The U1 form (formerly E 301 is a statement of insurance periods to be taken into account when calculating

an unemployment benefit. The form is issued by the competent social security institution in the last country

where a person worked. The person submits it to the national employment service in the country where he/she

wishes to receive unemployment benefits.

313

312

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

month delay to his unemployment benefit

321

. A similar case occurred between Italy and

Belgium for an Italian citizen unemployed in Belgium. The competent Belgian authorities

refused to request the U1 form from the Italian authorities, claiming that it is the

responsibility of the citizen to obtain the form, while the Italian authorities would only

provide it directly to the Belgian authorities at their request. As a result, the citizen could

not access unemployment benefits

322

An Italian pensioner residing in

Belgium

had health problems during a trip to Italy, which

required care and prevented her return to Belgium. Neither the Belgian nor the Italian

social security authorities would reimburse the health expenses, as they were unable to

agree on the citizen’s residence

323

5.3.2.

Social security contributions

Issues relating to

social security contributions

are reported in at least four Member

States (i.e.

BG, DK, HU and RO)

324

. They mainly relate to difficulties for EU citizens and

their family members in demonstrating their payment of contributions in another Member

State.

For instance,

Bulgaria

only accepts a limited range of portable documents as proof of

insurance in another Member State. These are issued by the respective national

administrations, such as S1, U1 or A1 forms. If Bulgarian and other EU citizens cannot

produce these documents, they are asked to pay back health insurance contributions in

Bulgaria for the period during which they were away

325

A similar issue is reported in

Romania,

where EU citizens have been asked to produce

documents proving that they paid health insurance contributions in Romania for the same

period during which they were subject to another

Member State’s legislation. In addition,

the Romanian authority does not accept portable documents issued in other Member

States. In practice, this means that some Romanian citizens are obliged to pay their health

insurance contributions twice

326

Hungary,

the social security authority is reported to systematically contact persons

with a registered address in Hungary and request payment of social security contributions.

5.3.3.

Ignorance of the rules determining the applicable legislation

In general, the

ignorance of rules determining the applicable legislation

often leads

to the refusal of social benefit in at four Member States: (FR,

IT, NL and PL)

327

France,

the application of taxes earmarked for social security (CSG “Contribution

sociale

généralisée” and CRDS “Contribution pour le remboursement de la dette sociale”)

Your Europe Advice, Quarterly Feedback Report No. 6, Quarter 4/2013 (October-December), p.42.

Your Europe Advice, Quarterly Feedback Report No. 8, Quarter 2/2014 (April-June), p.32.

323

Your Europe Advice, Quarterly Feedback Report No. 10, Quarter 4/2014 (October-December), p. 31-32.

324

Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

325

Your Europe Advice, Quarterly Feedback Report No. 3, Quarter 1/2013 (January-March).

326

Your Europe Advice, Quarterly Feedback Report No. 9, Quarter 3/2014 (July-September), p. 33.

327

Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

322

321

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affected the real estate revenue of an Italian citizen who resided in Italy despite the fact

that the citizen was not affiliated to the French social security system

328

the Netherlands,

an Austrian citizen working as a civil servant for the University of

Maastricht cannot have any social security cover, because the social security institute in

the Netherlands told him that it is not possible to be covered in the Netherlands. According

to Regulation 883/2004, civil servants shall be subject to the legislation of the Member

State to which the administration employing him is subject

329

328

329

Your Europe Advice, Quarterly Feedback Report No. 7, Quarter 1/2014, (January-March), p.42.

Ibid, p.43.

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

OTHER RECURRING BARRIERS

KEY FINDINGS



EU citizens and their family members experience other recurring obstacles in

exercising their free movement and residence rights in the Member States. These

include:

Accessing employment

(e.g. the

non-recognition of professional

qualifications

and

academic diplomas

obtained from another Member State);

Barriers to living in another Member State (e.g. using vehicles

in another

Member State and additional requirements for EU citizens seeking to

vote/stand as a candidate

in European and municipal elections in another

Member State) ;

Administration issues (e.g. poor administrative services

(difficulties in

obtaining information and the poor quality of the information available) and

double

taxation

of salaries and pensions);



This section provides information on other recurring practical obstacles EU citizens and

their family members experience in exercising their free movement and residence rights

in the Member States.

6.1.

Accessing employment in other Member States

EU citizens

and their

family members

have faced a number of obstacles in accessing

employment in EU Member States. Such issues concern the fact that some Member States

do not recognise professional qualifications obtained in another Member State.

6.1.1.

Non-recognition of professional qualifications from other Member States

There are rules at EU level that are set out in Directive 2005/36/EC

330

on the recognition

of professional qualifications as last amended by Directive 2013/55/EC

331

. It seems

however that due to some implementation related difficulties

EU citizens

have faced

obstacles in getting their professional qualifications recognised in another Member State.

This has been reported as an issue in at least 11 Member States (e.g.

AT, DE, DK, FR,

HR, IE, IT, LU, NL, RO and the UK)

332

Article 2(2) of Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on

the recognition of professional qualifications OJ L 255/22, 30 September 2005, available at:

http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:255:0022:0142:en:PDF.

331

Directive 2013/55/EU of the European Parliament and of the Council of 20 November 2013 amending Directive

2005/36/EC on the recognition of professional qualifications and Regulation (EU) No 1024/2012 on administrative

cooperation through

the Internal Market Information System (‘the IMI Regulation’) OJ L 354/132, 28 December

2013, available at:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:354:0132:0170:en:PDF.

332

Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

330

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Policy Department C: Citizens' Rights and Constitutional Affairs

__________________________________________________________________________________________

Relevant examples: Non-recognition of professional qualifications



An experienced radiographer moved to

Ireland

and sent a detailed application for

the professional recognition of her qualifications to the competent authority, with

the intention of undertaking work in her professional field. Two years after receiving

the receipt of acknowledgement of her file, among other correspondence, the Irish

competent authority continues to refuse to make any decision on the application

333

Luxembourg,

a case was brought before the Ombudsman about a Romanian

with physiotherapy qualifications where the relevant body refused to recognise the

qualification making it impossible for the individual to obtain an internship

necessary to meet the national registration requirements

334

One

petitioner’s mountain biking instructor’s qualification from the UK was not

recognised in

France,

preventing him from working there during the summer of

2014. He claimed that, in general, outdoor professional qualifications are not

recognised in France

335



6.2.

Using vehicles in another Member State

EU citizens

have encountered persistent obstacles in using their vehicles in another

Member State. They are frequently required to register their foreign vehicles in another

Member State and they are often taxed for using a foreign car in another Member State.

6.2.1.

Requirement to register vehicles in another Member State

EU citizens

have frequently been required to register their vehicles in another Member

State. This has been reported as an issue in at least 13 Member States

(

e.g.

AT, BE, DE,

DK, FI, FR, HU, IE, IT, LV, LU, NL, PT)

336

. For example, there is often a requirement to

State and are registered in that other Member State. The CJEU has, however, confirmed

that if one’s car is essentially

used on a permanent basis in another Member State, for

example the Member State where the company is established, then it must be registered

there

337

. Moreover, Recital 89 of Directive 2006/123/EC

338

indicates that the case law of

the Court of Justice has recognised that a Member State may impose such an obligation,

in accordance with proportionate conditions, in the case of vehicles used on its territory.

That exclusion does not cover occasional or temporary rental

339

. Therefore, such a

requirement is not necessarily in breach of EU law.

Your Europe Advice, Quarterly Feedback Report No. 7,Quarter 1/2014 (January-March), p. 57.

Groenendijk, K., et al., European Report on the Free Movement of Workers in Europe in 2011-2012, Brussels,

2012, p. 74.

335

Petition No 1736/2014 to the European Parliament.

336

Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

337

C-464/02,

Commission v Denmark.

[2005] ECLI:EU:C:2005:546

338

Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in

the internal market OJ L 376/36, 27 December 2006, available at:

http://eur-lex.europa.eu/legal-

content/EN/TXT/PDF/?uri=CELEX:32006L0123&from=EN.

339

Recital 89 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on

services in the internal market, OJ L 376, 27 December 2006, available at:

http://eur-lex.europa.eu/legal-

content/EN/TXT/?uri=CELEX:32006L0123.

334

333

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

Relevant examples: Requirement to register vehicles in another

Member State



Students have been required to register their vehicle in

Austria,

although they

should be exempted from this provision

340

. There have also been requests to

another Member State and only travel through Austria

341

Two cases were reported of Belgian citizens with residence in both

Belgium

and

France, who were fined for driving French-registered cars not registered in Belgium.

Foreign students have been repeatedly fined in Belgium for not registering their

cars there

342

. In 2014, a German citizen was told to register his car in Belgium,

where he had a second home

343

A Slovak student studying in

Denmark

had problems with his car. The Danish tax

authority ordered him to register his car in Denmark. However, it is registered

under the name of his parents in Slovakia, therefore there is no obligation to

and registers the car in Denmark

344

The Finnish authorities often demand the registration of company cars used

privately in

Finland

(the citizens’ country of residence)

345

. For example, the Finnish

authorities demanded the registration of company cars registered to an Estonian

company and used only occasionally in Finland by a Finnish resident.

Where an EU citizen is temporarily resident in Hungary but maintains residence in

another Member State and works partially outside Hungary, the Hungarian

authorities require the car to be registered in

Hungary

346

A Belgian teacher worked in

the Netherlands

but lived in Belgium and travelled

back home for the weekends. The Dutch police unduly requested that this citizen

347



6.2.2.

Vehicle taxation for use of a foreign car

Vehicle taxation for use of a foreign car has been reported as an issue by some

EU citizens

in at least three Member States

348

. For example, in

Ireland,

complaints have been made

by EU citizens that they have paid double vehicle taxes for the same period, as a result of

differences in national taxation systems

349

. People have also been taxed for the use of a

foreign car in

the Netherlands

350

. Moreover,

Romania

continues to demand unusual

taxes (Pollution Tax, Luxury Tax) when citizens try to register their vehicles

351

340

Your Europe Advice, Quarterly Feedback Report No. 9, Quarter 3/2014 (July-September),p.46.

Your Europe Advice, Quarterly Feedback Report No. 4, Quarter 2/2013 (April-June), p.45; Your Europe Advice,

Quarterly Feedback Report No. 2, Quarter 3/2012 (July-September), p.31

342

Your Europe Advice, Quarterly Feedback Report No. 3, Quarter 1/2013 (January-March), p. 36.

343

Your Europe Advice, Quarterly Feedback Report No. 8, Quarter 2/2014 (April-June)), p. 45.

344

Your Europe Advice, Quarterly Feedback Report No. 4, Quarter 2/2013 (April-June), p. 44.

345

Your Europe Advice, Quarterly Feedback Report No. 8, Quarter 2/2014 (April-June),p. 46.

346

Case C 583/14,

Benjámin Dávid Nagy v. Vas Megyei Rendőr-főkapitányság

[2015] ECLI:EU:C:2015:737.

347

Your Europe Advice, Quarterly Feedback Report No. 10, Quarter 4/2014 (October-December), p.52.

348

Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

349

Your Europe Advice, Quarterly Feedback Report No.13, Quarter 3/2015 (July-September), p 54.

350

http://www.minbuza.nl/ecer/nieuws/2010/11/hoge-raad-stelt-prejudiciele-vragen-over-vrij-verkeer-binnen-

nederland.html

351

Your Europe Advice, Quarterly Feedback Report No. 7, Quarter 1/2014, (January-March), p.21.

341

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__________________________________________________________________________________________

While these examples are interesting and constitute barriers for EU citizens in exercising

their free movement and residence rights within the EU, there is no EU rule which prohibits

the imposition of such taxes on motor vehicles

352

. Article 110 TFEU only stipulates that

Member States should not impose any internal taxation of any kind on the products of

other Member States that is in excess of that imposed on similar domestic products.

Therefore, according to the CJEU’s judgment in C-365/02,

Lindfors

double taxation of car

registration or pollution taxes on motor vehicles is not, as such, contrary to EU law

353

6.3.

Double taxation

Double taxation of salaries and pensions has been reported as an issue for

EU citizens

and their

TCN family members

in at least eight Member States (e.g.

DE, DK, FR, IE,

IT, LU, NL and SE)

354

. There is no general EU measure to eliminate double taxation. Most

EU countries have bilateral tax treaties in place to relieve double taxation

355

Relevant examples: Double taxation



The Treaty on Avoidance of Double Taxation between

Denmark

and

France

has

not been applicable since 2009. Taxpayers, such as pensioners, who derive their

income from Denmark but are resident in France, are liable for taxes on their

Danish income in both countries

356

Cases of double taxation of salaries involving

Italy, France

and the

have been

reported

357

. For example, the Italian widow of a British worker returned to Italy,

where she lived on the income from the rental of UK properties inherited by her

husband, in addition to a UK pension. All of her income was taxed in the UK. Your

Europe Advice reports that the competent Italian tax authorities did not make

allowances for this, deciding that her income should be taxed in Italy as well, despite

the double taxation avoidance agreement operating between Italy and the UK

358

There is a problem of double taxation of pensions between

the Netherlands

and

Sweden

due to a lack of exchange of information between the tax authorities and

the social security administrations

359



6.4.

Administrative Services

Administrative services provided by the Member State authorities have frequently been

reported as poor by

EU citizens

and their

TCN family members.

Difficulties have been

frequently encountered in obtaining information on free movement and residence rights

and the quality of the information available is often very poor.

European Commission website, ‘Frequently Asked Questions on Passenger car related taxation’, available at:

http://ec.europa.eu/taxation_customs/common/faq/taxation/faq_cartax_en.htm.

353

Ibid.

354

Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

355

European

Commission

website,

‘Double

taxation’,

available

at:

http://ec.europa.eu/taxation_customs/taxation/individuals/double_taxation_en.htm.

356

Your Europe Advice, Quarter Feedback Report No. 14, Quarter 4/2015 (October-December), p. 66.

357

Your Europe Advice, Quarterly Feedback Report No. 9, Quarter 3/2014 (July-September), p.51.

358

Your Europe Advice, Quarterly Feedback Report No. 5, Quarter 3/2013 (April-June).

359

Your Europe Advice, Quarterly Feedback Report No. 9, Quarter 3/2014 (July-September), p.51.

352

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__________________________________________________________________________________________

6.4.1.

Difficulties in obtaining information

Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

EU citizens

and their

TCN family members

have frequently experienced difficulties in

obtaining information regarding their free movement and residence rights. This has been

reported as an issue in at least six Member States (e.g.

CY, CZ, EL, IE, IT and RO)

360

Relevant example: Difficulties in obtaining information



Those seeking help and advice from the

Irish

Naturalisation & Immigration Service

(INIS) in relation to their applications for residence cards find it difficult to contact

the organisation. The telephone contact details for INIS provided on the website

are a lo-call number (i.e. a number prefixed by 1850 or 1890), which can only be

used within Ireland, and a general contact number, linked to an automated system

with a considerable waiting period to talk to an operator

361

. Frequently, the

automated system will advise that the helpline operators are so busy they cannot

deal with the call and advise

the caller to ‘try again later’. In addition, telephone

call hours are limited to between 10am and 12.30pm on Tuesdays and

Thursdays

362

363

6.4.2.

Poor quality of the information available

The information regarding free movement and residence rights that is available to

citizens

and their

TCN family members

is often of a very poor quality. This has been

reported in at least seven Member States (e.g.

CY, CZ, DK, FI, IE, IT, LV)

364

Relevant examples: Poor quality of the information available



Cyprus and the Czech Republic,

experts have highlighted that information is

not systematically updated, is not easy to understand or is ‘superficial’

365

Finland,

several clients have received inaccurate information regarding the

enquiries which they made to the Citizen’s

Signpost Service

366

Italy,

no information is available on the registration certificate and permanent

residence on the migration portal, with only poor and insufficient information

available on the regional/local websites. Moreover, limited information is available

360

361

Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

Irish Naturalisation & Immigration Service, available at :

http://www.inis.gov.ie/.

362

European Parliament, ‘Comparative study on the 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’,

2009,

410.650,

available

at:

http://www.europarl.europa.eu/RegData/etudes/

etudes/join/2009/410650/IPOL-JURI_ET(2009)410650_EN.pdf, p. 119.

363

www.latvija.lv website;

https://epakalpojumi.latvija.lv/Help/index.html.

364

Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

365

European Parliament, ‘Comparative study on the 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’,

2009,

410.650,

available

at:

http://www.europarl.europa.eu/RegData/

etudes/etudes/join/2009/410650/IPOL-JURI_ET(2009)410650_EN.pdf,p225.

366

Ibid,p 226.

EUU, Alm.del - 2018-19 (1. samling) - Bilag 660: Brev til beskæftigelseskommissær Marianne Thyssen om effektiv håndhævelse og implementering af EU-reglerne

Policy Department C: Citizens' Rights and Constitutional Affairs

__________________________________________________________________________________________

on the main police website about residence cards and permanent residence, despite

this being the website to which the local and regional websites refer

367



Latvia,

while there is a one-stop-shop information service available on all public

services provided both in Latvian and English (www.latvija.lv), it does not

distinguish between the different groups of people living in Latvia and therefore

does not facilitate access to information of specific interest and relevance to EU

citizens and their TCN family members wishing to move and reside in Latvia.

Moreover, information on registration and residence of EU citizens and their families

in Latvia is provided on the website of the relevant authority (i.e. the Office of

Citizenship and Migration Affairs). However, this information is rather limited. In

particular, it does not explain how to challenge refusal of registration or a visa or

the possibility of making a complaint to the Ombudsman in the case of

administrative difficulties

368

6.5.

Additional requirements for EU citizens seeking to register to

vote/stand as a candidate in European and municipal

elections in another Member State

EU citizens

have encountered difficulties with registering to vote and to stand as a

candidate in European and municipal elections in some Member States (e.g. EE, IT, LV)

369

Obstacles for EU citizens in exercising their electoral rights in another Member State

contravenes a number of provisions set out in the EU Treaties. For example, the TFEU and

the Charter of Fundamental Rights provide that EU citizens have the right to vote and to

stand as candidates in European Parliament and municipal elections in their Member State

of residence, under the same conditions as nationals of that State

370

Latvia,

there are additional administrative requirements for EU citizens seeking to

registration document for proving residence or the obligation to renew registration for each

European election

371

. In

Italy,

cases have been reported where EU citizens were

denied

the right to vote in European elections.

A German citizen resident in Rome was informed

of the obligation to present a request for voting for the European elections only after the

deadline for submitting the request had passed. He was subsequently denied the right to

vote for those elections

372

. In addition, a Romanian citizen, resident in Italy, complained

that she was incorrectly informed by the local Italian authorities that she could only vote

in local elections, but not for regional or European elections

373

Henningsen, A., et. al, Evaluation of EU rules on free movement of EU citizens and their family members and

their practical implementation, Brussels, 2013, available at:

http://ec.europa.eu/justice/citizen/document/

files/evaluation_of_eu_rules_on_free_movement-final_report.pdf.p. 41.

368

http://www.pmlp.gov.lv/en/home/services/registration-cards.html.

369

Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

370

Articles 20(2), 22 and 223(1) TFEU; Articles 39(1) and 40 of the Charter of Fundamental Rights.

371

Union citizenship: developments, impact and challenges, The XXVI FIDE Congress in Copenhagen 2014]

Congress Publications Vol. 2, DJØF Publishing, Copenhaguen, 2014, p.296.

372

Your Europe Advice, Quarterly Feedback Report No. 7, Quarter 1/2014, (January-March), p.72.

373

367

Your Europe Advice, Quarterly Feedback Report No. 8, Quarter 2/2014 (April-June), p.55 and 58.

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__________________________________________________________________________________________

Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

6.6.

Issues with the recognition of diplomas from another Member

State

Many

EU citizens

have encountered difficulties with the recognition of their academic

diplomas from another Member State. This has been reported as an issue in at least eight

Member States (e.g.

BE, DK, ES, FI, IT, NL, SE and UK)

374

. For example, the Your Europe

Advice Service indicated that there are frequent complaints (in Belgium, Spain, Italy,

Denmark, Finland and Sweden) about the handling of citizens’ applications to get their

diplomas recognised, which could be due to the absence of EU harmonisation as it creates

uncertainties and false expectations for citizens

375

. Therefore, no EU legislation has been

adopted yet regarding the mutual recognition of academic diplomas despite the fact that

the TFEU requires the European Parliament and the Council to issue Directives for the

mutual recognition of diplomas, certificates and other evidence of formal qualifications

376

Relevant examples: Issues with the recognition of diplomas from

another Member State



Barriers have been reported regarding the recognition of diplomas from outside

Belgium,

such as excessive documentation being required

377

. For example, an

Italian citizen had problems regarding the equivalence of her Italian diploma in

Archaeology. The administration asked for many documents and the descriptions

and marks of all 60 exams she had taken

378

A Lithuanian citizen was not allowed to graduate from his Master’s studies in

archaeology in the

without taking the ARB Part 1 qualification exam

379

. This

exam is obligatory in order to receive academic recognition of the Lithuanian

bachelor degree in the UK. However, if you get a Bachelor’s degree in the UK and

continue to postgraduate level after, you do not have to take this exam

380

A Bulgarian citizen has lived in

Spain

since 2004, where she is trying to receive

the recognition of her diploma and Master’s on Orthodox Theology obtained in

Bulgaria. She first contacted the Ministry of Education and thereafter the Central

Nunciature in Madrid, but they said that they cannot recognise her degree as it is

not one in Catholic Theology. Consequently, she cannot use her diplomas to work

in the educational field or engage in further training

381



374

375

Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

Your Europe Advice, Quarterly Feedback Report No. 8, Quarter 2/2014 (April-June),p. 11.

376

Article 53(1) TFEU.

377

Your Europe Advice, Quarterly Feedback Report No. 8, Quarter 2/2014 (April-June),p. 11;Your Europe Advice,

Quarterly Feedback Report No. 7, Quarter 1/2014, (January-March), p. 20.

378

Your Europe Advice, Quarterly Feedback Report No. 8, Quarter 2/2014 (April-June), p.38.

379

The UK Architects Registration Board’s qualification examination.

380

Your Europe Advice, Quarterly Feedback Report No. 8, Quarter 2/2014 (April-June), p.38.

381

Ibid p.38-39.

EUU, Alm.del - 2018-19 (1. samling) - Bilag 660: Brev til beskæftigelseskommissær Marianne Thyssen om effektiv håndhævelse og implementering af EU-reglerne

Policy Department C: Citizens' Rights and Constitutional Affairs

__________________________________________________________________________________________

REVIEW OF LEGAL OR PRACTICAL INSTANCES OF

DISCRIMINATION

KEY FINDINGS



Overall not many cases of discrimination of EU citizens and their family members

in the exercise of their free movements rights to entry and residence established

by Directive 2004/38/EC have been identified. Data is relatively scarce and it is

therefore difficult to assess the extent of the issues. Most discriminations appear

to occur once the EU citizens and family members reside in the Member States and

wish to access a number of services or market (employment, housing, education,

etc.).

Recurrent cases of

discrimination on grounds of nationality

concerning EU

citizens and their family members have been identified. These include: accessing

employment, including obstacles in accessing employment for Romanian and

Bulgarian nationals despite the end of the transitional measures on 1 January 2014,

and civil service employment positions being reserved for nationals in several

Member States. In addition, recurring issues have been reported of EU citizens and

their TCN family members being inhibited from accessing education/schools on

grounds of their nationality, as well as different tuition fees being imposed on

nationals and non-nationals. Other recurring issues are different fees being applied

to EU citizens compared to nationals (from residence cards and car insurance

premiums to marathon entry fees and dormitory fees), banks discriminating

against non-nationals, and price discrimination for EU citizens/their TCN family

members for using public transport.

Only a limited number of complaints and petitions have been made concerning

discriminations of EU citizens and their family members on grounds of

their civil

status/sexual orientation.

However, one particular obstacle experienced is that

EU citizens’ civil partnerships

are not recognised for the purposes of entry or

residence in some Member States (e.g.

and

SI)

although the Member State

recognises civil partnerships. A number of discriminatory obstacles to free

movement have been encountered by same-sex couples in registered partnerships

Slovakia

and

Poland,

including: refusal of the right of permanent residence

status; non-recognition of residence cards issued by another Member State leading

to refusal of entry; refusal to grant a residence card or work permit; uninsured

persons being excluded from the health insurance of their partner; refusal to issue

a birth certificate to children of same-sex partners and non-eligibility for financial

compensation in the case of death of one of the partners.

Little information is available on EU citizens and their family members being

discriminated against on

grounds of their racial or ethnic origin

in exercising

their free movement and residence rights. However,

Roma

have faced

discrimination regarding access to employment, education, financial services,

accommodation and social protection. They are also prevented from registering in

another Member State; prevention from living in caravans; subjected to evictions,

expulsions and deportations as a result.



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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

7.1.

EU non-discrimination requirements in the context of free

movement

Directive 2004/38/EC established the right to equal treatment between EU citizens and

family members with residence rights and nationals of the host Member State

382

. In

accordance with the prohibition of discrimination contained in the Charter of Fundamental

Rights of the EU (the Charter), Member States must implement the Directive without

discriminating between its beneficiaries on grounds such as sex,

race, colour, ethnic or

social origin,

genetic characteristics, language, religion or beliefs, political or other

opinion,

membership of an ethnic minority,

property, birth, disability, age or

sexual

orientation

383

. In addition, Article 18 of the TFEU prohibits discrimination on grounds of

nationality.

The Directive contains two

derogations

to equal treatment in respect of social assistance:



No entitlement to social assistance during the first three months of residence or,

where appropriate, for as long as the citizen, who entered the Member State to

seek employment, is continuing to seek employment

384



No obligation to grant maintenance aid for studies prior to acquisition of the right

to permanent residence, including vocational training

385

Much case law of the CJEU has interpreted the obligation to ensure equal treatment

between nationals and EU citizens and their family members when exercising their free

movement rights provided for by Article 24 of the Directive. In particular, the case law has

focused on the

interpretation of the permitted derogations

to the right to equal

treatment concerning entitlement to social assistance during the first three months of

residence or, where appropriate, the period during which jobseekers retain their right to

residence because they are seeking employment and have a genuine chance of being

engaged. It should be noted that social assistance, social advantages and social benefits

are not defined in the Directive or in any other piece of EU legislation. Such terms are

interpreted through CJEU case law.

Firstly, the CJEU has stated that the derogations

must be interpreted narrowly

insofar

as they constitute an exception to the general principle of equal treatment provided for in

Article 24 of the Directive and in Article 18 of the TFEU

386

In applying this narrow interpretation, the CJEU has drawn

a line between social

assistance

and

social advantages

social benefits:

the latter include financial and

non-financial

benefits, such as childcare allowances and jobseekers’ allowance, which are

not intended to facilitate access to the labour market

387

. As such, derogations to equal

treatment may not apply to social advantages or social benefits. The host State is obliged

to grant equal treatment during the first three months or, for jobseekers, during the period

in which they can provide evidence that they are seeking employment and have a genuine

chance of being engaged

388

382

383

384

385

386

387

388

Article 24 of Directive 2004/38/EC.

Article 21(1) of the Charter of Fundamental Rights of the EU.

Article 24(2) of Directive 2004/38/EC.

Ibid.

Case C-46/12

L.N

[2013] ECLI:EU:C:2013:97, at para. 33.

Case C-22/08

Vatsouras and Koupatantze

[2009] ECLI:EU:C:2009:344, at para. 45.

Ibid.

EUU, Alm.del - 2018-19 (1. samling) - Bilag 660: Brev til beskæftigelseskommissær Marianne Thyssen om effektiv håndhævelse og implementering af EU-reglerne

Policy Department C: Citizens' Rights and Constitutional Affairs

__________________________________________________________________________________________

Access to benefits for economically inactive EU citizens can be made dependent on their

being legally resident, which in itself presupposes sufficient financial means. The CJEU

held in the

Brey

judgment

389

that the

mere fact of claiming a benefit is not sufficient

to prove that a person is not self-sufficient,

and that the

particular circumstances

of each case

need to be considered when assessing the burden that granting the benefit

would place on the social assistance system.

The CJEU took a more restrictive approach in

Dano

390

, where it found that, for the purpose

of access to certain social benefits, nationals of other Member States can claim equal

treatment with nationals of the host Member State

only if their residence complies

with the conditions of the Directive on free movement of EU citizens. Where the period of

residence is longer than three months but less than five years, one of the conditions laid

down by the Directive for a right of residence is that economically inactive persons must

have sufficient resources of their own. Therefore, Member States may reject claims for

social assistance by

economically inactive

EU citizens who go to another Member State

with no intention of finding employment there.

Alimanovic

391

the CJEU further clarified the requirement of a

real link

between the

jobseeker and the labour market of the Member State in question for the purposes of

entitlement to social assistance. The Court noted that the benefits at issue were intended

to cover

subsistence costs

for persons who could not cover those costs themselves and

were not financed through contributions, but through tax revenue. Those benefits are thus

to be regarded as ‘social assistance’. The Court also clarified that where an EU citizen has

not yet worked in the host Member State or where a period of six months has elapsed, a

jobseeker cannot be expelled from that Member State for as long as he can provide

evidence that he is continuing to seek employment and that he has a genuine chance of

being engaged. However, in this case the host Member State may refuse to grant any

social assistance. In contrast to its earlier

Brey

judgment

392

, the CJEU stated that

individual assessment

is necessary when it comes to access to social assistance.

Finally, in

Förster

393

the CJEU specified the conditions under which

students

from other

Member States are entitled to a

maintenance grant.

The Court observed that Member

States may grant students maintenance only to those students who have demonstrated a

certain degree of integration

into the society of that State, and that the existence of a

sufficient degree of integration may be inferred where the student in question has resided

in the host Member State for a certain length of time. The CJEU held that

five years’

uninterrupted residence

is appropriate in this context.

While there is a lot of information on discrimination on grounds of nationality, racial/ethnic

origin and sexual orientation/civil status in general, there is limited information available

on instances of discrimination on these grounds in relation to free movement and residence

rights. Requests for such information made to the national equality bodies and/or the

ombudsman in each of the nine selected Member States met with little success, with only

limited information provided by most. The information collected is, therefore, largely based

on complaints made to the Your Europe Advice Service, petitions made to the European

Parliament, case law and existing literature.

389

390

391

392

393

Case

C-140/12

Brey

[2013] ECLI:EU:C:2013:565.

C-333/13

Dano

[2014] ECLI:EU:C:2014:2358.

C-67/14

Alimanovic

[2015] ECLI:EU:C:2015:597.

C-140/12

Brey

[2013] ECLI:EU:C:2013:565.

C-158/07

Förster

[2008] ECLI:EU:C:2008:630.

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__________________________________________________________________________________________

Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

7.2.

Discrimination on grounds of nationality

Discrimination on grounds of nationality in this context refers to differences of treatment

between nationals of the host Member State on the one hand and EU citizens and their

TCN family members on the other. As indicated above, all EU citizens residing in an EU

Member State enjoy equal treatment with the nationals of that Member State. This right

also applies to TCN family members who have the right of residence or who have acquired

permanent residence.

The review of all Member State questionnaires, together with the detailed country reports

for the nine selected Member States, have highlighted some recurring instances of

discrimination on grounds of nationality experienced by EU citizens and/or their TCN family

members in exercising their free movement rights. However, most cases do not stem

directly from the implementation of Directive 2004/38/EC’s rights of entry and residence,

but rather to the application of other EU legislation, such as Regulation 495/2011 on the

freedom of workers. They are, nevertheless, important to highlight since they constitute

barriers to the free movement of EU citizens and family members.

Cases of discrimination have been identified in

accessing employment,

including for

Romanian and Bulgarian nationals despite the end of the transitional measures on 1

January 2014, and civil service employment positions being reserved for nationals in

several Member States. In addition, recurring issues have been reported of EU citizens

and/or their TCN family members in

accessing education/schools

on grounds of their

nationality, as well as different tuition fees being imposed on nationals and non-nationals.

Other recurring issues are

different fees

applied to EU citizens compared to nationals,

banks discriminating against non-nationals,

and

price discrimination

for EU

citizens/their TCN family members in

accessing public transport.

7.2.1.

Discrimination on grounds of nationality in accessing employment:

Regulation 492/2011

394

on the freedom of movement of workers provides that any

national of a Member State, irrespective of his place of residence, has the right to take up

available employment and pursue such employment in another Member State with the

same rights as the nationals of that State.

Article 45 of the TFEU establishes the freedom of movement for workers within the EU and

prohibits any discrimination based on nationality ‘between workers of the Member States

as regards employment, remuneration and other conditions of work and employment’

395

Instances of discrimination on grounds of nationality in accessing employment have been

reported in several Member States (e.g.

BE, IE

and the

UK)

396

. These include

discriminatory barriers to accessing certain professions or jobs, barriers to accessing civil

service employment positions, obstacles in observing the necessary formalities to work

legally in the Member State (e.g. obtaining a personal identity number). In addition, EU

citizens and their family members face discriminatory treatment in the workplace.

394

Article 1 of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on

freedom of movement for workers within the Union, OJ L 151, 27 May 2011, available at:

http://eur-

lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32011R0492

395

Article 45(2) of the TFEU.

396

Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

EUU, Alm.del - 2018-19 (1. samling) - Bilag 660: Brev til beskæftigelseskommissær Marianne Thyssen om effektiv håndhævelse og implementering af EU-reglerne

Policy Department C: Citizens' Rights and Constitutional Affairs

__________________________________________________________________________________________

One recurring discriminatory obstacle relates to access to certain professions or jobs.

Access to certain national professions

has been, in some cases, restricted to nationals,

such as notary or government/civil service positions (e.g.

BE, BG, CY, EL, IT and PT),

despite the fact that the roles did not involve the exercise of public authority. Posts in

certain ministries are also often reserved for nationals. These restrictions infringe EU

legislation and constitute discrimination on grounds of nationality. While Article 45(4) of

the TFEU allows Member State authorities to restrict access to certain posts in the public

service to their own nationals, Articles 50 and 51 of the TFEU limit such restrictions to

those activities which require the exercise of official authority. This exception is to be

interpreted restrictively. The CJEU has consistently held that this exception covers posts

involving direct or indirect participation in the exercise of powers conferred by public law

and duties designed to safeguard the general interests of the State or of other public

authorities

397

The CJEU has also held that the assessment of the concept of ‘the

exercise

of public authority’

must take account of EU law and, in particular, the principle of freedom

of establishment. It added that ‘acting in pursuit of an objective in the public interest is

not, in itself, sufficient for a particular activity to be regarded as directly and specifically

connected with the exercise of official authority’

398

. Restricting national professions not

connected to the exercise of official authority would, therefore, be deemed a breach of EU

law.

The Irish education system has also led to discrimination against non-nationals in obtaining

internships as part of their university studies in

Ireland.

This contravenes Regulation

492/2011, which provides that the recruitment of an EU citizen for a post in another

Member State is not dependent on vocational or other criteria that are discriminatory on

the grounds of nationality when compared to the criteria applied to nationals of the

Member State who wish to pursue the same activity

399

Relevant examples: discrimination in accessing employment



In 2011, the CJEU ruled that the requirement to hold Belgian nationality in order

to be appointed as a notary was an infringement of EU legislation by

Belgium

because the activities of a notary are not connected with the exercise of official

authority

400

. Belgium has since amended the law such that candidates must hold

either Belgian nationality or the nationality of an EU Member State

401

In 2012, the

Belgian

equality body (Unia) reported that some job openings at

governmental level, although not involving the exercise of public authority,

prohibited non-nationals from applying in violation with EU law

402



397

Recital 8 of Directive 2014/54/EU of the European Parliament and of the Council of 16 April 2014 on measures

facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers OJ L

128/8

April

2014,

available

at:

http://eur-lex.europa.eu/legal-

content/EN/TXT/PDF/?uri=CELEX:32014L0054;

Case C-290/94

Commission of the European Communities v

Hellenic Republic

[1989] ECLI:EU:C:1989:339.

398

Case C-47/08

European Commission v Belgium

[2011] ECLI:EU:C:2011:334.

399

Article 6 of Regulation 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of

movement for workers within the Union, OJ L 151, 27 May 2011, available at:

http://eur-lex.europa.eu/legal-

content/EN/ALL/?uri=CELEX:32011R0492.

400

Case C-47/08

European Commission v Belgium

[2011] ECLI:EU:C:2011:334.

401

The amendment entered into force on 20 February 2012. Law of 14 November 2011 ‘Amending the law of 25

venôse year XI on the notary office concerning the requirements to be appointed notary’ (Wijziging

van de wet

van 25 ventôse jaar XI op het notarisambt wat de vereisten om tot notaris benoemd te worden betreft),

Official

Journal 10 February 2012.

402

Unia, ‘Annual Report on Discrimination/Diversity 2012’ (Jaarverslag

Discriminatie/Diversiteit 2012),

2013,

available at:

http://www.unia.be/nl/publicaties-statistieken/publicaties/jaarverslag-discriminatie-diversiteit-

2012, p. 159.

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__________________________________________________________________________________________



Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

In certain ministries in

Bulgaria

(e.g. Ministry of the Interior) all posts are reserved

for Bulgarian nationals irrespective of whether the activities are performed as a

civil servant or on the basis of an employment contract

403

. For example, a qualified

lawyer was prevented from applying to work in the Bulgarian Ministry of the Interior

on the basis that he is a Greek national

404

A British/Canadian student living and studying in

Ireland

sought to apply for an

internship to complete his medical training in Ireland. He discovered, however, that

students who applied to study medicine in Ireland through the national third-level

entrance system (the Central Applications Office (CAO)) were prioritised for

internships compared with other non-CAO students, thereby indirectly

discriminating against non-Irish students

405

Ireland,

EU citizens (especially British citizens) who are of Middle Eastern origin

experience considerable difficulty in getting a Personal Public Service number (PPS)

in order to work, as the authorities request evidence of an offer of work before

issuing the number

406



Indirect discrimination

against EU workers has been raised as an issue. For example,

the

UK’s

Trade Union Congress has voiced its concern about the treatment of EU8

407

workers in the workplace. As a result, it staged a campaign to inform these workers of

their rights under UK labour law, which was translated into various European languages

408

Bulgarian and Romanian nationals

continue to face discrimination in accessing

employment in some EU Member States (i.e.

CY, DE, FI and FR)

despite the fact that the

transitional measures imposed on both countries ended on 1 January 2014. Examples of

such discrimination include employment agencies refusing to register Bulgarians, both

Bulgarian and Romanian workers being prevented from accessing certain jobs, taking up

employment and enjoying the same treatment and rights with regard to employment as

other EU workers. As the transitional measures have now been lifted, these practices are

in breach of Article 45(2) of the TFEU which entails ‘the

abolition of any discrimination

based on nationality between workers of the Member States as regards employment,

remuneration and other conditions of work and employment’. However, after the lifting of

the transitional measures, the majority of Member States now do not impose any

restrictions on Bulgarians and Romanians in accessing their labour markets.

One discriminatory obstacle is the

refusal of employment agencies to register

Bulgarian jobseekers. For example, the husband of a Bulgarian citizen living in

Germany

since September 2012 joined her in January 2014 to look for a job. The German

employment agency refused to register him as a jobseeker on the grounds that he was

not registered in an equivalent agency in Bulgaria. He was told to come back in a few

months when he had learned some German’

409

. This contravenes Article 5 of Regulation

495/2011, which provides that an EU citizen who is a jobseeker in another Member State

403

Groenendijk, K., et al., European Report on the Free Movement of Workers in Europe in 2012-2013, 2014, p.9

and 75; Law on the Ministry of Internal Affairs, (‘З

ъ еш

’), State

Gazette No. 53 of 27 June 2014, Article 155.

404

European Commission, Free movement of workers: Commission improves the application of worker's rights

–

frequently asked questions, 26 April 2013, available at:

http://europa.eu/rapid/press-release_MEMO-13-

384_nl.htm.

405

Your Europe Advice, Quarter Feedback Report No. 14, Quarter 4/2015 (October-December), p. 45.

406

Information obtained through consultation with stakeholder (KOD Lyons Solicitors, March 2016).

407

Central and Eastern European Countries joining the EU as part of the 2004 accession, including CZ, EE, HU,

LV, LT, PO, SK and SI.

408

Groenendijk, K., et al., European Report on the Free Movement of Workers in Europe in 2012-2013, 2014 ,

p.82.

409

Your Europe Advice, Quarterly Feedback Report No. 7, Quarter 1/2014, (January-March), p. 54.

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shall receive the same assistance from the employment offices in that Member State as

its national jobseekers.

Moreover, Shaw et al have also remarked upon the way in which Romanian and Bulgarian

nationals are presented by the

media and have commented, more broadly, on the fact

that immigration issues and

EU issues

were both

identified

problematic

areas in

terms of

press coverage

by the 2012 Leveson Inquiry on the Culture, Practices and Ethics

of the Press

410

In the UK a moral panic broke out over ‘tidal floods of new immigrants’

from Romania and Bulgaria

411

. The Telegraph warned

that ‘Britain is powerless to stop

tens of thousands of Bulgarians and Romanians moving to the UK’

412

. The Sun lamented

about ‘Romanian and Bulgarian immigrants threatening to swamp Britain-and

flood our

overstretched jobs market’

413

. In a desperate move, politicians considered a negative

image campaign to deter migrants from coming

414

Relevant examples: discrimination against Bulgarians and Romanians

in accessing employment



Despite the end of the transition period, Bulgarian and Romanian workers are still

excluded from certain jobs in

France,

including certain public function jobs (police,

tax, justice, defence). Bulgarians and Romanians find it more difficult to secure

employment because of their nationality

415

Some French employers are unaware of the end of the transitional measures for

Bulgarian and Romanian citizens. For example, a Romanian citizen found a job in

France

but the French employer said on 1 July 2014 that he cannot sign an

employment contract because rules exist preventing Romanian citizens taking up

employment in France

416

A Bulgarian citizen was working in

Finland

and his employer withdrew €700 from

his pay for taxes. However, the Finnish employer did not provide the citizen with

any documents to prove that he had made the payment

417

A Bulgarian citizen who has lived and worked in

Cyprus

since 2012 as a waitress

complained that her employer had not paid her social security since March 2014,

and also that she worked full-time

plus extra hours but is “insured” as a part time



Shaw, J. et al, ‘Getting to grips with EU citizenship: Understanding the friction between UK immigration law

and EU free movement law’, (2013) Edinburgh Law School Citizenship Studies,

xii, 27-28.

411

Franck Düvell, ‘Romanian and Bulgarian migration to Britain: facts behind the fear’, 28 March 2013, available

at:

https://www.opendemocracy.net/ourkingdom/franck-d%C3%BCvell/romanian-and-bulgarian-migration-to-

britain-facts-behind-fear.

412

Christopher Hope, ‘Britain powerless to stop tens of thousands of Bulgarians and Romanians moving to UK

year,

Theresa

May

admits’,

November

2012,

available

at:

http://www.telegraph.co.uk/news/uknews/immigration/9670141/Britain-powerless-to-stop-tens-of-thousands-

of-Bulgarians-and-Romanians-moving-to-UK-next-year-Theresa-May-admits.html.

413

Nick Francis, ‘The UK is much better than Romania. All my mates will come in 2014’, 11 November 2012,

available at:

https://www.thesun.co.uk/archives/news/1036548/the-uk-is-much-better-than-romania-all-my-

mates-will-come-in-2014/.

414

Franck Düvell, ‘Romanian and Bulgarian migration to Britain: facts behind the fear’, 28 March 2013, available

at:

https://www.opendemocracy.net/ourkingdom/franck-d%c3%bcvell/romanian-and-bulgarian-migration-to-

britain-facts-behind-fear.

415

L’OBS, ‘Bulgarian and Romanian workers, what will change on 1 January 2014?’ (‘Travailleurs

bulgares et

roumains:

qu’est-ce

qui

change

1er

janvier?’),

December

2013,

available

at:

http://tempsreel.nouvelobs.com/monde/20131230.OBS0941/travailleurs-bulgares-et-roumains-qu-est-ce-qui-

change-le-1er-janvier.html.

416

Your Europe Advice, Quarterly Feedback Report No. 8, Quarter 2/2014 (April-June), p.42.

417

Your Europe Advice, Quarterly Feedback Report No. 10, Quarter 4/2014 (October-December), p. 45-46.

410

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worker. She asked her employer why he had not insured her and he responded

that he had no money

418

7.2.2.

Discrimination on grounds of nationality in accessing education

Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

Instances of EU citizens encountering difficulties in accessing education due to

discrimination on grounds of their nationality have been reported in Ireland. One particular

obstacle concerns the lack of equality in

access to vocational training

for non-nationals.

This infringes EU legislation, which protects individuals from being refused access to

training or education in another EU Member State on grounds of their nationality

419

. In

particular, it breaches Article 7 of Regulation (EEC) No 1612/68

420

, which stipulates that

EU citizens have the same right as national workers to access training in vocational schools

and retraining centres, and under the same conditions.

Relevant example: Discrimination in accessing education



The Council of Europe Committee of Social Rights found a lack of equality in access

to vocational training for nationals of other Member States in

Ireland

421

. The report

states that the length of residence condition applying to access to vocational

training amounts to indirect discrimination, as EU citizens lawfully residing or

working in Ireland are more often affected by this condition than are Irish

nationals

422

In addition, a number of complaints have been made to the Your Europe Advice Service

about

higher tuition fees

being applied to non-nationals in accessing education in

BG,

DK, EE, EL, MT, PL and RO.

There are several reports of discrimination in the charging

of university fees, with non-nationals and EU citizens who have not acquired permanent

residency status or are not migrant workers being charged more than nationals. This is in

breach of Article 18 of the TFEU.

Relevant examples: Higher tuition fees for non-nationals



A Greek citizen enrolled at a university in

Bulgaria

was initially told that the annual

fees were EUR 560, but it was subsequently raised to EUR 3,000, despite the

university website statement that the annual fees for Bulgarian nationals are

approximately EUR 290

423

Poland

applies higher university tuition fees to EU citizens who have not acquired

permanent residency status, or who are not migrant workers

424



Ibid.

Your Europe Advice

Service, ‘Admission and entry to university’, 24 May 2016, available at:

http://europa.eu/youreurope/citizens/education/university/admission-entry-conditions/index_en.htm

420

Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within

the Community, OJ L 257/2, 19 October 1968, available at:

http://eur-lex.europa.eu/legal-

content/EN/TXT/PDF/?uri=CELEX:31968R1612&from=EN.

421

European Committee of Social Rights, Conclusions 2012 (IRELAND) Articles 1, 9, 10, 15, 18, 20, 24 and

the

Revised

Charter

(January

2013),

available

at:

http://www.coe.int/t/dghl/

monitoring/socialcharter/conclusions/State/Ireland2012_en.pdf;Groenendijk,

K., et al., European Report on the

Free Movement of Workers in Europe in 2012-2013, 2014, p 69.

422

Groenendijk, K., et al., European Report on the Free Movement of Workers in Europe in 2012-2013, 2014, p

69.

423

Your Europe Advice, Quarterly Feedback Report No. 9, Quarter 3/2014 (July-September) , p.39.

424

Act of 17 July 2005

–

Law on Higher Education (Ustawa

– Prawo o szkolnictwie wyższym),

Journal of Laws of

2005, No.164, item 1365, as amended.

419

418

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

A British student studying medicine in

Romania

realised that he was paying EUR

5,000 in tuition fees, while Romanian students are paying EUR 1,000

425

The University of

Malta

offers scholarships only to students who are Maltese citizens, or

who have at least one Maltese parent, who have resided in Malta for a period of not less

than five years before their course of study, who have completed their term of compulsory

education, and who are attending their classes regularly and making satisfactory

progress

426

. This goes beyond the requirements stipulated in Article 24(2) of Directive

2004/38/EC, which states that prior to the acquisition of the right of permanent residence,

Member States are not obliged to grant maintenance aid for studies, including student

grants or student loans to persons other than workers, self-employed persons, persons

who retain such status and members of their families.

7.2.3.

Discrimination due to fees/price differences and discrimination in access to

services

Different fees

apply to EU citizens than to nationals of that Member State, with examples

reported in

BE, IE, IT, PL and SI

427

. Higher fees (and sometimes additional costs) have

been applied to EU citizens for

residence cards, car insurance

premiums, marathon

entry fees, dormitory fees, etc. This breaches Article 18 of the TFEU. The charging of

higher fees for residence cards also breaches the Directive, which states that all residence

documents ‘shall be issued free of charge or for a charge not exceeding that imposed on

nationals for the issuing of similar documents’

428

Another example is an EU citizen who was unable to display his identity card at a border

control and was fined more than a national would have been. This is in breach of the

Directive in that non-nationals who have been checked by a Member State authority and

are not carrying their registration certificate or residence card should be penalised with

the same sanctions as those imposed on that country’s nationals for failing to carry their

identity card

429

Relevant examples: Different fees



There have been cases where EU citizens were charged more to have

their

residence cards issued

compared to

Belgian

citizens

430

. Foreigners also pay a

range of other additional costs, such as

consular taxes, bank transfers

and

municipal taxes

431

Insurance companies charge EU citizens higher fees than they do

Irish

citizens. A

number of complaints and petitions have been made in this regard. For example,

one petitioner claimed that he was charged 44% more on his

car insurance

premium

because he did not have an Irish driving licence

432



Your Europe Advice, Quarterly Feedback Report No. 8, Quarter 2/2014 (April-June) , p. 37.

Your Europe Advice, Quarterly Feedback Report No. 11, Quarter 1/2015 (January-March) , p 42.

427

Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

428

Article 25(2) of Directive 2004/38/EC.

429

Article 26 of Directive 2004/38/EC.

430

Your Europe Advice, Quarterly Feedback Report No. 10, Quarter 4/2014 (October-December) , p. 26.

431

Council of State (Raad

van State),

Advice 57.000/4 of 4 February 2015, Official Journal 20 February 2015;

Myria, ‘2015 Migration in numbers and in rights’ (2015

Migratie in cijfers en in rechten),

2016, available at:

http://www.myria.be/files/Migratie-verslag_2015-LR.pdf,

p. 210-211.

432

Petition No. 1819/2014 to the European Parliament.

426

425

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

Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

Your Europe Advice was notified of a situation where the organisers of the

Warsaw

Marathon

on 28 September 2014 provided a reduced fee for those either resident

Poland

or of Polish nationality. While the first ground (residence) can be

justified, applying different rates to Polish nationals and other EU nationals living

in a Member State other than Poland contravenes Article 18 of the TFEU and

constitutes discrimination on the ground of nationality

433

One complainant reported that he travelled by car to Croatia via

Slovenia.

When

he was

unable to produce his identity card

at the border control, he was

fined

EUR 500. The police officers told him that, had he been Slovenian, the fine would

have been EUR 400

434

. Another example is that of a Spanish citizen who studied in

a Slovenian university under the Erasmus+ programme. He complained about the

different

dormitory fees

for Slovenian and EU students, with EU students being

charged EUR 20 more

435



A number of complaints have been made to the Your Europe Advice Service about banks

which discriminate against non-nationals in

BG, DK, FI, MT and PL

refusing them

services

and imposing more restrictive conditions than those imposed on nationals

436

These discriminatory practices are in breach of Article 18 of the TFEU.

Relevant examples: Banks discriminating against non-nationals



Bulgarian

bank (CCB) has a policy

not to issue credit cards

to foreigners,

including EU nationals residing permanently in Bulgaria

437

Danish

bank provided different conditions for a loan to a Dutch citizen than it

does to Danish citizens, despite him being legally resident there for eleven years.

This is discrimination based on nationality

438

A recurring issue in

Finland

is that of discriminatory behaviour of Finnish financial

service providers who either require

excessive documentation

from citizens of

other EU Member States, or refuse to provide services on grounds of the applicant’s

nationality

439

. In 2014, an Estonian client was denied online banking access codes

because he used his Estonian passport as a form of identification. The

Administrative Court of Eastern Finland recognised the bank’s practice as illegal

discrimination and the bank changed its identification policy

440

Polish banks sometimes require higher security for repayment from non-Polish

residents who wish to take out a mortgage in

Poland

441



Finally, another recurring issue of discrimination on grounds of nationality is

price

discrimination

experienced by non-nationals when using public transport in another

Member State. For example, non-nationals have been charged higher rates for bus fares

Your Europe Advice, Quarterly Feedback Report No. 9, Quarter 3/2014 (July-September), p.54.

Your Europe Advice, Quarterly Feedback Report No.10, Quarter 4/2014 (October-December), p.21.

435

Ibid, p.41.

436

Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

437

Your Europe Advice, Quarterly Feedback Report No. 13, Quarter 3/2015 (July-September), p.65.

438

Ibid, p. 71.

439

Your Europe Advice, Quarterly Feedback Report No. 4, Quarter 2/2013 (April-June), p. 53.

440

Pimiä, K. (Non-Discrimination Ombudsman), Administrative Court confirmed that S-Pankki had discriminatory

identification principles (18.8.2015), Hallinto-oikeus toteso S-Pankilla olleen syrjivät tunnistusperiaatteet

(päivitetty 18.8.2015), 18 August 2015, available at:

http://www.syrjinta.fi/web/fi/-/hallinto-oikeus-totesi-s-

pankilla-olleen-syrjivat-tunnistusperiaatteet.

441

Your Europe Advice, Quarterly Feedback Report No. 9, Quarter 3/2014 (July-September), p. 59.

434

433

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compared to nationals and often do not benefit from free public transport like nationals

do. These issues have been reported in

DK, MT, NL and SK

442

, and are in breach of Article

18 of the TFEU.

Relevant examples: Price discrimination for using public transport



Non-national EU citizens have faced direct discrimination on the basis of their

nationality when using bus services in

Malta

443

paying higher rates

for their bus

fares than do Maltese citizens. The EU Commission launched infringement

proceedings against Malta for discriminatory bus transport tariffs. As a result, an

amendment to the Maltese Regulations removed the discrimination

444

. A

complainant also argued that the new carrier which took control of the national

transport company (Malta Public Transport) introduced electronic tickets encoded

on the transport card to which only nationals were entitled. Persons from other EU

Member States were required to buy the card at a higher price

445

One petitioner claimed that his daughter, a German national studying in

the

Netherlands,

cannot use public transport free of charge, as Dutch students do

446

In Bratislava,

Slovak

nationals over a certain age are entitled to free public

transport. An Austrian citizen was informed, however, that nationals of other

Member States must continue to pay for public transport, irrespective of their

age

447



7.3.

Discrimination on grounds of civil status/sexual orientation

Equal treatment regardless of civil status and sexual orientation in the context of free

movement means that, once a civil partnership is recognised in the host Member State,

EU citizens and their family members are entitled to the same treatment as married EU

families when exercising their free movement rights (Article 2 (b)). A civil partnership

would also in any case fall under the remit of Article 3(2) (a) or (b) of the Directive and

activate the duty of facilitation of the entry and residence rights of partners as members

of the household or as partners

in a durable relationship, duly attested. ‘Partnership’

includes both ‘civil partnerships’ and ‘registered partnerships’.

Issues of discrimination

could occur when additional barriers exist for same-sex partners in comparison to

different-sex partners, such as when a

EU citizens’ partnership

or marriage is not

recognised for the purposes of entry or residence in the country.

There are very few complaints which have been made to the Your Europe Advice Service

or petitions which have been made to the European Parliament on reported instances of

discrimination against EU citizens and/or their TCN family members on grounds of civil

status/sexual orientation. However, information on such instances of discrimination is

available through other means as some national NGOs and ILGA Europe collect this

information. Moreover, academic literature and press articles often mention or report on

these issues, and some cases have also been brought to court.

Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

Carabott, S. (Times of Malta), ‘Expats put adverts on ‘discriminatory’ buses’, 19 August 2013, available at:

http://www.timesofmalta.com/articles/view/20130819/local/Expats-put-adverts-on-discriminatory-

buses.482392;

Your Europe Advice, Quarterly Feedback Report No. 7, Quarter 1/2014, (January-March), p. 68.

444

Petition No 1391/2013 to the European Parliament.

445

Your Europe Advice, Quarterly Feedback Report No. 12, Quarter 2/2015 (April-June), p.55.

446

Petition No 2545/2013 to the European Parliament.

447

Your Europe Advice, Quarterly Feedback Report No. 5, Quarter 3/2013 (July-September), p.51.

443

442

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7.3.1.

Recognition of same-sex

partnerships in Member States’ legislation

Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

Same-sex partnerships are recognised in the national legislation of 22 Member States

448

For example, the

Finnish

Registered Partnership Act 2001 (Laki

rekisteröidystä

parisuhteesta)

introduced registered partnerships for same-sex partners only and grants

a similar set of rights and responsibilities to those obtained by different-sex partners

through marriage

449

. In

Ireland,

civil partnerships between same-sex couples are

permitted under the Civil Partnership and Certain Rights and Obligations of Cohabitants

Act 2010

450

. This Act grants entry and residence rights to registered partners

451

. The Act

allows for the recognition of same-sex unions, either marriages or civil unions, entered

into abroad

452

Some Member States do not recognise same-sex partnerships in their legislation

453

Interestingly, while

the UK recognises same-sex civil partnerships, it does not

recognise opposite-sex civil partnerships

454

, even after the introduction of marriage

for same-sex couples into UK law

455

Table 3: Member States legal recognition of civil partnerships, same-sex

marriage and adoption by same-sex partners

Member State

Civil Partnership

Yes

Yes/No

456

Yes

Marriage

No (pending)

Yes

Constitutional ban

No (pending)

Yes

Constitutional ban

No (pending)

Constitutional ban

Yes

AT, BE, HR, CZ, DE, DK, FI, FR, HU, IE, IT, LU, MT, PT, NL, CY, EE, EL, ES, SI, SE, UK

Union citizenship: developments, impact and challenges,

The XXVI FIDE Congress in Copenhagen 2014,

Congress Publications Vol. 2, DJØF Publishing, Copenhagen, 2014, p. 72, and p. 251.

450

The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (No .24 of 2010), available

at:

http://www.irishstatutebook.ie/eli/2010/act/24/enacted/en/html.

451

FRA, ‘Protection against discrimination on grounds of sexual orientation,

gender identity and sex

characteristics in the EU: Comparative legal analysis

Update 2015’, 2015, available

at:

http://fra.europa.eu/sites/default/files/fra_uploads/protection_against_discrimination_legal_update_2015.pdf,

p. 84.

452

Article 5 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (No.24 of 2010),

available at:

http://www.irishstatutebook.ie/eli/2010/act/24/enacted/en/html.

453

BG, LV, LT, PL, RO, SK.

454

S.216(1) Civil Partnership Act 2004.

455

Via the Marriage (Same Sex Couples) Act 2013.

456

Civil partnerships are recognised in 16 out of 17 regions and both autonomous cities.

449

448

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Member State

Civil Partnership

Yes

Marriage

Constitutional ban

Yes

Constitutional ban

Recognition

undertaken abroad

Yes

Constitutional ban

Yes

Constitutional ban

Yes/No

457

marriage

If a Member States recognises civil partnerships and same-sex marriages in their

legislation, they normally also guarantee such EU citizens/TCNs in civil partnerships/same-

sex marriages free movement rights (except

BE, CY, CZ

and

SI).

In addition, all of the

Member States except

Slovakia

and

Poland

which do not legally recognise civil

partnerships and same-sex marriages still guarantee such EU citizens/TCNs in civil

partnerships/same-sex marriages free movement rights.

7.3.2.

Recognition of same-sex couples in a civil partnership and free movement

rights

Of the six Member States which do not recognise same-sex partnerships in their

legislation, four recognise same-sex couples in a civil partnership for the purposes of free

movement rights (i.e.

BG, LV, LT

and

RO).

These Member States consider same-sex

partners as

family members

under Article 3(2)(a) of the Directive. Partnerships are not

recognised under Article 2(2)(a) of the Directive

458

Latvia

does not have special clauses

on partners and partnership in its legislation, and same-sex marriage has been banned by

the Latvian Constitution since 2005

459

Latvia, however, considers

partners as

household members

under Article 3(2)(a) of the Directive, thereby granting them the

‘facilitated’ entry

and residence rights conferred by the Directive

460

. Although

Bulgaria

does not legally recognise registered partnerships, and same-sex marriages are not

considered ‘equivalent’ to heterosexual marriage, the transposing legislation allows same-

sex couples full rights of free movement and residence by considering registered partners

family members

461

. Similarly, same-sex marriages and partnerships are not

457

Since 2014 in England and Wales and Scotland; not in Northern Ireland and Gibraltar.

European Parliament, ‘Comparative study on the 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’,

2009,

410.650,

available

at:

http://www.europarl.europa.eu/RegData/etudes/

etudes/join/2009/410650/IPOL-JURI_ET(2009)410650_EN.pdf, p.212 and p.216.

459

Sheeter L. (BBC News), Latvia cements gay marriage ban, 15 December 2005, available at:

http://news.bbc.co.uk/2/hi/europe/4531560.stm.

460

European Parliament, ‘Comparative study on the 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’,

2009,

410.650,

available

at:

http://www.europarl.europa.eu/RegData/etudes/etudes/

join/2009/410650/IPOL-JURI_ET(2009)410650_EN.pdf,p.212 and p.216.

461

European

Parliament, ‘Comparative study on the 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’,

458

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

recognised by Lithuanian law, although non-national

same-sex couples have full rights

of free movement

and residence in

Lithuania.

This is because the Lithuanian Law on

the Legal Status of Aliens accords the status of family members to couples in a registered

partnership, thereby granting them free movement and residence rights

462

Overall, same-sex couples in a civil partnership are legally entitled to full rights of free

movement and residence in most EU Member States.

7.3.3.

Discrimination against same-sex couples in a civil partnership in exercising

their free movement and residence rights

Some instances have been reported of EU citizens in same-sex registered partnerships

being discriminated against in exercising their free movement and residence rights in some

Member States.



Civil partnership is recognised in the host Member State

One particular issue is

the fact that EU citizens’

civil partnership is not recognised for

the purposes of entry or residence

in some Member States

although the Member

State recognises civil partnerships.

This is in breach of the Directive, according to

which partners in a registered partnership have the right to entry and residence if the

legislation of the host Member State treats registered partnerships as equivalent to

marriage

463

. For example,

Slovenia

has recognised same-sex registered partnerships in

its legislation since 2005

464

. Its Aliens Act, however, does not recognise same-sex

registered partnerships contracted abroad, even though registered partnerships are

permitted in Slovenia under the Registration of a Same-Sex Civil Partnership Act

465

. For

example, in 2011 the Human Rights Ombudsman of the Republic of Slovenia examined a

complaint of a same-sex couple (EU national

–TCN)

who registered their same sex civil

partnership abroad but were not considered family members under the Aliens Act and

therefore the partner of Serbian nationality was not able to acquire temporary residence

in Slovenia

466

In addition, there have been some reports of refusal to recognise registered partnerships

Belgium.

For example, a TCN registered partner of a UK citizen was refused a visa

because Belgium does not recognise registered partnerships from the UK and because it

did not bear apostille

467

.Another example is that of a TCN who had registered a civil

partnership in the UK with a UK national, but whose application was rejected by the

Cypriot

immigration authorities despite the fact that Cyprus recognises same-sex civil

2009,

410.650,

available

at:

http://www.europarl.europa.eu/RegData/etudes/etudes/

join/2009/410650/IPOL-JURI_ET(2009)410650_EN.pdf;

European Commission, Report on the 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, COM(2008) 840 final.

462

Article 2, para 4 of the Law on the Legal Status of Aliens of the Republic of Lithuania No. IX-2206.

463

Article 2 of Directive 2004/38/EC.

464

Registered Partnership (2005) (Zakon

o registraciji istospolne partnerske skupnosti) (ZRIPS) Ur.l.

RS, št. 65/2005;

European Parliament, ‘Comparative study on the 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’,

2009,

410.650,

available

at:

http://www.europarl.europa.eu/RegData/

etudes/etudes/join/2009/410650/IPOL-JURI_ET(2009)410650_EN.pdf,

p. 191.

465

Carrera, S. and Faurer Atger, A., Implementation of Directive 2004/38 in the context of EU enlargement, April

2009, Centre for European Policy Studies, Brussels, 2009, available at:

http://aei.pitt.edu/10758/1/1827.pdf, p

466

Human Rights Ombudman of the Republic of Slovenia, Annual Report 2011, p 190.

467

Your Europe Advice, Quarterly Feedback No. 9, Quarter 3/2014 (July-September), p. 18.

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Policy Department C: Citizens' Rights and Constitutional Affairs

__________________________________________________________________________________________

partnerships in its own legislation

468

. The rejection was issued on the basis that the

national legislative framework does not recognise same-sex marriages

469

. The Cypriot

Equality Body found that the decision of the immigration authority was found to be

unjustifiable discrimination on the grounds of sexual orientation

470

Other discriminatory obstacles have been encountered by same-sex partners in the

Czech

Republic,

such as being barred from acquiring a

residence card or work permit

and

being ineligible for

financial compensation

in the case of

death

of one of the

partners

471

. As the Czech Republic recognises same-sex civil partnerships in its

legislation, these obstacles breach a number of provisions of Directive 2004/38/EC,

namely Article 3(2)(b) which grants the right of entry and residence in the EU to partners

with whom an EU citizen has a durable relationship, and Article 12 concerning retention of

the right of residence by family members in the event of death or departure of the Union

citizen.

Cyprus,

discrimination against a spouse in a

same-sex marriage

was reported. A

Cypriot citizen and his Canadian spouse

472

were married in Canada and moved

permanently to Cyprus, where they requested a

residence permit

for the Canadian

spouse as family member, in accordance with the Directive

473

. The request was

rejected

on the grounds that he was not considered a family member of a Cypriot citizen because

their

marriage

was not recognised by Cypriot legislation

474

. Instead, the partner was

granted a temporary residence permit as a visitor for one year

475

. As a visitor, the partner

did not have the right to work or to open his own bank account (he could only have a

special bank account for visitors), which created numerous problems in his daily life. The

Ombudsman held that the complainant did not receive equal treatment because his right

to work was directly linked with the non-recognition of same-sex marriage under Cypriot

law

476

. Consequently, the Ombudsman held that the denial of

the spouse’s

right to work

constituted unjustified adverse treatment directly linked to his sexual orientation, and

recommended that the Cypriot authorities re-examine his request with a view to granting

him the right to work

477

Notably, in June 2016, the European Court of Human Rights condemned

Italy

because of

its

refusal to grant a residence permit to a same-sex couple on family grounds

478

This refusal violated Article 14 (prohibition of discrimination) taken together with Article 8

468

U. Neergaard, C. Jacqueson, N. Holst-Christensen, Union Citizenship: development, impact and challenges,

XXVI FIDE Congress in Copenhagen 2014, Congress Publications vol. 2, DJØF Publishing, Denmark, 2014, p.

399.

469

Ibid.

470

Ibid;Case Ref. No. A.K.R. 68/2008, dated 23.04.08. For analysis see

http://www.nodiscri

mination.ombudsman.gov.cy/sites/default/files/017_fleeing_homophobia_seeking_

safety_in_europe_-

_asylum_on_the_basis_of_sexual_orientation_and_gender_identity.doc.

471

European Parliament, ‘Comparative study on the 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’,

2009,

410.650,

available

at:

http://www.europarl.europa.eu/RegData/etudes/

etudes/join/2009/410650/IPOL-JURI_ET(2009)410650_EN.pdf, p. 189.

472

Complaint No. 159/2008. The facts and legal issues raised in the complaint were virtually identical to the case

of Tadeucci and McCall v Italy.

473

U. Neergaard, C. Jacqueson, N. Holst-Christensen, Union Citizenship: development, impact and challenges,

XXVI FIDE Congress in Copenhagen 2014, Congress Publications vol. 2, DJØF Publishing, Denmark, 2014, p.

400.

474

Ibid.

475

Ibid.

476

Ibid.

477

Ibid.

478

Judgment in

Taddeucci and McCall v. Italy,

of 30 June 2016, application. 51362/09.

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

(right to respect for private and family life) of the European Convention on Human Rights.

In particular, the Court found that in deciding to treat same-sex couples in the same way

as heterosexual couples without any spousal status, Italy had breached the applicants’

right not to be subjected to discrimination based on sexual orientation in the enjoyment

of their rights under Article 8 of the Convention. The restrictive interpretation of the

concept of family member, as applied to the case, did not take due account of the

applicants’ personal situation and in particular their inability to obtain a form of legal

recognition of their relationship in Italy. In fact, the same-sex couple could not marry or,

at the relevant time, obtain any other form of legal recognition of their situation in Italy.



Civil partnership is not recognised in the host Member State

A number of discriminatory obstacles to free movement have been encountered by same-

sex couples in registered partnerships in

Slovakia

and

Poland,

neither of which

recognises same-sex partnerships in their legislation. These obstacles include

refusal of

the right of permanent residence

status,

non-recognition of residence cards

issued

by another Member State leading to refusal of entry into Poland, uninsured persons being

excluded from the health insurance of their partner,

refusal to issue a birth certificate

to children of same-sex partners, and refusal of property purchases. While there is no

obligation to facilitate the free movement rights of TCN partners of EU citizens if registered

partnerships are not recognised in the Member States’ legislation,

in practice non-

recognition results in discriminatory practices that do not seem aligned with EU free

movement rights and rights to non-discrimination based on sexual orientation guaranteed

by Article 21 of the Charter.

Relevant examples: Discrimination against same-sex registered

partners



Poland,

partners (whether different-sex or same-sex) are not considered family

members as per Articles 2(2) and 3(2) of the Directive, as Poland does

not legally

recognise

any form of

partnership.

As a consequence, Polish Border Guards did

not previously recognise

the

residence cards of partners

of an EU citizen

–

whether same-sex or different sex

–

issued by another Member State,

due to

its own lack of recognition of civil partnerships. In such cases, Border Guards

required an entry visa, or other documents, from TCNs, in the absence of which

they were

refused entry

into Poland. For example, in 2012 the Border Guard in

Katowice-Pyrzowice in Poland refused entry to a Peruvian national in a civil

partnership with an EU citizen, contracted in the UK

479

. Following recent judgments

of the Polish Courts, the Border Guards are

now obliged to facilitate the entry

of these persons.

However, a Chinese man in a civil partnership with a Polish

citizen was

refused entry

Poland

in July 2015 (despite providing his Irish

residency card) on the grounds that Poland does not recognise same-sex civil

partnerships. As a result, the man had to apply for a visa at the airport which took

a very long time to issue

480

As a consequence of the non-recognition by

Polish

law of same-sex marriages or

any form of civil partnership, an uninsured person living in such a

partnership



479

480

Administrative Decision No. 93/2012/KGSG of 23 November 2012.

Information obtained through consultation with stakeholder (ILGA Europe, May 2016).

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Policy Department C: Citizens' Rights and Constitutional Affairs

__________________________________________________________________________________________

cannot benefit

from the

health insurance of his/her partner.

A number of

complaints have been received by MPs in this regard

481



A Polish person and a British person, both living in

Poland,

brought an action

against Poland before the European Court of Human Rights in Strasbourg, after

Polish authorities refused to issue a Polish birth certificate to their child

482

7.4.

Discrimination on grounds of racial or ethnic origin

Little information is available on EU citizens and/or their TCN family members being

discriminated against on grounds of their racial or ethnic origin in exercising their free

movement and residence rights. Most Member States have no reported instances of

discrimination on grounds of racial or ethnic origin in relation to such rights.

However, one ethnic group is reported to be particularly vulnerable to discrimination in

accessing their free movement and residence rights in some Member States: the

Roma.

Roma have, for example, faced discrimination in access to employment, education,

financial services, accommodation/housing and social protection in a number of Member

States (e.g.

483

and

484

). They are also prevented from registering in another Member

State, or from living in caravans, and are subjected to evictions, expulsions and

deportations as a result. These obstacles faced by Roma are in breach of a number of

provisions of EU legislation, including Article 24 of the Directive, Article 21 of the Charter

of Fundamental Rights of the EU, and Article 10 of the TFEU.

7.4.1.

Discriminatory barriers for Roma in exercising their rights to residence

Roma have faced numerous obstacles in

registering their residence

BE, ES and PL.

This not only breaches the provisions prohibiting discrimination on grounds of racial or

ethnic origin set out in Article 21 of the Charter and Article 10 of the TFEU, but also Article

24 of the Directive (EU citizens residing in another Member State shall be treated equally

to nationals of that Member State in exercising their free movement and residence rights).

Recital 31 of the Directive also provides that it is to be implemented by the Member States

without discrimination between the beneficiaries of the Directive on grounds of race, ethnic

or social origin and membership of an ethnic minority’.

Nowosielska K., ‘People living in partnerships do not benefit from the healthcare insurance of their partners’

(Osoby

żyjące w związkach partnerskich nie skorzystają z

ubezpieczenia zdrowotnego swojego partnera),

Rzeczpospolita 2013, available at:

http://www.rp.pl/artykul/1071947-Osoby-zyjace-w-zwiazkach-partnerskich-

nie-skorzystaja-z-ubezpieczenia- zdrowotnego-swojego-partnera.html.

482

Newsweek Polska, ‘Why can 4-year old Maria not obtain a birth certificate?’

(Dlaczego

4-letnia

Maria nie może

otrzymać aktu urodzenia?),

available at:

http://polska.newsweek.pl/dziecko-lesbijek-nie-moze-otrzymac-w-

polsce-aktu-urodzenia,artykuly,365352,1.html.

483

UN Committee on the Elimination of Racial Discrimination (CERD), Concluding observations on the sixteenth

to nineteenth periodic reports of Belgium, CERD/C/BEL/CO/16-19 (2014), 14 March 2014, available at:

http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqhKb7yhsr69Gyhm7QM1Oqn

y37itcWjEVavPqZmo0A3IoVNYN%2BfThsdRHcvMRNdzsPMIqHGbiopEXs7oxk8Iw5rxC3%2FHK2g9a8DG2pngeR0

CKTaCsB9gxTxygy9AuM7h9swivHNy3Q%3D%3D,

at para. 18;CERD, Concluding observations of the Committee

on the Elimination of Racial Discrimination, CERD/C/BEL/CO/15 (2008), 11 April 2008, available at:

http://www.un.org/ga/search/view_doc.asp?symbol=CERD/C/BEL/CO/15,

at para. 22.

484

GISTI, End of the transitional period for Romanians and Bulgarians in France: what changes? A briefing note

from Gisti and Romeurope (Fin

de la période transitoire pour les Roumains et les Bulgares en France: quels

changements? Une note d’information Gisti

et Romeurope),

30 December 2013, available at :

http://www.gisti.org/spip.php?article3377.

481

100

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

Relevant examples: Roma prevented from registering



Poland,

Romanian citizens of Roma origin living in Poland cannot register their

residence due to their lack of sufficient resources. As a result, they are

discriminated against by the Polish authorities who cannot provide them with

comprehensive support from the social assistance system

485

Belgium,

the Equality Body, Unia, reports antiziganism by public figures and

authority figures, such as municipal officials, refusing to register Roma

486

Spain,

some administrative burdens to

prove residence

are particularly

difficult for Romanian citizens of Roma origin to fulfill. In Spain, there is an

obligation to be registered in the list of registered inhabitants of the town where

the person resides. Even if, according to the national legislation

487

, any address is

acceptable for this registration (even a fictitious one is allowed if the Social Services

are aware that the individual is homeless), the process to allow the registration of

homeless people (as a majority of Romanians citizens of Roma origin officially are)

is not sufficiently guaranteed

488

. As a consequence, Roma citizens face serious

difficulties in proving the continuous periods of residence necessary to obtain

permanent residence, amounting to discrimination

489



Another issue is that some Member States (i.e.

BE, FR, LU) prevent Roma from living

in caravans,

do not provide enough caravan sites to accommodate Roma, and subject

them to

evictions, expulsions and deportations.

This is in breach of the Charter, the

TFEU and Article 27 of Directive 2004/38/EC as restrictions to the right of entry and

residence are only permissible on grounds of public policy, public security or public health,

which are not present in these cases.

101

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Policy Department C: Citizens' Rights and Constitutional Affairs

__________________________________________________________________________________________

Relevant examples: Roma prevented from living in caravans and

subjected to evictions/expulsions and deportations



Luxembourg,

it is impossible for Roma to live in caravans, as campsites are

not considered valid addresses and are not recognised for the registration of

residence

490

In 2012,

Belgium

was condemned by the European Committee of Social Rights for

not respecting the housing rights of Roma due to the lack of sufficient caravan sites

and the expulsion of Roma families from sites where they were illegally staying

491

At least 100 children of caravan dwellers could not attend school in 2014 as a result

of the structural lack of caravan sites in Belgium. In addition, the families were

forced to keep moving because the illegal sites where they live are often cleared

without any legal alternative

492

. In addition, Roma face increasing racial

prejudice

493

. For example, in 2014, Roma were forced to leave private industrial

land they were illegally occupying by a DJ engaged by the mayor to play loud music

near the caravans

494

. In 2015, local authorities decided to dig trenches in order to

prevent caravan dwellers from settling in a specific neighbourhood

495

The 2015 Amnesty International Annual Report for

Portugal

mentions

discrimination against Roma as one of the main human rights problems in Portugal,

making reference to forced evictions of Roma families

496

France

in 2013, GISTI

(Groupe d’information et de

soutien des immigrés

–

information and support group for immigrants) reported Roma being evicted from

slums without a proper case-by-case assessment and illegal expulsions from the

territory without individual assessments (in breach of Article 28 of Directive

2004/38/EC)

497

. There was a mass expulsion of Bulgarian and Roma of Romanian

origin from France in 2010, along with the clearing

of ‘unauthorised’ Roma

settlements by the French Government

498

. Following the mass expulsion of

Romanian and Bulgarian nationals of Roma origin from France, the French



Les Roms en Europe au 21e siècle violences, exclusions, précarité: Rapport de l’Association européenne

pour

la Défense des droits de l’Homme, coordonné par Philippe Goossens et Erell Chardon, sur base des recherches

initiées par Sabrinna Sanogo, Association Européenne pour la Défense des Droits de l’Homme, Brussels, October

2012,

available

at:

http://www.aedh.eu/plugins/fckeditor/userfiles/file/Discriminations

%20et%20droits%20des%20minorit%C3%A9s/RAPPORT%20Roms%20AEDH.pdf, p. 28.

491

European Committee of Social Rights,

Internationale Federatie van Liga’s voor Mensenrechten/Fédération

Internationale des Ligues des Droits de l’Homme (FIDH) v Belgium,

complaint nr. 62/2010.

492

De Standaard, ‘Children of caravan dwellers have a full year of obligatory summer holiday’ (Kinderen

woonwagenbewoners hebben heel jaar verplichte zomervakantie),

30 June 2014, available at:

http://www.standaard.be/cnt/dmf20140630_01162101.

493

European Commission against Racism and Intolerance, ECRI Report on Belgium (fourth monitoring cycle),

CRI(2009)18,

May

2009,

available

at:

http://www.aedh.eu/plugins/fckeditor/userfiles/

file/Discriminations%20et%20droits%20des%20minorit%C3%A9s/Report%20Belgium_26_05_09.pdf,

at para.

123.

494

Het Laatste Nieuws, ‘Mayor chases gypsies away with loud music’ (Burgemeester

verjaagt Roma met luide

muziek),

July

2014,

available

at:

http://www.hln.be/hln/nl/957/Binnenland/article/

detail/1945374/2014/07/16/Burgemeester-verjaagt-zigeuners-met-luide-muziek.dhtml.

495

Unia, ‘After the wall, now also ditches against caravan dwellers’ (Na

de muur, nu ook geulen tegen

woonwagenbewoners),

2015,

available

at:

http://unia.be/nl/artikels/na-de-muur-ook-geulen-tegen-

woonwagenbewoners.

496

Amnesty International Portugal (Amnistia

Internacional Portugal),

‘2015 Annual Report – Portugal’(Relatório

Annual

2015),

available

at:

http://www.amnistia-internacional.pt/index.php?option

=com_content&view=article&id=2020&Itemid=29.

497

GISTI, End of the transitional period for Romanians and Bulgarians in France: what changes? A briefing note

from Gisti and Romeurope (Fin

de la période transitoire pour les Roumains et les Bulgares en France: quels

changements? Une note d’information Gisti et Romeurope),

30 December 2013, available at :

http://www.gisti.org/spip.php?article3377.

498

Ministry of Home Affairs (Ministère

de l’intérieur),

Circular No I0kk1016329J (Circulaire

No I0kk1016329J)

June

2010,

available

at:

http://www.lecanardsocial.com/upload/

IllustrationsLibres/Circulaire_du_24_juin_2010.pdf.

490

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

authorities adopted a new commitment to equality in 2011

499

. Nevertheless,

entrenched discrimination against Roma creates a situation whereby Roma people

leave of their own accord, due to the difficult living conditions they experience, e.g.

limited social rights, access to health, education or voting rights

500

. Issues of

sanitation and access to housing are particularly problematic

501

2009 and 2010

a series of events raised concern in Europe, as

Roma

were targeted

by the

Italian

and French authorities through evictions and expulsions.

502

The

Commission and Parliament

took a strong stance against Member State actions. As a

result, as mentioned in the box above, national law was amended in

France

to include

procedural guarantees and ensure compliance with the Directive

503

, while the Italian

Courts struck down the government's emergency decrees.

Sweden,

in 2013, the Ombudsman sued a Swedish landlord for terminating a woman’s

rental agreement the day after she had received the keys to the apartment, stating he did

not want her to live there because she was a ‘gypsy’

504

. Similarly, in 2012, the Swedish

Ombudsman sued a landlord for telling one of his tenants that she could no longer stay in

her apartment if she or her visitors continued to wear the clothes they were wearing. In

2009, the Court of Appeal for Western Sweden found against a landlord for refusing to

rent an apartment to a man because he was Roma

505

7.4.2.

Roma inhibited from accessing employment in EU Member States

It has been reported in

BE, FI, IT, LT, LU, LV, PT and the UK

that Roma have been

prevented from

accessing employment

506

. This contravenes the Racial Equality Directive

2000/43/EC, which prohibits discrimination on the basis of race or ethnicity in the context

of employment, but also in accessing education, the welfare system and social security,

and goods and services

507

. For example, the employment rate of Roma and Sinti is around

GISTI, Entry, stay and expulsion.What does the law of 16 June 2011 change (Entrée,

séjour et éloignement.

Ce que change la loi du 16 juin 2011),

available at:

http://www.gisti.org/IMG/pdf/2011-

09_cj_entree_sejour_apres_loi_besson.pdf, p. 50.

500

Commissioner for Human Rights, the Human rights of Roma and the members of the Travelling community,

January

2008,

available

at:

https://www.coe.int/t/commissioner/source/prems/

prems212811_FRA_2612_Roma_and_Travellers_Extraits_A4_web.pdf.

501

Defender of Rights, Description of expulsion from camps for which the circular was not, or was only partially,

respected (Description

des situations d’expulsions de campements pour lesquels la circulaire n’a pas été

respectée

l’a

été

que

partiellement),

available

at:

http://www.defenseurdesdroits.fr/sites/default/files/atoms/files/ddd_r_20130601_evacuation_campement_illici

te_annexes.pdf.

502

European Parliament Resolution of 10 July 2008 on the Census of the Roma on the basis of ethnicity in Italy,

July

2008,

available

at:http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language

=EN&reference=P6-TA-2008-0361; European Parliament

Resolution of 9 September 2010 on the situation of

Roma and on freedom of movement in the European Union, 9 September 2010, available at:

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2010-

0312+0+DOC+XML+V0//EN.

503

GISTI, Entry, stay and expulsion.What does the law of 16 June 2011 change (Entrée,

séjour et éloignement.

Ce que change la loi du 16 juin 2011),

available at:

http://www.gisti.org/IMG/pdf/2011-

09_cj_entree_sejour_apres_loi_besson.pdf.

504

Hyresvärd i Filipstad, ANM 2011/981, Diskrimineringsombudsmannen website, available at:

http://www.do.se/lag-och- ratt/diskrimineringsarenden/hyresvard-filipstad/.

505

Judgment by the Court of Appeal for Western Sweden, Case T-3501-08, judgment delivered 2009-01-15.

506

Your Europe Advice, Quarterly Feedback Reports (April 2012-March 2016).

507

FRA,

‘Handbook

European

non-discrimination

law’,

2011,

available

at:

http://fra.europa.eu/sites/default/files/fra_uploads/1510-FRA-CASE-LAW-HANDBOOK_EN.pdf,

p.14.

499

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__________________________________________________________________________________________

34% in Italy. Moreover, legally employed Roma and Sinti women represent only 11.5% of

the entire sample, as opposed to 34.4% of Italian women

508

Relevant examples: Roma inhibited from accessing employment



A recent survey has shown that low education level, illiteracy and negative

stereotypes dramatically restrict Roma from accessing employment and

perpetuating their long-term social isolation in

Latvia

509

Luxembourg,

Roma people have been victims of the extended transitional

measures (abolished in January 2014), causing their incapacity to provide

‘sufficient resources’ for their stay

510

France,

the Defender of Rights received complaints from human rights

associations, including Roma rights groups, concerning discrimination against

Roma regarding access to employment

511

In the

UK,

it has been reported that Roma have limited access to mainstream

employment with decent wages:



‘Roma workers are often employed as casual day labourers in the

and opportunities

for this type of work have decreased during the economic recession. While there have

been instances of severe exploitation, sometimes amounting to forced labour, the social

and economic marginalisation of the community and their limited trust in authority has

made it difficult to begin to address this exploitation. Moreover, the situation of the Roma

has been worsened by cuts in employment-related benefits introduced by the coalition

government and they are also frequently denied welfare benefits through misapplication

of the habitual residence test by staff of the Department of Work and Pensions.

Furthermore, it was highlighted that there is a lack of any national strategy to promote

the social inclusion of the Roma population

512

’

7.4.3.

Discriminatory barriers for Roma in accessing education, housing, social

assistance and services

Roma have also been inhibited from

accessing education

in EU Member States,

breaching the Charter, the TFEU and the Racial Equality Directive. For example, in

Belgium,

Unia reports that some head teachers are refusing to enrol Roma children in

school

513

. The 2015 Amnesty International Annual Report for

Portugal

also mentions

segregation of Roma children in schools

514

European Parliament, ‘Evaluation of the EU Framework for National Roma Integration Strategies’, at p. 31-

32.

509

Market and Social Research Centre, “Latvijas

Fakti”

(2015).

Roma in Latvia (Romi

Latvijā).

44 p. The research

was conducted within the project “Different people. Diverse experience. One Latvia II” Nr.

JUST/2013/PROG/AG/4978/AD, available at:

http://issuu.com/sif2015/docs/romi_pdf_publicesanai.

510

Roms en Europe au 21e siècle : violences, exclusions, précarité : Rapport de l’Association européenne

pour la

Défense des droits de l’Homme, coordonné par Philippe Goossens et Erell Chardon, sur base des recherches

initiées par Sabrinna Sanogo, Association Européenne pour la Défense des Droits de l’Homme, Brussels, October

2012,

available

http://www.aedh.eu/plugins/fckeditor/userfiles/file/Discriminations

%20et%20droits%20des%20minorit%C3%A9s/RAPPORT%20Roms%20AEDH.pdf, p.13-14.

511

Defender of Rights, Description of expulsion of camps for which the circular was not / partially respected

(Description

des situations d’expulsions de campements pour lesquels la circulaire n’a pas été respectée

ou ne

l’a

été

que

partiellement),

available

at:

http://www.defenseurdesdroits.fr/sites/default/

files/atoms/files/ddd_r_20130601_evacuation_campement_illicite_annexes.pdf.

512

Groenendijk, K., et al., European Report on the Free Movement of Workers in Europe in 2012-2013, p.33.

513

Unia, ‘2014

Annual report: A turning point for the Centre’

(2015),

p. 52;

Unia, ‘2013 Annual Report on

Discrimination/Diversity’ (2014), p. 36 and 83.

514

Amnesty International Portugal (Amnistia

Internacional Portugal),

2015 Annual Report

–

Portugal (Relatório

Annual

2015),

available

at:

http://www.amnistia-internacional.pt/

index.php?option=com_content&view=article&id=2020&Itemid=29.

508

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

It has been reported that Roma are inhibited from accessing

financial services

and

accommodation.

This breaches the Charter, the TFEU and the Racial Equality Directive.

For example, in 2011, the state-funded Finnish Broadcasting Company (YLE) reported that

Eastern European Roma employed in

Finland

had been facing surprising discrimination in

access to financial services and municipally owned accommodation, with a number of

applications rejected on the basis of ethnic origin

515

Roma have also experienced barriers in

accessing social protection, e.g. in Ireland,

where counter staff and deciding officers are reluctant to grant social welfare payments to

Roma, subjecting them to verbal abuse and discriminatory behaviour. For example, one

Roma man reported that he was told by front-line staff to go to his own country to apply

for his social welfare payments

516

‘Romanian Roma are wanted for jobs – not for begging’ (‘Romanian

romanit halutaan töihin

–

ei kerjäämään’),

YLE

Uutiset,

March

2011,

available

at:

http://yle.fi/uutiset/romanian_romanit_

halutaan_toihin__ei_kerjaamaan/5090598.

516

In from the margins - Roma in Ireland: Addressing the Structural Dimension of the Roma Community in

Ireland’, 30 May 2013, available at:

http://www.nascireland.org/wp-content/uploads/2013/05/NASC-ROMA-

REPORT.pdf, p 50.

515

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__________________________________________________________________________________________

COMPARATIVE OVERVIEW OF MEMBER

MEASURES TO COUNTER ABUSE OF RIGHTS

KEY FINDINGS



STATES

All Member States have adopted measures to tackle

marriages of convenience,

and most of them have also adopted measures to address different kinds of

fraud

aimed at obtaining free movement rights. The most common measure adopted in

the Member States tackles the issue of false information or forged documents.

Abusive adoption is specifically addressed in certain Member States (e.g.

BE, IT

and

SE). Belgium, Spain

and

Luxembourg

have provisions sanctioning false

declarations of paternity. Other relevant provisions include measures to tackle

abuses in claiming ‘dependence’, bogus self-employed

persons and false

declarations regarding the age of a child.

These measures provide for the refusal, termination or withdrawal of any right

conferred by the Directive. In addition, abuse and fraud could lead to

fines

and

imprisonment

in a substantial number of Member States.

Data

on the implementation of measures to combat abuses and frauds are scarce.

In certain Member States, these measures have a

negative or disproportionate

impact

on the right to free movement. Serious concerns relate to an inversion of

the

burden of proof,

when EU citizens and their spouses are required to

demonstrate that their marriage is not a marriage of convenience. Under Directive

2004/38, the burden of proof lies with the national authorities. Moreover, certain

Member States

systematically investigate

marriages between EU citizens and

third country nationals.



8.1.

Overview of the Directive’s requirements on measures to

counter abuse of rights

Marriages of convenience occur across the EU, though to a significantly varying degree

across Member States. The involvement of organised crime in the organisation of

marriages of convenience is a worrying factor

517

In order to combat abuse of free movement rights,

Article 35

of Directive 2004/38 allows

Member States to adopt measures to refuse, terminate or withdraw the right of entry and

residence in the case of abuse of rights or fraud, such as marriages of convenience

518

According to the Directive, such measures must be proportionate and subject to procedural

safeguards.

European Commission, ‘Communication from the Commission to the European Parliament

and the Council,

the European Economic and Social Committee and the Committee of the Regions - Free movement of EU citizens

and their families: Five actions to make a difference’, 25.11.2013, COM (2013) 837 final, available at:

http://eur-

lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52013DC0837&from=EN.

518

Recital 28 refers to marriages of convenience as marriages contracted for the sole purpose of enjoying the

right of free movement and residence under the Directive.

517

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In its 2009

Guidelines

519

, the European Commission specified the scope of these

measures, taking into account CJEU case law. The Guidelines provide the definitions

described below.

Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

Definitions



Fraud:

‘deliberate deception or contrivance made to obtain the right of free

movement and residence under the Directive’.

Abuse:

‘an artificial conduct entered into solely with the purpose of obtaining the

right of free movement and residence under EU law which, albeit formally observing

the conditions laid down by EU rules, does not comply with the purpose of those

rules’

520

When it comes to

marriages of convenience,

the issue relates to the intention of the

marriage, as represented by mala fide of the spouses prior to, and at the moment they

enter into, the marriage. Marriages which began with genuine intentions but which later

became marriages of form, or marriages in name only, are not considered marriages of

convenience.

According to the 2009 Guidelines, the rules governing marriages of convenience can be

extended to other analogous abusive relationships, such as (registered)

partnership of

convenience, fake adoption

false declarations of parenthood.

In this latter case,

an EU citizen declares him/herself the parent of a third country child in order to confer

nationality and a right of residence on the child and its other parent, while knowing that

he/she is not the biological parent and is not willing to assume parental responsibilities.

Abuse

covers situations whereby EU citizens move to another Member State with the sole

purpose of evading the national law prohibiting family reunification by invoking their rights

under EU law. The so-called

‘Belgium

route’

could be regarded as an example of such

abuse. Here, cases have been reported of Dutch nationals whose partners’ visa/residence

applications have been denied in the Netherlands relocating to Belgium in order for their

partner to apply for visa/residence with the Belgian authorities

521

. However, national

authorities must be cautious when assessing this sort of abuse. Firstly, there cannot be a

systematic presumption of abuse. Secondly, the CJEU has established that making rational

immigration decisions does not amount to an abuse per se

522

Another recurring abuse relates to

fraud and errors in the field of social security

coordination.

Social security fraud can be any act, or omission to act, in order to obtain

or receive social security benefits, or to avoid obligations to pay social security

contributions, contrary to the law of a Member State

523

European Commission, ‘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’, 2.7.2009,

COM(2009) 313 final, available at:

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:52009DC0313.

520

Case C-110/99

Emsland-Stärke

[2000] ECLI:EU:C:2000:695, at para 52 et seq.; Case C-212/97

Centros

[1999] ECLI:EU:C:1999:126, at para 25.

521

Your Europe Advice, Quarterly Feedback Report No. 14, Quarter 4/2015 (October-December), p. 25.

522

Case C-109/01

Akrich

[2003] ECLI:EU:C:2003:491 at para 55-56.

523

Part A, Section 2(a) of the Council Resolution of 22 April 1999, OJ C 125, 6.5.1999, p. 1 as referred to in

European Commission, ‘Communication from the Commission to the European Parliament and the Council, the

European Economic and Social Committee and the Committee of the Regions - Free movement of EU citizens

and their families: Five actions to make a difference’, 25.11.2013, COM (2013) 837 final, available at:

http://eur-

lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52013DC0837&from=EN, at p.9.

519

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__________________________________________________________________________________________

All of these abuses should be assessed in line with the

framework of EU law,

and not

within national migration laws. Member States should not adopt measures to fight against

marriages of convenience that could

deter

EU citizens and their family members from

exercising their right to free movement or unduly encroach on their legitimate rights. Nor

should they undermine the effectiveness of EU law, or discriminate on grounds of

nationality. The

burden of proof

lies with the national authorities, though they may

not

take measures based on a

general presumption of abuse,

which would result in

systematic checks.

With regard to the burden of proof, TCN spouses must provide the

necessary documents required by the Directive when applying for an entry visa or a

residence card. The list of supporting documents in the Directive is exhaustive

524

and does

not include any requirement for EU citizens and their TCN spouses to present proof that

their marriage is genuine. Consequently, TCN spouses are required only to present proof

of a current, valid marriage. If the national authorities have sufficiently well-founded

suspicions about the genuine nature of a particular marriage, they can request further

relevant documents or evidence from the couple. In these circumstances, both spouses

are obliged to cooperate with the authorities.

The risk of falsely identifying a genuine couple is reduced by the proposed ‘double-lock

safeguard mechanism’

according to which national authorities should first assess if there

are ‘hints that there is no abuse’. Only if the examination of these ‘hints’ does not confirm

the genuine nature of the marriage should the authorities proceed to verify the existence

of the hints of abuse

525

Hints there is no abuse

The Commission

526

provided a set of indicative criteria, suggesting that abuse is

unlikely when:



The third country spouse would have no problem obtaining a right of residence in

his/her own capacity or has already lawfully resided in the EU citizen’s Member

State beforehand.

The couple has been in a relationship for a long time.

The couple has had a common domicile/household for a long time.

The couple have already entered a serious long-term legal/financial commitment

with shared responsibilities (mortgage to buy a home, etc.).

The marriage has lasted for a long time.



See, for example, Article 10(2) of Directive 2004/38 or Recital 14 which stipulates that "[t]he supporting

documents required by the competent authorities

for the issuing of […] a residence card should be

comprehensively specified in order to avoid divergent administrative practices or interpretations constituting an

undue obstacle to the exercise of the right of residence by Union citizens and their family members."

525

European Commission, ‘Commission Staff Working Document, Handbook on addressing the issue of alleged

marriages of convenience between EU citizens and non-EU nationals in the context of EU law on free movement

citizens’,

SWD(2014)

284

final,

26.9.2014,

available

at:

http://ec.europa.eu/justice/citizen/files/swd_2014_284_en.pdf,

p.34.

526

Ibid. at p. 35.

524

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

Hints of abuse

National authorities may use the following set of criteria indicating the existence of an

abuse to trigger an investigation:



The couple have never met before their marriage.

The couple are inconsistent about their respective personal details, about the

circumstances of their first meeting, or about other important personal information

concerning their relationship.

The couple do not share a common language.

Evidence of a sum of money or gifts handed over in order for the marriage to be

undertaken (with the exception of money or gifts given in the form of a dowry in

cultures where this is common practice).

The past history of one or both spouses contains evidence of previous marriages of

convenience or other forms of abuse and fraud intended to acquire a right of

residence.

Development of family life only after an expulsion order was adopted.

The couple divorces shortly after the TCN in question has acquired the right of

residence.



As a

consequence

of abuse or fraud, Member States may

refuse to confer rights

free movement under EU law (e.g. to issue an entry visa or a residence card) and to

terminate or withdraw

free movement rights (e.g. the decision to terminate validity of

a residence card or to expel the person concerned who acquired his/her rights by abuse

or fraud). The Directive does not specify any sanctions which may be taken by Member

States to combat abuse or fraud. The Guidelines clarify that Member States may lay down

sanctions

under civil (e.g. invalidating the right of residence conferred by a proven

marriage of convenience), administrative or criminal law (fine or imprisonment), provided

these sanctions are effective, non-discriminatory and proportionate.

8.2.

8.2.1.

Comparative overview of national measures

Marriages of convenience

Each Member State has measures to tackle marriages of convenience. Most have adopted

specific provisions for this abuse, while others tackle these issues through general

provisions against abuse in law. For instance, the

defines marriages of convenience as

an ‘abuse of the right to reside’

527

and it imposes an obligation on registrars to inform the

Home Office where they suspect a marriage of convenience will take place

528

. In addition,

Home Office Guidance requires caseworkers to decide, systematically, whether marriages

or civil partnerships might have been contracted for convenience before issuing entry or

residence documentation

529

. The Guidance makes it clear that an applicant can prove a

family relationship through a valid marriage certificate and that, where a marriage of

convenience is suspected, the burden of proof is subsequently with the Secretary of State.

527

Section 21B (1)(c) of the Immigration (European Economic Area) Regulations 2006, SI 2006/1003.

Section 24 of the Immigration and Asylum Act 1999.

529

Home Office Guidance, ‘Direct Family Members of European Economic Area (EEA) nationals’, valid from 29

September 2015,, p. 14.

528

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__________________________________________________________________________________________

France

imposes a

punishment of imprisonment and/or a fine for the offence of ‘contracting

a marriage for the sole purpose of obtaining, or causing to obtain, a residence permit or a

protection against removal, or for the sole purpose of acquiring, or causing to acquire,

French

nationality’

530

. More recently, a new offence was established for ‘grey marriages’

(mariages

gris),

i.e. a marriage contracted between a French national and a foreigner,

where the French national has acted in good faith but the foreigner held the sole aim of

obtaining a residence permit or French nationality

531

. French law also provides for

supplementary penalties, such as a residence ban and a ban on the exercise of any social

activity, where such an offence has been committed

532

Other Member States, such as Slovakia and Germany, curb this type of abuse through a

number of legislative provisions not specifically addressing marriages of convenience. In

Slovakia,

the only provision that can be used by the authorities to tackle marriages of

convenience states that the police must evaluate all documents submitted, including those

confirming the existence of a family relationship with the EU citizen. If the documents

submitted do not sufficiently demonstrate the facts, the police will not issue a residence

document

533

Germany,

marriage of convenience falls within the broader offence of fraud related to

free movement rights

534

. This offence allows the national authorities to declare the right to

free movement non-existent if the conditions to be fulfilled in order to acquire a right to

residence have been fabricated through false information or falsified documents

535

, and if

a family member of an EU citizen does not accompany that citizen for the purposes of

family reunification

536

Some Member States specifically tackle

abusive cohabitation or partnership.

In 2013

and 2014,

Belgium

introduced specific provisions on abusive cohabitation

537

. The

measures include administrative, judicial and legal provisions to address legal cohabitation

of convenience in the same manner as marriage of convenience, the establishment of a

database and systematic information-sharing between the relevant services, and the

intensification of controls within the first three years of the granting of a residence

permit

538

Article L623-1 of the Code

on the entry and stay of foreigners and the right to asylum (‘CESEDA’); Ordinance

n. 2004-1248 of 24 November 2004 (Code

de l’Entrée et du Séjour des Etrangers et du Droit d’Asile),

Official

Journaln.0274 of 25 November 2004, p. 19924.

531

Law No. 2006-911 of 24 July 2006 relating to immigration, integration and nationality (Loi

n° 2011-672 du 16

juin

2011 relative

l'immigration,

l'intégration

nationalité),

available

at:

https://www.legifrance.gouv.fr/affichTexte.do?categorieLien=id&cidTexte=JORFTEXT000024191380.

532

Article L 623-2 of CESEDA.

530

Škamla, M. and Varga, P,‘Report on the Free Movement of Workers in Slovakia in 2012-2013’, July 2013, p.9.

Draft law amending the FreizügG/EU and other laws on residence, BT-Drs. 17/10746, p. 9.

535

Section 2(7) sentence 1 of the Law on the general freedom of movement of EU citizens of 30 July 2004

(‘FreizügG/EU’) (Gesetz

über die allgemeine Freizügigkeit von Unionsbürgern),

available at:

http://www.gesetze-

im-internet.de/bundesrecht/freiz_gg_eu_2004/gesamt.pdf.

536

Section 2(7) sentence 2 FreizügG/EU.

537

Article 1476bis of the Belgian Civil Code of 21 March 1804 (Code

Civil),

available at:

http://www.droitbelge.be/codes.asp#civ;

Crosspoint Migration-Integration, What is a legal cohabitation of

convenience’

(Wat

een

schijnwettelijke

samenwoning?),

available

at:

http://www.kruispuntmi.be/thema/gezinshereniging/je-wil-wettelijk-samenwonen-in-belgie/schijnwettelijke-

samenwoning/wat-is-een-schijnwettelijke-samenwoning.

538

State Secretary for Asylum and Migration Policy, ‘General policy note on Asylum and Migration’ (Algemene

beleidsnota Asiel en Migratie),

2012, p. 11; EMN, ‘Misuse of the Right to Family Reunification’, 2012, available

at:

http://ec.europa.eu/dgs/home-affairs/what-we-do/networks/european_migration_network/reports/docs/

emn-studies/family-reunification/0a_emn_misuse_family_reunification_study_final_june_2012_en.pdf,

p. 12;

Belgian NCP EMN, ‘Focus-study:

Misuse of the right to family reunification: marriages of convenience and false

declarations of parenthood’ (Focus-studie:

Misbruiken op het vlak van het recht op gezinshereniging :

Schijnhuwelijken

valse

ouderschapsverklaringen),

2012,

available

at:

533

534

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8.2.2.

Fraud

Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

Most Member States have adopted specific measures to address different types of fraud

in obtaining free movement rights. The most widespread measure tackles the issue of

false information

forged documents.

Italy,

for instance, Legislative Decree

286/1998 specifically criminalises counterfeiting or altering documents in order to illegally

obtain a visa or a residence permit

539

. If such fraud is found, the residence permit may be

withdrawn.

Abusive adoption

is specifically addressed in certain Member States, such as Belgium,

Italy and Sweden. In

Italy,

the legislation establishes the refusal of a request for

reunification when it is determined that an adoption was made for the sole purpose of

enabling the person to enter and reside in the state

540

. Under Swedish law, if an adoption

has taken place solely with a view to obtaining the right to stay, the partner or adopted

person does not have a right to stay in

Sweden

as a family member of an EEA citizen

541

Belgium, Spain

and

Luxembourg

have provisions sanctioning

false declarations of

paternity.

Under Spanish law

542

, the declaration of paternity creates a contestable

presumption of paternity, with the Civil Registry entitled to investigate the authenticity of

the declaration

543

. These investigations include personal interviews to reveal inconsistencies,

or requests for documents to detect possible fraud. If a falsification is found, registration

can be refused. Finally, the Spanish authorities may ask for a DNA test in judicial procedures.

A false declaration of paternity is punishable with administrative and criminal sanctions. In

Luxembourg,

a false declaration of parenthood is considered a criminal offence

544

. In

cases where the Court finds that there is doubt about the parenthood, the applicant is

asked to submit to a voluntary DNA test. If this is refused, the family reunification request

may be rejected

545

Other relevant provisions include measures to tackle

abuses in claiming ‘dependence’

(Spain),

bogus self-employed persons

(Belgium), and

false declarations regarding

the age of a child

(Italy).

http://www.emnbelgium.be/sites/default/files/publications/0_emn_focussed_study_misuse_family_reunificatio

n_bereport_nl_17july2012.pdf,

p. 5.

539

Article 5, para. 8bis, Legislative Decree 286/1998 ‘Text regulating migration and rules concerning migrants’

status’ as amended by Law no. 94 of 2009.

540

Article 29, para 9, of the Consolidated text of provisions governing immigration and the status of aliens,

Legislative Decree 286/1998 (‘Testo

unico delle disposizioni concernenti la disciplina dell'immigrazione e norme

sulla condizione dello straniero’),

Official Journal n.191 of 18 August 1998.

541

Chapter 3a Section 4 para 3 of the Aliens Act

Law 2005:716 (‘Utlänningslag’),

available at:

http://www.riksdagen.se/sv/dokument-lagar/dokument/svensk-forfattningssamling/utlanningslag-

2005716_sfs-2005-716.

542

Article 113 of the Spanish Civil Code (Real

Decreto de 24 de julio de 1889 por el que se publica el Código

Civil),

Spanish Official Journal, n. 206 of July 25, 1889.

543

General Directorate of Registries and Notaries Instruction of 31 January 2006 (Instrucción

de 31 de enero de

la Dirección General de Registros y Notarías).

544

Bill

No.

5908/00

July

2008,

available

at:

http://chd.lu/wps/PA_1_084AIVIMRA06I4327I10000000/FTSByteServingServletImpl/?path=/export/exped/sex

pdata/ Mag/034/726/073235.pdf.

545

European Commission, Marriages of convenience and false declarations of parenthood: misuse of the right to

family reunification, Luxembourg, June 2012, available at:

http://ec.europa.eu/dgs/home-affairs/what-we-

do/networks/european_migration_network/reports/docs/emn-studies/family-

reunification/0a_emn_misuse_family_reunification_study_publication_bf_en.pdf,

p. 38.

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8.2.3.

Sanctions

In addition to the refusal, termination or withdrawal of any right conferred by the Directive,

abuse and fraud can lead to fines and imprisonment in a substantial number of Member

States.

Belgium,

persons who attempt to enter into a marriage of convenience can be punished

with imprisonment between one month and three years, and with a fine between EUR 50

and EUR 150

546

. The same punishments apply to attempts to enter into a legal cohabitation

of convenience

547

Spanish

law penalises marriages of convenience as administrative infringements

punishable by a fine ranging from EUR 501 to 10,000. In extreme circumstances,

marriages of convenience are also punished as criminal offences. Those extreme

circumstances relate to situations where the marriage of convenience is linked to another

criminal offence, such as aiding and abetting illegal immigration

548

or document

falsification

549

France

imposes a punishment of five years’ imprisonment and EUR 15,000 fine

for

marriages of convenience

550

. The same penalties are applicable where a person organises,

or attempts to organise, a marriage or adoption of a child for the same purposes

551

8.2.4.

Impact of these measures on the right to free movement and residence

Cases where measures against abuse or fraud have a

negative or disproportionate

impact

on the right of free movement have been reported in the

UK, Italy, Belgium and

Germany.

In the

UK,

EU citizens and their TCN partners

must demonstrate

if required that their

marriage is not one of convenience, rather than being acknowledged as the automatic

recipients of residence rights as the spouses and civil partners of Union citizens. As stated,

this approach runs contrary to the interpretation given by the Commission, which places

the burden of proof on national authorities and states that checks should not be

systematic. The UK requires caseworkers to decide, systematically, whether marriages or

civil partnerships might be undertaken for convenience before issuing entry or residence

documentation

552

. In the case of

Papajorgji,

an entry clearance officer initially refused to

issue residence documents to the Albanian wife of a Greek national on the basis that

further evidence had not been submitted, beyond the 115 written questions that they had

answered and the numerous documents that they had already supplied. The Upper

Tribunal made clear that the burden of proof was on the Home Office to demonstrate that

their marriage of 14 years, which had produced two children, was not genuine

553

546

Article 79bis para 1 and 2 of the Act of 15 December 1980 on access to the territory, residence, settlement

and removal of foreigners (‘Loi

sur l'accès au territoire, le

séjour, l'établissement et l'éloignement des étrangers’).

547

Article 79ter of the Act of 15 December 1980 on access to the territory, residence, settlement and removal of

foreigners.

548

Article 318bis of the Spanish Criminal Code.

549

Article 392 of the Spanish Criminal Code.

550

Article L623-1 of the CESEDA.

551

Article L623-1 of the CESEDA.

552

Home Office Guidance, ‘Direct family members’, p. 14.

553

Papajorgji

[2012] UKUT 00038 (IAC); See also

ZH (Afghanistan) v Secretary of State for the Home

Department

[2009] EWCA Civ 1060.

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

Italy,

too, a case was reported of an EU citizen required to prove that his/her marriage

was genuine

554

, despite the fact that the burden of proof should normally fall on the

national authorities. A similar issue is reported in

Belgium,

where, in 2013, the authorities

were reported to regularly perform checks on evidence provided by applicants that they

are not engaged in a marriage of convenience

555

. TCNs with illegal/precarious residence

status are considered

a priori

suspects of marriages of convenience

556

Germany,

the possibility of issuing

re-entry bans

has been introduced for cases where

false information or falsified documents have been used, or where no family reunification

was intended

557

. Controversy has arisen over the compliance of this measure with Article

15(3) of Directive 2004/38/EC

558

, which provides that the host Member State may not

impose a ban on entry in the context of an expulsion decision on grounds other than public

policy, public security or public health

559

. Other concerns relate to an alleged lack of

procedural safeguards in the context of the measures listed under Article 35 of the

Directive

560

. The European Commission intends to examine this amendment to German

law

561

Poland,

the law makes no distinction between marriages of convenience and marriages

contracted in good faith but which broke down after some years, leading the spouses to

live

de facto

separately. Non-nationals in these situations are often

forced to hide the

fact of their separation,

as their stay in Poland legally depends on their remaining

married.

Another example of disproportionate effect relates to measures aimed at preventing fraud.

In the

UK,

all claims by EU citizens for social welfare trigger a

compliance check.

This

policy is arguably in breach of Article 14(2) of Directive 2004/38, which stipulates that

verification checks relating to an EU citizen’s continued right to reside in the host State

will not be carried out systematically

562

8.2.5.

Implementation of these measures in practice

In general, little

data

on the scope of abuse and fraud and on the implementation of

measures to combat them are available, which makes it almost impossible to evaluate

whether these are related to free movement

–

as some Member States alleged

–

and

Your Europe Advice, Quarterly Feedback Report No. 2, Quarter 3/2012 (July-September), p.16.

Your Europe Advice, Quarterly Feedback Report No. 6, Quarter 4/2013 (October-December), p. 33.

556

EMN, ‘Ad-hoc query on requirements of marriage and suspected numbers of marriages of convenience’ (2013),

available

at:

http://www.emnbelgium.be/sites/default/files/publications/uk_emn_ahq_requirements_for_

marriage_and_suspected_marriages_of_convenience_wider_3_0.pdf,

p. 5; Immigration Office, ‘Activity report

2012’ (Activiteitenrapport

2012),

2013, available at:

https://dofi.ibz.be/sites/dvzoe/NL/Documents/

2012_NL.pdf, pp. 206-214.

557

Section 7(2) sentence 2 ff. FreizügG/EU.

558

Agreeing: Thym, D., Statement on draft law amending FreizügG/EU and other provisions of 22 September

2014, BT-Ausschussdrucksache 18(4)164 F, p. 9; disagreeing and also referring to Article 20 of the TFEU: Welte,

H.-P.,

‘Rechtsverlust-

oder Nichtbestehensfeststellung

nach erfolgloser Arbeitssuche’ ZAR 2014, 190, 193;

further opinions from Dienelt, K., in Bergmann, J., Dienelt, K. (eds)

Ausländerrecht

(11th edition 2016) § 7

FreizügG/EU para. 41 ff.

559

Thym, D., Statement on draft law amending FreizügG/EU and other provisions of 22 September 2014, BT-

Ausschussdrucksache 18(4)164 F, p. 9.

560

Dienelt, K., in Bergmann, J.,Dienelt, K. (eds)

Ausländerrecht

(11th edition 2016) § 7 FreizügG/EU para. 41

ff.

561

Fóti, K., in Eurofund (ed)

Social dimension of intra-EU mobility: Impact on public services

(2015) 34, 5 March

2016,

available

at:

http://www.eurofound.europa.eu/sites/default/files/ef_publication/

field_ef_document/ef1546en_3.pdf.

562

O’Brien, C., ‘The Pillory, the Precipice and the Slippery Slope: the profound effects of the UK’s legal reform

programme targeting EU migrants’ (2015) 37(1) JSWFL, p. 111-136,

117.

555

554

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whether the measures taken by Member States are effective.

Belgium

stands out as an

exception in this regard, as the Belgian Immigration Office provides regular data on these

issues, which do not distinguish between host EU citizens and their TCN family members

and others. The Immigration Office reports that, in 2013, 131 residence permits were

revoked after annulment of marriage by the courts on the grounds that the persons had

entered into a marriage of convenience, compared to 118 in 2012

563

. In the same year,

overall 7,278 marriages were annulled, considerably less than the year before (9,064

annulments) and the steepest decline in 10 years

564

. According to the State Secretary for

Asylum and Migration Policy, this indicates that the measures introduced in 2013 are

effective

565

To aid effective implementation, an ambitious project, HESTIA

566

, is being funded by the

European Commission under the ‘Prevention of and Fight against Crime Programme’ to

reduce the number of marriages of convenience. Starting in 2015, the project has a

duration of two years and is being implemented in six Member States (EE,

FI, IE, LT,

LV, SK).

In addition, in 2015 the

Irish

Garda National Immigration Bureau set up

‘Operation Vantage’, to investigate

illegal immigration, with a particular focus on marriages

of convenience as defined under the Civil Registration Act 2014

567

. Sixteen people were

arrested as a result of marriages of convenience, nine of whom were subsequently

deported. The Office of the Registrar General now has the power to investigate a couple

prior to agreeing to a marriage.

Immigration Office, ‘2013 Activity report’ (Activiteitenrapport

2013),

2014, available at:

https://dofi.ibz.be/sites/dvzoe/NL/Documents/2013_NL.pdf, p. 108-109.

564

Standaard, ‘Number of marriages of convenience declines’ (Aantal

schijnhuwelijken valt terug),

5 August

2014, available at:

http://www.standaard.be/cnt/dmf20140805_01204880;

Knack, ‘Fewer marriages

convenience

annulled’

(Minder

schijnhuwelijken

ontbonden),

August

2014,

available

at:

http://www.knack.be/nieuws/minder-schijnhuwelijken-ontbonden/article-normal-269297.html.

565

Ibid.

566

Project ‘Preventing human trafficking and sham marriages: a multidisciplinary solution’ (HESTIA).

567

Civil

Registration

(Amendment)

Act

2014,

S.I.

No.

2014,

available

at:

http://www.irishstatutebook.ie/eli/2014/act/34/enacted/en/pdf.

563

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

OVERVIEW OF THE EXTENT OF THE REFUSAL OF ENTRY

AND RESIDENCE EXPULSIONS IN MEMBER STATES

KEY FINDINGS



Data

concerning refusal of entry, refusal of residence rights and expulsions are

rarely publicly available, if collected at all in the Member States. Moreover, national

authorities are often unwilling to provide this sort of information. The same applies

to data on the main reasons invoked by Member States to justify these decisions.

Refusals of residence and expulsions on the basis of a

lack of sufficient economic

resources

are a recurrent issue in certain Member States. In some cases, the

concerned Member State seems not to take into account all the relevant

considerations to establish whether a person has become an unreasonable burden

on the social assistance system. This might entail a violation of Directive 2004/38.

A considerable number of Member States misapply the possible restriction on free

movement based on

public policy and public security.

In particular, certain

Member States expel EU citizens and their family members on the basis of criminal

convictions without taking into due account all the relevant circumstances of the

case.

Not all Member States respect the

increased protection

established by the

Directive for EU citizens and family members who have resided in the host member

State for more than five or ten years.

In many Member States the grounds for refusals of entry, residence and expulsion

are not sufficiently determined by legal provisions and administrative guidelines.

This leaves the national authorities with excessive discretion and leads to

legal

uncertainty

for EU citizens and their family members.

Certain issues exist regarding the

safeguards

in place against refusals of entry,

residence and expulsions.



9.1.

The Directive

Member States are restricted in

refusing

EU citizens and their family members

entry

their territory. Entry can be refused only to EU citizens without an identity card or passport

and to third country family members without an entry visa. Member States must, before

refusing entry, give such persons every reasonable opportunity to obtain the necessary

documents, to present them within a reasonable period of time, or to corroborate or prove

by other means that they are covered by the right of free movement and residence

568

Similarly, the

right of residence

for

up to three months

can be refused only when the

EU citizen is not in possession of a

valid identity card or passport

and where the third

country family member is not in possession of a passport

569

. However, this right of

residence can be withdrawn where the EU citizen and/or the third country family member

568

569

Article 5 of Directive 2004/38/EC.

Article 6 of Directive 2004/38/EC.

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become an unreasonable burden on the social assistance system of the host Member

State

570

Member States can refuse the right of residence for

more than three months

to students

and economically inactive EU citizens who do not have

sufficient resources

to prevent

themselves and their family members from becoming a burden on the social assistance

system of the host Member State during their period of residence, and who do not have

comprehensive sickness insurance cover

571

. As long as the beneficiaries of the right

of residence do not become an

unreasonable burden on the social assistance system

of the host Member State, they may not be expelled

572

In the case of EU citizens and their family members who have resided legally for a

continuous period of five years

in the host Member State, national authorities cannot

refuse or withdraw residence rights on the basis of the conditions described above

573

Article 27 of Directive 2004/38, Member States may restrict the freedom of movement

and residence of Union citizens and their family members, irrespective of nationality, on

grounds of

public policy, public security or public health.

These grounds must

not

invoked to serve

economic ends. Re-entry bans

in the context of an expulsion decision

cannot be based on grounds other than public policy, public security or public health

574

The requirements of public policy and public security remain at the discretion of each

individual Member State in accordance with its needs. However, since freedom of

movement is one of the foundations of the EU, derogations from this principle must be

interpreted strictly

575

EU citizens may be

expelled

only for conduct punishable by the law of the host Member

State, or where other genuine and effective measures intended to combat such conduct

have been taken

576

. Failure to comply with the registration requirement does not, in itself,

constitute a threat to public policy or public security and cannot be the sole justification

for the expulsion of a person

577

Measures taken on the grounds of public policy, public security or public health must be

based exclusively on the

personal conduct

of the individual concerned.

criminal convictions

cannot in themselves constitute grounds for taking such measures.

The personal conduct of the individual concerned must represent a

genuine, present and

sufficiently serious threat

affecting one of the fundamental interests of society.

Restrictive measures cannot be based solely on considerations pertaining to the protection

of public policy or public security advanced by another Member State

578

570

571

Article 14 of Directive 2004/38/EC.

Article 7 of Directive 2004/38/EC.

572

Recital 16 of Directive 2004/38/EC.

573

Article 16 of Directive 2004/38/EC.

574

Article 15(3) of Directive 2004/38/EC.

575

European Commission, ‘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, Brussels 2009,

COM(209)

313

final,

available

at:

http://eur-lex.europa.eu/legal-content/EN/TXT/PDF

/?uri=CELEX:52009DC0313&from=EN.

576

Cases C-115/81

Adoui and Cornuaille

[1982] ECLI:EU:C:1982:183 , at paras 5-9 and Case C-268/99

Jany

[2001] ECLI:EU:C:2001:616 , at para 61.

577

Case C-48/75

Royer

[1976] ECLI:EU:C:1976:57 , at para 51.

578

Cases C-33/07

Jipa

[2008] ECLI:EU:C:2008:396, at para 25 and C-503/03

Commission v Spain

[2006]

ECLI:EU:C:2006:74, at para 62.

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Justifications that are isolated from the particulars of the case, or that rely on

considerations of

general prevention,

are not acceptable

579

. Restrictive measures

following a criminal conviction cannot be automatic and must take into account the

personal conduct of the offender and the threat that it represents for the requirements of

public policy

580

. Grounds extraneous to the personal conduct of an individual cannot be

invoked. Automatic expulsions are not allowed under the Directive

581

Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

Current membership of a criminal

organisation

may be taken into account where the

individual participates in the activities of the organisation and identifies with its aims or

designs

582

. In certain circumstances, persistent

petty crime

may represent a threat to

public policy

583

. When assessing the existence of the threat to public policy in these cases,

the authorities may take into account the nature and frequency of the offences and the

damage or harm caused

584

With regard to the public health ground, the only

diseases

justifying measures restricting

freedom of movement are diseases with epidemic potential and other infectious

diseases

585

. Diseases occurring after a three-month period from the date of arrival cannot

constitute grounds for expulsion from the territory.

The Directive establishes a system by which longer periods of residence in the host

Member State increase the protection against expulsion: EU citizens or their family

members who have the right of

permanent residence

on its territory may not be expelled

except on serious grounds of public policy or public security.

An expulsion decision

against EU citizens who have resided in the host Member State for the

previous 10 years

may only be taken if the decision is based on

imperative grounds of public security.

As a rule, Member States are not obliged to take

time actually spent behind bars

into

account when calculating the duration of residence during which no links with the host

Member State are built

586

Once the authorities have established that the personal conduct of the individual

represents a sufficiently serious threat to warrant a restrictive measure, they must carry

out a

proportionality

assessment to decide whether the person concerned can be denied

entry or removed on grounds of public policy or public security

587

The following factors can be taken into account:



degree of social danger;

579

580

Article 28 of Directive 2004/38/EC; Case 67/74

Bonsignore

[1975] ECR 297.

Cases C-348/96

Calfa

[1999] ECLI:EU:C:1999:6, at paras 17-27 and 67/74

Bonsignore

[1975] ECR 297, at

paras 5-7.

581

Case C-408/03

Commission v Belgium

[2006] ECLI:EU:C:2006:192, at paras 68-72.

582

Case 41/74

van Duyn

[1974] ECLI:EU:C:1974:133 , at para 17 et seq.

583

Case C-349/06

Polat

[2007] ECLI:EU:C:2007:581, at para 35.

584

European Commission, ‘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’, Brussels 2009,

COM(209)

313

final,

available

at:

http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/

?uri=CELEX:52009DC0313&from=EN,at p.12.

585

Article 29 of Directive 2004/38/EC.

586

European Commission, ‘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’,Brussels 2009,

COM(209)

313

final,

available

at:

http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/

?uri=CELEX:52009DC0313&from=EN,

at p. 14.

587

Ibid., p. 13.

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

nature of the offending activities, their frequency, cumulative danger and damage

caused;

time elapsed since acts committed and behaviour of the person concerned;

personal and family situation of the individual.

The persons concerned must have access to judicial and, where appropriate,

administrative redress procedures in the host Member State to appeal against or seek a

review of any decision taken against them on the grounds of public policy, public security

or public health

588

. An expulsion order must be notified in written form, including the

reason for the expulsion and the authority with which an appeal can be lodged

589

. In

general,

automatic expulsions

are not allowed under the Directive

590

9.2.

Overview of existing data

Data concerning refusal of entry, refusal of residence rights and expulsions are rarely

publicly available. While requests for the purposes of this study were sent to all Member

States, only a small number responded with comprehensive information.

Where data were provided, they often did not distinguish between TCN family members

of EU citizens and other TCNs. Where not otherwise specified, figures in the tables refer

to EU citizens, TCN family members of EU citizens and other TCNs. The data, therefore,

were of minimal comparative value for the purposes of this study. In addition, it was not

possible

–

other than in exceptional cases - to obtain information on the main reasons

justifying the refusals and the expulsions.

Only in the

is it possible to state that the number of refusals of entry or residence, as

well as expulsions of EU citizens, is steadily on the rise. National authorities indicate that

this is the result of concerted efforts to refuse entry or to expel EU citizens convicted of a

criminal offence, as well as EU citizens who do not meet the conditions attached to

extended residence rights under Article 7 of the Directive. This indicates the UK’s

willingness to publicly demonstrate that it is addressing popular concerns such as

criminality and immigration, including the immigration of EU citizens. Also in

Belgium,

the number of residence permits of EU citizens and their family members (including TCNs)

that have been revoked has increased steadily in recent years: from 502 in 2010 to 1,542

in 2011, 2,470 in 2013, 2,712 in 2013 and 2,042 in 2014

591

9.2.1.

Refusal of entry

Data on refusal of entry are rarely publicly available and national authorities are often

unwilling to provide this type of information. Most Member States do not collect data

specifically relating to the refusal of entry of EU citizens and their TCN family members.

However, there is some data but it is patchy, covering different categories of persons

588

589

Article 31 of Directive 2004/38/EC.

Article 30 of Directive 2004/38/EC.

590

Case C-408/03

Commission v Belgium

[2006] ECLI:EU:C:2006:192, para 68-72.

591

Immigration Office, ‘2014 Annual Statistical Report’ (Statistich

jaarverslag/rapport annuel statistiques 2014),

2015, p. 25.

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

(including other TCNs and asylum seekers) and only some Member States

592

. The only

Member States where there is relevant data are Belgium and Finland. For the purposes of

family reunification with a Belgian citizen, 3997

593

EU citizens were refused entry into

Belgium

in 2012. Similarly, in 2013, 2615 EU citizens were refused entry while in 2014

the number of EU citizens who were refused entry into Belgium dropped to 342

594

. In

2013, 736 EU citizens were refused entry into

Finland.

The number of EU citizens who

were refused entry into Finland dropped to 644 in 2014. Unfortunately, the data obtained

do not permit any conclusions to be drawn on refusals of entry across Europe.

Data on the main reasons

invoked by Member States for refusing entry are also very

scarce. In

Belgium,

most visa refusals for the TCN family member of an EU citizen are

based on a strict interpretation of the notion of ‘genuine

chance of being engaged’

and

the requirement to have

sufficient resources,

albeit without all revenues taken into

consideration

595

Romania

also often invokes the

lack of sufficient financial resources

to refuse entry, together with the lack of valid travel documents. In

Poland,

national

authorities refuse the right of entry to TCN family members of EU citizens mainly on the

grounds that they are

travelling without the EU citizen

in question. In several cases,

the Polish Border Guards have refused entry to third country family members of EU citizens

who are in possession of a residence card issued by a Member State outside of the

Schengen Area

596

9.2.2.

Refusal of residence rights

As with refusal of entry, data on refusal of residence rights are rarely publicly available

and national authorities are often unwilling to provide them. Moreover, many Member

States do not collect data specifically relating to the refusal of residence of EU citizens and

their TCN family members but only have data on the refusals of residence of all categories

of persons (including other TCNs and asylum seekers)

597

. The data gathered do not permit

any conclusions to be drawn on refusals of the right of residence across Europe.

Refusals of entry to AT: 954 (2011), 1854 (2012), 2046 (2013). Refusals of entry to BG: 135 (2012), 70

(2013), 80 (2014), 57 (2015). Refusals of entry to EE: 52 (2012), 69 (2013), 80 (2014), 46 (2015). Refusals of

entry to RO: 4171 (2014), 4956 (2015). Refusals of entry to SI 1 (2012), 1 (2013), 8 (2014), 1 (2015). Refusals

of entry to UK: 1409 (2014), 1779 (2015). This data does not specifically state which categories of persons it

refers to.

593

Myria, ‘Migration

Annual Report 2013’

(2013),

p. 47.

594

Myria, ‘2015

Migration in numbers and in rights’

(2016),

p. 48.

595

CIRE, ‘Annual

Report 2014 (Rapport

annuel 2014)’,

July 2015, p.16.

596

Information obtained through consultation with stakeholder (Border Guards units, April 2016).

597

Refusal of residence from EE: 0(2012), 0(2013), 2(2014),0(2015). Refusals of residence from LU:34 (Two

refusals of residence plus 32 withdrawals of residence rights) (2012), 36(2013), 156 (126 refusals of residence

plus 30 withdrawals of residence rights) (2014). Refusals of residence from SI: 105 (89 refusals of registration

of residence, 1 refusal of temporary residence permit for EU citizen’s family members, 15

terminations/annulments of registration) (2012), 76 (46 refusals of registration of residence, 2 refusals of

temporary residence

permit for EU citizen’s family members, 28 terminations/annulments of registration) (2013),

56 (31 refusals of registration of residence, 4 refusals of temporary residence permit for EU citizen’s family

members, 21 terminations/annulments of registration) (2014), 62 (44 refusals of registration of residence, 6

refusals of temporary residence permit for EU citizen’s family members, 12 termination/annulation of

registration) (2015). Refusals of residence from the UK: 23,916(9,478 applications for residence rejected, 14,438

applications for residence considered invalid) (2012), 25,022 (20,922 applications for residence rejected, 4,100

applications for residence considered invalid) (2013), 28,106 (21,719 applications for residence rejected, 6,387

applications for residence considered invalid) (2014).

592

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__________________________________________________________________________________________

Table 4: Refusal of residence rights

Member

State

Refusals of

residence

in 2011

EU citizens:

1,624

Refusals of

residence

in 2012

EU citizens:

1,893

citizens

and

TCN

family

members:

2.407

Refusals of

residence

in 2013

EU citizens:

1,730

citizens

and

TCN

family

members:

2.712

citizens

and

TCN

family

members:

2,042

EU citizens:

952

598

TCN family

members:

630

599

EU citizens:

1,659

600

EU citizens:

TCN family

members:

EU citizens:

1,932

601

Refusals of

residence

in 2014

Refusals of

residence

in 2015

EU citizens: 0

TCN

family

members: 1

EU citizens: 0

TCN

family

members: 2

The main reasons invoked by Member States for refusing residence rights are:



Failure to fulfil the residence criteria (DE

602

603

and

604

), in particular

representing an

unreasonable burden

on the social security system (BE

605



Grounds of public policy, security or health (DE

606

and

607



Lack of valid travel documents, or other valid documents confirming identity and

citizenship, or visa (PL

608



Family member does not match the definition of a ‘family member’ (EE

609



The personal data of the person concerned has been entered onto the register of

foreign nationals whose stay is not welcome (PL

610

Data refers to refusals of temporary residence permits.

Ibid.

600

Data refers to withdrawal of residence.

601

Ibid.

602

§ 5(4) FreizügG/EU.

603

Roicka, P., Study on Obstacles to the right of free movement and residence for EU citizens and their families.

Country report for Poland, 2016.

604

Data provided by the Ministry of the Republic of Slovenia upon request.

605

Article 42bis of the Act of 15 December 1980 on access to the territory, residence, settlement and removal of

foreigners; Touquet, H. and Wets, J., ‘Context, motive and opportunities of Central and Eastern European

immigration: exploratory research with a focus on Roma’ (2013), p. 24.

606

§ 6(1) sentence 2 FreizügG/EU and Welte, H.-P.,

‘The travel ban-an

instrument for restricting freedom of

movement’ (‘Das

Einreiseverbot

–

ein Instrument zur Beschränkung der Freizügigkeit‘)

ZAR 2013, 330.

607

Roicka, P., Study on Obstacles to the right of free movement and residence for EU citizens and their families.

Country report for Poland, 2016.

608

Ibid.

609

Police and Border Guard Board Estonia (Politsei-

ja Piirivalveamet),

Email correspondence, 14 March 2016.

610

Roicka, P., Study on Obstacles to the right of free movement and residence for EU citizens and their families.

Country report for Poland, 2016.

599

598

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9.2.3.

Expulsions

Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

The same problems concerning the availability of data for refusals of entry and residence

apply to expulsions. Moreover, many Member States do not collect data specifically

relating to the expulsion of EU citizens and their TCN family members but only have data

on the expulsion of all categories of persons (including other TCNs and asylum seekers)

611

Similarly, therefore, no definitive conclusions can be drawn about the expulsions of EU

citizens and their family members. There is limited information available from

Cyprus,

France and Germany.

208 and 288 EU citizens where expelled from

Cyprus

in 2011 and

2012 respectively. 773 EU citizens were expelled from

Germany

in 2015. In addition,

7,727

612

, 5,300

613

, 4,135

614

and 4,068

615

were expelled from

France

in 2012, 2013, 2014

and 2015 respectively.

The main grounds justifying expulsions of EU citizens and their third country family

members seem to be:



Public order and security reasons (FI

616

617



The committing of crimes (SE

618

619

and

620



Failure to fulfill residence conditions (UK

621



Unreasonable burden on the social assistance system (CY

622

and

623

A particular issue for EU citizens and their family members who, lacking sufficient economic

resources, are not expelled from the host Member State, is the loss of their residence

Expulsions from AT: 1267(2012), 1323(2013). Expulsions from BE: 277 Romanians and 188 Bulgarians

(2012), 303 Romanians and 188 Bulgarians (2013). Expulsions from CZ: 2346(2012), 2193(2013), 2583 (2014).

Expulsions from EE: 55(2012), 77(2013), 50(2014), 24 (2015). Expulsions from FI: 222(2012), 273 (2013), 258

(2014), 279 (2015). Expulsions from HU: 2039 (1,386 ordered by the Hungarian Office of Immigration and

Nationality, 653 ordered by courts) (2012), 1352 (966 ordered by the Hungarian Office of Immigration and

Nationality, 386 ordered by courts) (2013), 1962 (1,454 ordered by the Hungarian Office of Immigration and

Nationality,, 508 ordered by courts) (2014), 2603 (1,550 ordered by the Hungarian Office of Immigration and

Nationality, 1,053 as ordered by courts) (2015). Refusals from SI: 15(2012), 8(2013), 17(2014), 11(2015).

Expulsions from the UK: 3591 (3,128 forced expulsion and 463 voluntary departures) (2014), 4479 (3,765 forced

expulsions and 714 voluntary departures) (2015).

612

2,934 forced removals of EU citizens; 1,810 spontaneous returns of EU citizens; 2,983 assisted returns of EU

nationals.

613

3,382 forced removals of EU citizens; 1,400 spontaneous returns of EU citizens; 518 assisted returns of EU

nationals.

614

3,332 forced removals of EU citizens; 721 spontaneous returns of EU citizens; 82 assisted returns of EU

nationals.

615

3,432 forced removals of EU citizens; 597 spontaneous returns of EU citizens; 39 assisted returns of EU

nationals.

616

European Commission, Report on on the 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, COM(2008)

http://eur-lex.europa.eu/LexUriServ/

LexUriServ.do?uri=

840

final,

2008,

available

at:

COM:2008:0840:FIN:en:PDF,

p 8; Section 168 of the Finnish Foreigners Act (Aliens Act) 301/2004 amended by

Act 360/2007 and further amended by Act 358/2007

Ulkomaalaislaki 301/2004.

617

Section 119(2) of Act No 161/2006 Coll. which amends the Residence Act. No. 326/1999 Coll. about Residence

of Foreigners on the Territory of the Czech Republic (Foreigners Residence Act); CEPS, ‘Implementation of

Directive 2004/38 in the context of EU Enlargement: A proliferation of different forms of citizenship’, April 2009,

p 11; Union citizenship: developments, impact and challenges, The XXVI FIDE Congress in Copenhagen 2014,

Congress Publications Vol. 2, DJØF Publishing, Copenhaguen, 2014, p 443.

618

Eriksson, I. and Pettersson, H., Study on Obstacles to the right of free movement and residence for EU citizens

and their families. Country report for Sweden, 2016.

619

European Commission, Report on on the 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, COM(2008)

840

final,

2008,

available

at:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=

COM:2008:0840:FIN:en:PDF,

p 8.

620

Information obtained through consultation with stakeholder (KOD Lyons Solicitors, March 2016).

621

Amended by the Immigration (European Economic Area) (Amendment) (No.2) Regulations 2013, SI

2013/3032, Sch.1 para.13(b), entering into force 1 January 2014.

622

Your Europe Advice, Quarterly Feedback Report No. 4, Quarter 2/2013 (April-June), p. 23.

623

Union citizenship: developments, impact and challenges, The XXVI FIDE Congress in Copenhagen 2014,

Congress Publications Vol. 2, DJØF Publishing, Copenhaguen, 2014, p. 89-90.

611

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rights, and, therefore, the loss of their entitlement to social benefits. As described in

Section 6.6.1, this leads to a ‘de

facto expulsion’.

In general, the scarcity of data on expulsions makes it difficult to draw conclusions in

respect of this issue.

9.3.

9.3.1.

Main problems identified

Economic grounds

Under Directive 2004/38, EU citizens and their family members cannot be expelled on

economic grounds as long as they do not become an

unreasonable burden on the social

assistance system

of the host Member State. An expulsion measure should not, therefore,

be the automatic consequence of recourse to the social assistance system. The host Member

State should examine whether it is a case of temporary difficulties and consider the duration

of residence, the personal circumstances and the amount of aid granted, in deciding whether

or not the beneficiary has become an unreasonable burden on the social assistance system

and should be expelled

624

Refusal of residence and expulsion

on the basis of a

lack of sufficient economic

resources

are a persistent issue in

BE, CY, FR

and

the UK.

In some cases, the Member

State does not seem to take into account all relevant considerations in establishing whether

or not a person has become an unreasonable burden on the social assistance system. These

practices may, therefore, run counter to the Directive.

Cyprus,

for example, a Greek citizen was ordered to leave the country after residing

there for 17 years, because of his application for an invalidity pension

625

Belgium,

following a 2006 ruling of the CJEU

626

, the legislation was amended to ensure

that the personal situation of applicants

–

including the nature and regularity of their income,

as well as the number of dependant family members

–

be taken into account when

evaluating their sufficient resources

627

. However,

critics have noted that many ‘de facto’

expulsions (as a result of an ‘order to leave the territory’)

because a person has been

deemed an

‘unreasonable

burden to the social security system’

appear to be an almost

systematic result of receiving social assistance and unemployment benefits, without any

such consideration of personal circumstances, e.g. health or family situation

628

. The

Immigration Office is given a significant amount of

discretion in assessing

whether or not

a person is an unreasonable burden, including the means to check whether or not the person

benefits from social assistance

629

. Since 2011, the Ministry for Social Integration sends the

Immigration Office a monthly list with information from the Crossroads Bank for Social

624

625

Recital 16 of Directive 2004/38/EC.

Your Europe Advice, Quarterly Feedback Report No. 4, Quarter 2/2013 (April-June), p. 23.

626

Case C-408/03

Commission v Belgium,

[2006] ECLI:EU:C:2006:192, para 18, 40 and 67-72.

627

Royal Decree of 28 November 2007 amending Royal Decree of 8 October 1981 concering access to the

territory, residence, settlement and removal of foreigners, Official Journal, 14 December 2008; European

Parliament, Comparative study on the application of Directive 2004/38/EC of 29 April 2004 on the Right of

Citizens of the Union and their family members to move and reside freely within the territory of the Member

States,

Brussels,

2009,

410.650,

available

at:

http://www.europarl.europa.eu/

RegData/etudes/etudes/join/2009/410650/IPOL-JURI_ET(2009)410650_EN.pdf,

p. 57 and p.184.

628

INCA CGIL, ‘Sorry,

this access route is closed. Your rights and responsibilities when you work in another

Member State’,

p.18.

629

CIRE,

The right to residence of European citizens in Belgium (Le

droit de séjour des citoyens européens en

Belgique),

p. 8; Judicial Foreigners’ Council

decision of 30 September 2013 No 111.076.

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

Security

630

containing personal data on all EU/EEA citizens and their family members who

have received social allowances for three consecutive months over the past year

631

According to a number of academics and organisations, these

systematic data transfers

violate Directive 2004/38/EC because they result in automatic withdrawals of the right of

residence by the Immigration Office without due consideration of the specific circumstances

of each individual case

632

. As a consequence of a more strict follow-up of cases and increased

information-sharing between the different services over the past few years through the Bank

for Social Security, there has been a considerable increase in the number of EU citizens and

their family members who have had their right to residence revoked on the grounds of

becoming an unreasonable burden on the social assistance system

633

. In 2010, this

happened to 502 persons, increasing to 1,542 in 2011, 2,470 in 2013, 2,712 in 2013 and

2,042 in 2014

634

As discussed in the country report, the

has taken regulatory steps to enforce the

removal of EU citizens who no longer meet the residence conditions of Directive 2004/38,

particularly on economic grounds. For instance, in April 2010, the then-UK Border Agency

introduced a scheme whereby

homeless EU citizens

were required to attend an interview

at a local police station to determine whether they were exercising residence rights under

Directive 2004/38. It was reported that, one month into the project, 200 people had been

targeted by the project, 100 of whom were served removal notices and 13 of whom had

already been deported

635

. A 2013 report by

Inside Housing

indicates that this removal

scheme was revived, on at least one occasion. Accordingly, 63 Romanians were questioned

in London, around 20 of whom were subsequently deported to Romania

636

. The lawfulness

of such deportations has been criticised

637

, as homeless EU citizens not relying on social

welfare arguably reside in the UK as self-sufficient citizens.

In the

Netherlands,

a few cases of expulsion based on economic reasons have also been

registered, with one case reported in

Sweden

638

. There is no clear indication that the

personal situation of the applicants is taken into consideration when determining if they

represent an unreasonable burden on the social assistance system of the host Member

State. There is no evidence of expulsions on economic grounds in the other Member States.

The absence of data, however, means that this can only be stated with caution.

Certain Member States, such as

Ireland,

do not clarify in their legislation that expulsion

cannot automatically result from recourse to the social assistance system

639

. In practice,

Bank for Social Security(Kruispuntbank

van de Sociale Zekerheid / Banque Carrefour de la Sécurité Sociale).

State Secretary for Asylum and

Migration, ‘Withdrawal

of residence rights of EU citizens in Belgium: evolution

from 2008 to 2013’

(Intrekkingen

verblijfsrecht van EU-onderdanen in België: de evolutie van 2008 tot en met

2013)

(2014); Immigration Office, ‘Activity

Report 2012’

(Activiteitenrapport

2012)

(2013), p. 13.

632

Myria, ‘2015

Migration in numbers and in rights’

(2016), pp. 127-129;

Bailleux, A., Carlier, J.-Y., Dumont, D.,

Martens, P. and Nevens, J.E. (La Libre Belgique), ‘Free

movement of EU citizens: misuse by Belgium of its social

databanks’

(Libre

circulation des citoyens européens: du mauvais usage par la Belgique de ses banques de

données sociales)

(2015); Letter from Inco, ABVV-FGTB,

EU Rights Clinic en BXL Laïque on the expulsions of EU

citizens from Belgium

(Lettre

concernant les expulsions de citoyens européens de Belgique).

633

Myria, ibid, pp. 126-128

and 207; Immigration Office, ‘Activity

Report 2012’,

2013, p. 14 and p. 106.

634

Myria, ibid, p. 127.

635

Neilen, C., ‘Plans to Deport Eastern European Rough Sleepers Comes Under Fire’, The Guardian, 20 July 2010,

available at:

http://www.theguardian.com/society/2010/jul/20/eastern-european-rough-sleepers-deported;

See also Shaw, J. et al, ‘Getting to grips with EU citizenship: Understanding the friction between UK immigration

law and EU free movement law’,

Edinburgh Law School Citizenship Studies, 2013, p.31.

636

http://www.insidehousing.co.uk//6527844.article.

637

Shaw, J. et al, ‘Getting to grips with EU citizenship: Understanding the friction between UK immigration law

and EU free movement law’, (2013) Edinburgh Law School Citizenship Studies, p 32.

638

Your Europe Advice, Quarterly Feedback Report No.2, Quarter 3/2012 (July-September).

639

Article 14(3) of Directive 2004/38/EC; European Commission, Report on the 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, COM(2008) 840 final p. 7; U. Neergaard, C. Jacqueson, N. Holst-Christensen,

630

631

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however, stakeholders confirm that no expulsions took place on the grounds that the

person is deemed to be an unreasonable burden on the social assistance system, nor have

there been any complaints in respect of this issue

640

. It also appears that Ireland does not

expel EU citizens and/or their family members on purely economic grounds

641

A particular issue concerns those EU citizens and their family members who, lacking

sufficient economic resources, lose their residence rights but cannot be expelled from the

host Member State because they do not represent an unreasonable burden on its social

assistance system. The loss of their residence rights leads to the loss of any entitlement

to social benefits, which is based on the person being legally resident in the host Member

State

642

. This leads to a ‘de

facto expulsion’

since these EU citizens and their family

members are left with no resources with which to conduct a decent life in the host Member

State. The same applies to those EU citizens and their family members who are considered

an unreasonable burden on social assistance but who are not expelled, even though this

would be allowed under Directive 2004/38.

For instance, in

Belgium,

the majority of the decisions to terminate residence rights were

based on the person being deemed to be

unreasonable burden on social security

643

When the right of residence is terminated, the EU citizen and family members receive an

‘order to leave the territory’

644

. The order does not automatically lead to expulsion but,

rather, the EU citizen and his/her family members are

no longer registered

in Belgium

and are no longer entitled to receive social benefits

645

In the

UK,

cases regarding residence rights of EU citizens often arise in the context of

applications for social welfare. While courts frequently conclude that EU citizens and/or

their family members do not enjoy residence rights because of a

lack of sufficient

resources,

this determination usually leads national courts to categorise such individuals

as ‘lawfully

present’

in the UK but

without a ‘right to reside’

under Directive 2004/38.

Individuals are then subject to ordinary UK immigration control and are potentially liable

for deportation by the Secretary of State

646

9.3.2.

Public policy and public security

Issues concerning the

misapplication

of Article 27 Directive 2004/38 on the restrictions

on the right of entry and the right of residence on grounds

of public policy, public

security or public health

have been reported in

DK, EL, FR, IE, IT

and

the UK.

France

is experiencing issues with the question of when expulsions can be carried out

based on a threat to public policy. Under French law

647

, the prefect is allowed to expel all

foreign nationals, including EU citizens, who are considered a threat to public order,

Union Citizenship: development, impact and challenges, XXVI FIDE Congress in Copenhagen 20014, Congress

Publications vol. 2, DJØF Publishing, Denmark, 2014, p. 650.

640

Information obtained through consultation with stakeholder (Immigrant Council of Ireland, Your Europe Advice

Service and KOD Lyons Solicitors, March 2016).

641

Information obtained through consultation with stakeholder (KOD Lyons Solicitors, March 2016); Information

obtained through consultation with stakeholder (Your Europe Advice Service, March 2016).

642

Case C-333/13

Dano

[2014] ECLI:EU:C:2014:2358.

643

Immigration Office, ‘Activity

Report 2013’,

2014, p. 108.

644

State Secretary for Asylum and Migration, ‘Withdrawal

of residence rights of EU citizens in Belgium: evolution

from 2008 to 2013’

(Intrekkingen

verblijfsrecht van EU-onderdanen in België: de evolutie van 2008 tot en met

2013)

(2014).

645

Ibid.

646

Kaczmarek v Secretary of State for Work and Pensions

[2008] EWCA Civ 1310, particularly para.5.

647

Article 65 of Law 2011-672 on immigration, integration and nationality (Loi

2011-672

relative à l’immigration,

l’intégration

nationalité

June

2011,

available

at:

https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000024191380&dateTexte=20160502.

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especially if the person(s) is ‘subject to criminal proceedings’ for certain offences, such as

drug trafficking, trafficking in human beings, pimping, exploitation of begging and illegal

occupation of land.

Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

French law

648

allows for the expulsion of foreign nationals, including EU citizens, who have

resided legally in France for less than three months based on the

mere suspicion

that

the person has committed one of the offences listed above. No conviction is required. This

directly contradicts Directive 2004/38/EC, which states that the threats justifying an

expulsion must be ‘genuine, present and sufficiently serious’ to the fundamental

interests

of society

649

. Previous convictions have also been used in France to justify expulsions.

According to the figures obtained by the European Roma Rights Centre (ERRC) in 2012, a

number of persons ‘asked’ to leave French territory had all just

been released from prison.

Ireland,

a proposal to issue a removal order is triggered as soon as a person is served

with a custodial sentence

650

. Many of the causes for such expulsions are, therefore, due

to a person’s conduct (i.e. criminal conduct)

651

. As outlined in the Irish country report, a

number of cases concern removal and exclusion orders which have been made against

persons on the grounds that, following their

criminal conviction,

their remaining in the

State is contrary to public policy. In the recent 2016 case

Balc v Minister for Justice

652

, the

Minister for Justice and Equality issued a removal order imposing an exclusion period of

five years against the applicant for being a serious risk to public policy, as the applicant

had served a prison sentence for sexual assault

653

. This decision was deemed lawful by

the court

654

The CJEU has established that serious crimes such as the sexual exploitation of children,

may justify the expulsion of an EU citizen who has lived for more than 10 years in the host

Member State only if the individual concerned represents a genuine and present threat

affecting one of the fundamental interests of society. This implies a general assumption of

a propensity to act the same way in the future

655

. A generalised practice of expulsion

following a criminal conviction violates Directive 2004/38.

The same problem is present in

Italy,

where the Local Government Offices seem to violate

Directive 2004/38

656

, insofar as they issue expulsion decisions on the grounds of

any guilty

verdict by a court.

In the

UK,

a person’s previous criminal convictions do not themselves justify an expulsion

decision

657

. However, recent changes to Home Office Guidelines mean that all EU offenders

given

one or more custodial sentences

are referred for consideration for deportation.

There is no longer a requirement that the sentence be of particular length before a referral

is made

658

. In numerous cases, national courts have emphasised the need for a

present

threat to a fundamental interest of society, warning against using previous convictions or

offender assessment reports made at the time the offence was committed to inform a

Ibid.

Article 27 of Directive 2004/38/EC.

650

Information obtained through consultation with stakeholder (KOD Lyons Solicitors, March 2016).

651

Ibid.

652

Balc v Minister for Justice

[2016] IEHC 47.

653

Ibid., at para 44-45.

654

Ibid., at para 130-131.

655

Case C-348/09

P.I.

[2012] ECLI:EU:C:2012:300.

656

Citizens without Borders, Free Movement and Residence in the European Union:, a Challenge for European

Citizenship, 31 May 2013, available at:

http://www.meltingpot.org/IMG/pdf/citizien_inglese.pdf, p. 42.

657

Reg 21(5)(e) of the EEA Regulations.

658

Home Office Guidance, ‘Criminal Casework –

European Economic Area (EEA), Foreign national offender (FNO)

cases’, 6 October 2015, p.

649

648

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deportation decision

659

. However, in several cases, previous convictions have been taken

in conjunction with

evidence of an individual’s continued unwillingness to reform or to

abide by the law in order to determine a present threat.

Denmark,

where Union citizens or their family members have not yet acquired

permanent residence, offences punished by a prison sentence are sufficient to justify

expulsion. This system skirts close to a

presumption of expulsion,

a practice

consistently censured by the CJEU in its case law

660

Finally, it has been reported that, in

Greece,

a Polish citizen was denied a registration

certificate solely because she had recently received a minor sentence following her

conviction for insulting a police officer

661

. In 2008, a Romanian citizen was denied a

registration certificate because he had been convicted of committing a series of burglaries

over a long period of time and for illegally entering Greece

662

9.3.3.

Increasing level of protection

Issues

have been reported with the

increased protection

established by the Directive

for EU citizens who have resided in the host Member State for more than five years - who

can only be expelled based on serious grounds of public policy or public security - and the

even higher level of protection for those resident for more than 10 years - for whom only

imperative grounds of public security justify expulsion

663

. This is the case in

Denmark

and

the UK.

The

requires

continuous, legal residence in the 10 years

prior to the deportation

decision in order to trigger enhanced protection, although this is not an explicit

requirement under Directive 2004/38

664

. Meaningful access to enhanced protection is

arguably severely hindered by these requirements, since periods of imprisonment do not

constitute legal residence and can thus break the continuity of residence, effectively

resetting it to zero. Most deportation decisions follow a period of imprisonment, thereby

precluding access to this enhanced protection even for EU citizens who have lived in the

UK for decades prior to their imprisonment. The CJEU has confirmed that the UK approach

of counting

backwards

for the deportation order is in line with the wording of Article 28,

although a holistic consideration of the EU citizen’s integration into the UK is also

required

665

. This approach has been incorporated into Home Office Guidance

666

. At the

administrative level, there is a lack of consistency in determining whether or not a person

has resided in the UK for the past 10 years, despite a period of imprisonment prior to the

deportation order, which has led to

inconsistent application

of the enhanced

protection

667

. In addition, the UK does not consider primary carers of a child with EU

citizenship, who benefit from derived residence rights under the

Chen

668

and

Zambrano

669

case law, as beneficiaries of the higher level of protection from deportation afforded by

659

A, B, C v Secretary of State for the Home Department

[2013] EWHC 1272 (Admin);

BF (Portugal) v Secretary

of State for the Home Department

[2009] EWCA Civ 923.

660

Neergaard et al. ‘Union Citizenship: Development, Impact and Challenges.’ The XXVI FIDE Congress in

Copenhagen, 2014. Congress Publications Vol. 2, p.131.

661Ibid, p 592.

662 Ibid.

663

Article 28 of Directive 2004/38/EC.

664

Case C-400/12

[2014] ECLI:EU:C:2014:9; At national level, see

HR (Portugal) v Secretary of State for

the Home Department

[2009] EWCA Civ 371.

665

Case C-400/12

[2014] ECLI:EU:C:2014:9..

666

Home Office Guidance, ‘Criminal Casework’, p.

667

Compare

Bulale

[2008] EWCA Civ 806 and

VP (Italy) v Secretary of State for the Home Department

[2010]

EWCA Civ 806.

668

Case C-200/02

Zhu and Chen

[2004] ECLI:EU:C:2004:639.

669

Case C-34/09

Ruiz Zambrano

[2011] ECLI:EU:C:2011:124.

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

Directive 2004/38. Instead, expulsion decisions are made under ordinary UK immigration

law, on the basis of whether or not deportation would be ‘conducive to the public good’

670

Denmark,

the relevant national rules link the expulsion of a foreigner who has lived

for more than nine years in Denmark to offences punishable by more than three years in

prison. Since most of these cases will involve residence for more than 10 years, there

seems to be an

incorrect application

of the ‘imperative grounds of public security’

criterion established by Article 28(3). When a foreigner has lived there for between five

and nine years, offences that are punishable by just one year in prison are sufficient to

justify an expulsion. This does not seem to be in line with the serious grounds of public

policy or public security criteria of Article 28(2)

671

9.3.4.

Vagueness of grounds justifying refusals of entry, residence and expulsions

In many Member States (such as

CZ, DE, FI, IT, LT and PL)

the grounds for refusal of

entry, residence and expulsion are

not sufficiently determined

by legal provisions and

administrative guidelines. This leaves the national authorities with

excessive discretion

and leads to legal uncertainty for EU citizens and their family members.

Italy,

the reference made in the transposing legislation to a number of other provisions

(contained in Laws, Decrees, Codes, Articles, etc.) makes it difficult to identify the crimes

for which an EU national may be expelled. In particular, the conditions for removal for

other reasons of public policy or public security

have been criticised by academics

672

for

being too general, therefore not complying with EU requirements (in particular, the clear

definition of the protected interests of society

673

Similarly, in

Poland,

the grounds for the restriction of the right of entry, residence and

expulsion are quite vague, and no clear guidelines have been issued. Each case is decided

on its individual merits, allowing for considerable administrative discretion.

The

Czech Republic

does not provide any conceptual framework for its interpretation of

public policy, public security and public health

674

Germany,

there is no explicit transposition of Article 14(3) excluding expulsion as an

automatic consequence of recourse to the social assistance system. Even though this

provision is respected under the current legal regime and is correctly applied in practice,

a clarification in the legislation would provide more legal certainty.

It is also reported that, in

Lithuania,

authorities have considerable discretion in assessing

specific cases, as no clear guidelines are in place. Similarly,

Slovenia, Bulgaria, Portugal

and

Cyprus

have no publicly available guidelines.

Reg 21A(3)(a) of the EEA Regulations.

Neergaard et al. “Union Citizenship: Development, Impact and Challenges.” The XXVI FIDE Congress in

Copenhagen, 2014. Congress Publications Vol. 2, p. 131.

672

B. Nascimbene, A. Di Pascale, ‘Italy’ p. 674;

Associazione per gli Studi Giuridici sull’Immigrazione

(ASGI), G.

Perin e P. Bonetti, ‘Allontanamento

dei cittadini dell’Unione Europea e dei loro familiari e tutele giurisdizionali’,

Scheda pratica, 23 March 2012, p. 11.

673

European Commission, Communication 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, Brussels 2009, COM(209) 313 final, available at:

http://eur-lex.europa.eu/legal-

content/EN/TXT/PDF/?uri=CELEX:52009DC0313&from=EN , p. 10.

674

Carrera, S. and Faurer Atger, A., Implementation of Directive 2004/38 in the context of EU enlargement, April

2009, Centre for European Policy Studies, Brussels, 2009, available at:

http://aei.pitt.edu/10758/1/1827.pdf, p

10.

671

670

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9.3.5.

Safeguards

Some issues have been reported with respect to the

safeguards

in place against refusals

of entry, residence and expulsions in certain Member States (e.g.

BE, IE, LT

and

the UK).

Lithuania,

recently adopted amendments have abolished the one-month period for EU

nationals to leave the territory of the host Member State when served with an expulsion

decision. Instead, these amendments have introduced a general time limit of 7-30 days,

which, in practice, may mean that EU nationals will have

less than one month to leave

the country, in contrast to Article 30(3) of the Directive. No cases of application of this

provision have been reported

675

Transposition problems have been reported for

Ireland

and the

UK.

In fact, Article 31 of

the Directive concerning procedural safeguards has not been sufficiently transposed in the

Irish 2015 Regulations. In the

UK,

transposition of Articles 30 and 31 of Directive 2004/38

remains problematic. Recent amendments to the EEA Regulations appear to widen the gap

between the protection offered by the Directive and the national legislation. For instance,

as described in the UK country report,

new restrictions

have been imposed on the appeal

rights of partners in durable relationships with Union citizens, requiring them to provide

proof of the relationship before appeal rights will be granted. More broadly, the UK imposes

a requirement that family members produce evidence that they are,

inter alia,

the family

member of an EEA national

before

they are granted appeal rights

676

. This is problematic

because the requirement to provide

proof of the applicant’s status as a family

member

is the substance of the appeal where an individual is refused entry or residence

on the basis that they are not family members under Directive 2004/38, making it a Catch-

22 situation. In addition, UK law continues to stipulate that certain appeals cannot be

made from within the UK

677

Finally, in

Belgium,

violations of the right to be heard and children’s rights at the

administrative level have been reported. However, the judicial review offered by the Alien

Litigation Council seems to effectively redress these violations. In fact, the Alien Litigation

Council suspended two expulsion orders for TCNs who had formed a dependent family with

an EU citizen, on the basis of a violation of the right to be heard

678

. In both cases, the TCN

was unable to explain their family situation, which the Immigration Office should consider

when taking a decision regarding expulsion, together with the rights of the child and the

health situation of the individual

679

. The Council of State held that the Immigration Office

must hear the concerned party in order to allow him/her to provide arguments against the

termination of his/her right to residence before deciding whether or not to terminate such a

right

680

. The Immigration Office thus has a duty to actively investigate the case by collecting

all relevant information, including explicitly inviting the foreigner to be heard

681

. It has been

Groenendijk, K., et al., European Report on the Free Movement of Workers in Europe in 2012-2013, 2014,

p.14.

676

Reg 26(3) of the EEA Regulations.

677

Reg 27(1) of the EEA Regulations.

678

See, for example:

X v Belgium

[2015], Alien Litigation Council No. 128.856;

X v Belgium

[2015], Alien

Litigation Council No. 130.247; Crosspoint Migration-Integration,

‘Alien

Litigation Council

suspends expulsion

order due to violation of the right to be heard’

(RvV

schorst uitwijzingsbevel wegens schending hoorrecht’)

(2014).

679

Crosspoint Migration-Integration,

‘Alien

Litigation Council suspends expulsion order due to violation of the

right to be heard’

(2014).

680

See, for example:

XXX v Belgium

[2015], Council of State judgment No. 230.257; Crosspoint Migration-

Integration, ‘Foreign

Affairs Office needs to hear concerned persons before ending right to residence’

(DVZ

moet

betrokkene horen alvorens verblijfsrecht te beëindigen),

(2015).

681

Ibid.

675

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

reported that, in several of its cases, the Alien Litigation Council has ruled that the

Immigration Office failed to take the importance of the child sufficiently into account when

making decisions on the right of residence of EU citizens, thereby violating Article 8 ECHR

on the right to respect for private and family life

682

. For example, in 2015 the permanent

residency rights of a Romanian woman and her family members who had been in Belgium

for five years were withdrawn because they had been granted such rights on the basis of a

fraudulent situation. The Alien Litigation Council found that the Immigration Office failed to

consider the interests of the children, who went to school in Belgium, or to account for their

adaptability in the case of a return to Romania

683

See, for example:

X v Belgium

[2014], Alien Litigation Council No. 117.967,

point 4.3.2; Myria, ‘2015

Migration

in numbers and in rights’,

2016,

p. 113-114;

Children’s Rights Commissioner (Kinderrechtencommissariaat

Commissariat aux Droits de l’Enfant),

‘Policy

note on Asylum and Migration: from a childrens’ rights perspective’

(Beleidsnota

Asiel en migratie: vanuit kinderrechten bekeken),

2015, p. 3-4.

683

X v Belgium

[2014], Alien Litigation Council No. 126.119, point 2.3.

682

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10.

CONCLUSIONS

The right to free movement of EU citizens and their TCN family members is one of the

main pillars of the European Union. It is enshrined in the EU Treaties, in the Charter of

Fundamental Rights and is implemented notably through Directive 2004/38/EC.

Notwithstanding its importance, the transposition process has been long and difficult,

leading the Commission to initiate infringement procedures against a number of Member

States and leading citizens to go to court in order to have their right to free movement

reaffirmed.

The right to free movement has been put under particular pressure in recent years. In

April 2013, four EU governments (AT,

DE, NL

and

the UK)

wrote a letter to the then

President of the Justice and Home Affairs Council calling on the EU to change its rules on

free movement. They claimed that EU citizens were abusing free movement rules for the

purposes of benefit or welfare tourism and that there had been an excessive strain on the

social security systems in the receiving states as a result. The letter recommended making

it harder for EU citizens/TCN family members to claim benefits when moving to another

Member State and asked for measures to fight fraud and abuse of free movement

684

The debate on free movement and the introduction of modifications to the Directive has

continued since. As the

was preparing to hold a referendum on whether to leave or

stay in the EU, the European Summit of 18 and 19 February 2016 adopted an agreement

paving the way for restrictive modifications to the free movement regime. The agreement,

which would have entered into force only if the UK had voted to remain in the EU, fell in

the wake of the referendum result. The current free movement regime remains

unchanged, though the whole episode - on the back of the 2013 letter

–

puts considerable

pressure on what is a fundamental right.

Against this backdrop, this study shows that

there is still work to be done in order to

ensure that the right of citizens to move freely in the EU is properly guaranteed

and that the transposition of the Directive is completed.

Ten years after the deadline

for transposition of the Directive,

transposition

is for the most part in line with the

Directive in the nine selected Member States. However, some challenges remain.

Article

14 on the retention of the right of residence

and

Article 27 on restrictions to entry

and residence on grounds of public policy, security and health

appear to be the

most problematic

provisions as the majority of the nine selected Member States have

not effectively and completely transposed them.

A number of

transposition issues

are the result of the

terminology

used in the Directive

itself. For example, Member States have had trouble defining the concepts of

‘sufficient

resources’, ‘unreasonable burden’, ‘dependent family members’, ‘durable

relationship duly attested’, ‘genuine chance of being engaged’ and ‘public

security and public policy’

in their national legislation, often leaving it up to the

discretion of the competent authorities to interpret such concepts. This has led to the

unreasonable restriction of free movement and residence rights.

684

The

letter

the

Presidency

130415_letter_to_presidency_final_1_2.pdf.

available

at:

http://docs.dpaq.de/3604-

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

While the

right of entry

is broadly unproblematic for EU citizens, it is far more challenging

for TCNs who face numerous bureaucratic obstacles, especially with regard to obtaining

visas.

The picture is less positive with regard to the

right of residence

where EU citizens

(particularly frontier workers) and TCN family members face numerous

obstacles,

including

onerous documentation requirements,

excessive

delays,

excessive

fees,

scarce and confusing information

and the justification of

denials

of the right of

residence

on invalid grounds.

Although the right of access to

social security

is not directly linked to, or specifically set

out in, Directive 2004/38/EC, it does concern free movement as EU citizens and their

family members should be able to access such social security services in another Member

State. From the research conducted, EU citizens and their family members have

encountered issues while trying to access

old age pensions, healthcare, family

benefits and unemployment benefits

in another Member State. Such obstacles are

mainly due to

bureaucratic issues,

lack of knowledge

of the applicable legal

framework and a

lack of coordination and communication

between national

authorities of different Member States.

EU citizens and their family members have also experienced

other recurring obstacles,

which, although not directly linked to Directive 2004/38/EC, relate to other Directives and

EU legislation concerning free movement rights. Such obstacles include

accessing

employment, using vehicles

in another Member State,

double taxation

of salaries and

pensions,

poor administrative services,

additional requirements for EU citizens seeking

to register to vote/stand as a candidate

in European and municipal elections in

another Member State and issues with the

recognition of academic diplomas

from

another Member State.

While there is a lot of information on

discrimination

on grounds of nationality,

racial/ethnic origin and sexual orientation/civil status in general, only a limited number of

complaints and petitions have been found. Therefore, while it is not possible to conclude

that discrimination on such grounds in accessing free movement and residence rights is

an extensive problem, EU citizens (particularly Roma) and TCN family members have

nonetheless experienced some discrimination on grounds of

nationality and

racial/ethnic origin

accessing employment, education, banks and financial

services, housing, social protection and public transport.

Moreover, a number of discriminatory obstacles to free movement have been encountered

same-sex couples

in registered partnerships in

Slovakia

and

Poland,

on grounds of

their civil status/sexual orientation, when accessing their entry, residence and social

security rights. Such obstacles include

refusal of the right of permanent residence

status,

non-recognition of residence cards

issued by another Member State leading to

refusal of entry,

refusal to grant a residence card or a work permit

and uninsured

persons being

excluded from the health insurance of their partner.

While there are

measures

in all of the Member States to combat

marriages of

convenience

and most of the Member States have adopted measures to address

different kinds of fraud

aimed at obtaining free movement rights, there is a

lack of

data

available to enable assessment of whether these measures are effective or whether

they inhibit free movement rights in practice. However, there is some evidence from

certain Member States indicating that these measures have a negative or disproportionate

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impact on the right to free movement. For example, serious concerns relate to an

inversion of the burden of proof,

where EU citizens and their spouses are required to

demonstrate that their

marriage is not one of convenience.

Moreover, certain Member

States

systematically investigate marriages

between EU citizens and TCNs.

Data concerning the number and main reasons for

refusals of entry, refusals of

residence rights and expulsions

of EU citizens and their family members are rarely

publicly available, if collected at all. National authorities are often unwilling to provide this

sort of information. Furthermore, while some data is available in a few Member States, it

more often than not does not specify whether the data relates to EU citizens/TCN family

members. Therefore, from the information available, it is impossible to firmly assess,

compare and conclude how many EU citizens/TCN family members have been refused

entry and residence rights or have been expelled from the Member States and the main

reasons for such refusals and expulsions.

From the limited data available, it appears that refusals of entry, residence and expulsions

on the basis of a

lack of sufficient economic resources

are a recurrent issue in certain

Member States. A considerable number of Member States also misapply the possible

restriction on free movement based on

public policy and public security.

When

Austria, Germany, the Netherlands

and the

wrote to the then Council

Presidency to express concern at the abuse of free movement rights, they provided no

hard evidence to support their argument that benefit tourism was either a major or

growing problem. This study has also found no compelling evidence to back up this claim.

These four Member States, in addition to the other EU Member States, have measures in

place to combat abuse of free movement rights. No resounding evidence has been found

to indicate that these measures have been frequently implemented in Austria, Germany,

the Netherlands and the UK to combat instances of abuse of rights, suggesting that such

abuse is rare. Only the UK seems to make more widespread use of such measures. Nor is

there clear evidence of an excessive strain being placed on the social security systems of

these receiving Member States as a result of the influx of EU citizens and their TCN family

members. This once again highlights that the “problem” of free movement is chiefly a

political problem.

While the study has found almost no evidence of abuse of rights or large-scale social

security challenges linked to free movement, it has nonetheless highlighted that, 14 years

after Directive 2004/38 was adopted, its transposition and implementation remain

problematic. While transposition is largely compliant with the Directive, issues exist in all

of the Member States analysed. One of the key issues arises from broad and general terms

and requirements which, if not clearly defined at national level, give a wide margin of

discretion to national authorities to interpret such terms in ways which are potentially at

odds with the spirit of the Directive. The practical implementation shows a

tendency to

make the most of the permitted restrictions

to the rights of entry and residence and

interpret the Directive in a restrictive manner.

The question of free movement and the presence of EU citizens in the UK was a key issue

in the referendum on the UK’s future membership of the EU. Indeed, it was one of the

chief drivers of the vote to leave (and now throws up a number of free movement-related

questions - not least on the future of EU citizens in the UK and UK nationals in the EU).

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

Yet, paradoxically,

free movement is the EU right most cherished by Europeans

685

and is seen as the major achievement of European integration by European citizens

686

Respondents to the European Commission’s public consultation on EU citizenship also

expressed positive views about free movement. A large majority were of the opinion that

free movement within the EU promotes cultural diversity (81%) and fosters mutual

understanding (77%). Only 16% expressed the view that free movement creates

problems, with those expressing this view tending to refer especially to practical

reasons

687

. Over 14 million EU citizens are now resident in another Member State on a

stable basis.

This study highlights again the persisting gaps and obstacles and calls for fresh efforts to

reinvigorate the principle of free movement and ensure that it delivers on a day-to-day

basis for citizens. This calls for careful monitoring of the transposition and implementation

of the Directive to guarantee the fundamental right to free movement, enshrined in the

Treaties and in the Charter of Fundamental Rights and a pillar of the EU, and central to

the functioning of the European single market.

European Commission, ‘Free movement of people:five actions to benefit citizens,

growth and employment in

the EU’, Press Release, 25 November 2013, available at:

http://europa.eu/rapid/press-release_IP-13-

1151_en.htm.

686

European Commission, ‘Standard Eurobarometer 80: Autumn 2013: Public Opinion in the European Union’,

December 2013, available at

http://ec.europa.eu/public_opinion/archives/eb/eb80/eb80_first_en.pdf,

p.38;

Fondation

Robert Schuman, ‘The Free Movement of People in the European Union:principle, stakes and

challenges’, Europe Issue No 312, 12 May 2014, available at:

http://www.robert-schuman.eu/en/european-

issues/0312-the-free-movement-of-people-in-the-european-union-principle-stakes-and-challenges.

687

European Commission, ‘EU citizenship 2015: Common values, rights and democratic participation’, 2016,

available at:

http://ec.europa.eu/justice/citizen/document/files/2015_public_consultation_booklet_en.pdf,

p.8.

685

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11.

RECOMMENDATIONS

The recommendations aim at addressing the key issues in relation to the transposition and

implementation of Directive 2004/38/EC identified during the research for this Study.

Recommendations are addressed in turn to the European institutions and to the Member

States.

11.1. Recommendations for the European Parliament and the

European Commission

11.1.1.

Recommendation 1: Collect more systematic and comparable information and

data at Member State level

Issue:

The availability of information at EU level on the implementation of the Directive

is scarce. This study is based on information collected by national experts. However,

information is not systematically gathered and published by public authorities. In some

Member States, access to the information was very difficult. The study, therefore, refers

to cases that may be representative of a more general problem but, in the absence of full

information, it has not been possible to draw wholly robust conclusions. There is also a

need for a systematic approach at EU level, for example by requiring Member States to

collect the same information and to submit it to the Commission. Free movement rights

are central for the EU and to the functioning of the European single market and deserve

close scrutiny by the European Parliament and European Commission.

Similarly, the data on refusal of residence and expulsion of EU citizens and family members

was, if collected at all, rarely available or publicly accessible in most of the Member States.

While requests for the purposes of this study were sent to all Member States, only a small

number responded with comprehensive information. Where the data were provided, they

were not comparable across Member States. For example, the data often do not distinguish

between TCN family members of EU citizens and other third country nationals. Therefore,

there is a need for collection of data in a rigorous and comparable manner in order to

understand how the Directive is applied and what issues may exist.

Recommendation:

The European Commission should require Member States to collect

and provide data on the number of refusals of entry and residence and the number of

expulsion of EU citizens and family members as well as the reasons for the refusals and

expulsion. The European Commission should also request Member States to regularly

report information on the implementation of the Directive. To this end, the European

Commission should at least request precise and clear information on the key rights

established in the Directive, in particular regarding the points where the most issues and

barriers have been identified, but also to assess the recent trends and monitor the possible

impact of other events (such as the debates in the EU before and after the Brexit vote,

the immigration crisis, terrorists attacks, new measures, etc) on the implementation of

the Directive.

11.1.2.

Recommendation 2: Enforce full transposition

Issue:

While Member States have largely aligned their national legislation with the

Directive, issues of transposition have been identified in all the Member States selected

for the in-depth analysis. The transposition issues vary from minor gaps or ambiguities to

lack transposition of some key Directive requirements. For example, national legislation

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

does not always explicitly guarantee that conditions of residence should not be

automatically verified or that expulsion must not be an automatic consequence of recourse

to social security. In some cases, the Directive’s

requirements are reflected in

administrative guidelines rather than in legally binding texts. The former cannot be

considered as effective transposition of the Directive as required by extensive case law

688

These transposition issues must be addressed in an effective and prompt manner.

Recommendation:

The European Commission should monitor closely and enforce the full

transposition of the Directive in all the Member States. The European Commission should

act more systematically on Member States’ breaches

of the Directive. While the European

Commission has initiated 29 infringement proceedings since 2008 related to various

transposition issues, none of which went as far as the CJEU, the fact that the transposition

is still problematic in several Member States shows that rigorous monitoring and action

from the Commission are still needed.

11.1.3.

Recommendation 3: Clarify terms

Issue:

The Directive provides a number of requirements allowing for a margin of

interpretation on the part of the Member States. For example, the Directive leaves it up

to Member States to determine if public policy and public security grounds can justify the

expulsion of EU citizens and their family members. However, some Member States do not

sufficiently determine what is covered by the grounds of public policy and public security,

leaving a wide margin of appreciation to national administrative authorities in their

decisions, which is insufficiently controlled either by the legislative framework or by judicial

oversight.

In addition, a number of terms can result in various interpretations by Member States,

some of which could be against the spirit of the Directive. The CJEU has stepped in to

further clarify some terms. However, national legislation needs to be amended to reflect

recent CJEU case-law and uncertainties still remain in relation to a number of terms. The

following terms require (further) clarifications:

‘Dependants’ (Article 3(2)): Some Member States do not define who is considered

a dependant. The CJEU has further defined who can fall within the scope of

dependants. Accordingly, the status of dependant

family member is the result of ‘a

factual situation characterised by the fact that material support for the family

member is provided by the holder of the right of residence’

689

‘Durable relationship duly attested’ (Article 3(2)): what

is meant by durable

relationship must be defined by Member States. However, it is not always clearly

Case C-131/88 Commission v Germany, [1991] E.C.R. I-825: it requires a legally binding legislative or

regulatory provision of ‘unquestionable binding force, or with the specificity, precision and clarity required by the

case-law of the Court in order to satisfy

the requirement of legal certainty’ (…) ‘so that, where the directive is

intended to create rights for individuals, the persons concerned can ascertain the full extent of their rights and,

where appropriate, rely on them before the national courts’

Case C339/87 Commission v Netherlands [1990] E.C.R. I-851 referring to Case C-429/85 Commission v Italy

[1988] ECR 843 states that ‘mere administrative practices, which by their nature may be changed at will by the

authorities, do not constitute proper transposition’

Case C339/87 Commission v Netherlands [1990] E.C.R. I-851 referring to Case 236/85 Commission v

Netherlands [1987] ECR 3989 stats that administrative practice does not constitute sufficient transposition

‘irrespective

of the fact that an administrative practice may be in conformity with the requirements of protection

laid down in the directive’

689

CJEU C-200/02 Zhu and Chen, ECLI:EU:C:2004:639, para 43.

688

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defined, leaving a wide margin of appreciation to national authorities to interpret

what durable relationship means.

‘As soon as possible’ (Article 3): The Directive requires Member States to ensure

that visas for TCN family members of EU citizens are issued as soon as possible.

This term leaves a margin of interpretation on the number of days considered

‘as

soon as possible’.

‘Sufficient resources’ (Article 8): The notion of sufficient resources is not always

defined in national legislation, which may cause difficulties with respect to

entitlement to a registration certificate or residence card.

‘Unreasonable burden’ (Article 14): The requirement of not being an unreasonable

burden in order to retain the right of residence has proved challenging in most

Member States. While some Member States mirror the Directive’s provision, they

do not define the concept, leaving it up to the discretion of the competent

authorities. Others transpose the concept incorrectly or interpret it narrowly. The

consequence of these inconsistencies has led to expulsions on the grounds that an

individual is deemed an unreasonable burden on the social assistance system of

the host Member State.

‘Genuine chance

of being

engaged’ (Article 14): The Directive guarantees that

jobseekers cannot be expelled from the host Member State as long as they are

seeking employment and have a genuine chance of being engaged. The

interpretation of this term may vary from one Member State to another and, if not

sufficiently defined, could lead to wide discretion for national authorities.

‘Reasonable and non-discriminatory period of time’ (Article 15): The Directive

enables Member States to require citizens to register within a reasonable and non-

discriminatory period of time. These terms also leave a margin of interpretation for

Member States, which leads to abuses and breaches of the Directive.

‘Grounds of public security and public policy’ (Article 27): As the Commission

Communication highlights, the grounds of public security and policy must be

defined by the Member States. However, some Member States have not defined or

not sufficiently defined what falls within public security and public policy at national

level. This leaves too wide a margin of discretion to national authorities to decide

on expulsions on those grounds.

Recommendation:

The European Commission should update and expand its guidance

for better transposition and application of Directive 2004/38/EC in order to include the

recent developments from the CJEU as well as additional clarifications on aspects of the

Directive which were not covered. The European Commission should use the approach of

the Transposition Implementation plans (TIPS) to ensure the complete and proper

application of the Directive, in particular with the support of interpretative transposition

guidelines and a transposition checklist. TIPS consist of an inventory and planning of

proactive measures with a focus on provisions likely to pose difficulties in order to ensure

timely and complete transposition as well as proper application of a directive.

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11.1.4.

Recommendation 4: Address citizens’ complaints as

a priority and supplement

SOLVIT with a hotline

Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

Issue:

Incorrect application of the Directive has been reported in many Member States.

The application of the Directive may be incorrect as a result of an excessively strict or

invalid interpretation of the Directive or lack of knowledge of the rights and obligations

established by it. Instances of incorrect application include refusals of visa or permanent

residence status on invalid grounds or without a justified reason. It can also occur in

relation to expulsion decisions where, for example, there is no clear indication that the

personal situation of the applicants is taken into consideration when determining if they

represent an unreasonable burden on the social assistance system of the host Member

State. The vagueness of the justifications provided as grounds for withdrawing residence

rights or for expelling a person is particularly problematic. Incorrect application can result

from legal provisions that are not sufficiently clearly determined or because too much

discretion is granted to national authorities. This leads to legal uncertainty for EU citizens

and family members.

Recommendation:

The European Parliament Petitions Committee should continue to

monitor closely petitions in relation to free movement rights and work in close

collaboration with the European Commission to address the petitions.

The SOLVIT service is an online service that connects citizens with the national

administration in each EU Member State to support them when their rights as EU citizens

are breached by public authorities. The SOLVIT service aims to help citizens with issues

related to free movement rights, including the right to entry and residence and

discrimination, before any judicial or administrative appeal is sought. It is crucial that

complaints received within the SOLVIT system are dealt with effectively and rapidly. As

the SOLVIT service is based online, it is not able to address free movement issues which

require immediate attention, as would be the case of citizens and their family members

being refused entry to a Member State at the border, facing expulsion or in need of urgent

healthcare. In such situations, immediate action or information may be critical and there

is a risk that the citizens are put in a situation where heavy costs are incurred or where

they suffer consequences which cannot be undone. Therefore, the SOLVIT service should

be supplemented with a hotline that would allow EU citizens and their family members to

receive timely information and support when facing barriers to the exercise of their free

movement rights. The hotline staff would then be able to assess whether a complaint may

require speedy handling.

11.1.5.

Recommendation 5: Raising awareness about rights

Issue:

The lack of information on rights and obligations is a consistent issue raised across

the Member States and constitutes an important barrier to the exercise of free movement

rights. What is particularly problematic is the absence of information or the provision of

incorrect or confusing information on visa requirements for family members or on

residence rights. Correct information is essential for correct application of the Directive.

Recommendation:

The European Parliament and the European Commission should

increase their efforts to raise awareness among EU citizens and their family members of

their free movement rights.

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11.2. Recommendations for Member States

11.2.1.

Recommendation 6: Complete the transposition of Directive 2004/38/EC

Issue:

Instances of incorrect or incomplete transposition have been identified in all the

Member States analysed in depth for this study (see recommendation 2).

Recommendation:

Member States must take, without delay, the necessary action to

ensure that their national legislation reflects all the requirements of the Directive.

11.2.2.

Recommendation 7: Remove unnecessary barriers

Issue:

Facilitation of the right of entry and residence to TCN family members is

problematic in a number of Member States. As mentioned under section 3, TCN family

members in at least nine Member States have been denied access to the accelerated

procedure for visas. Similarly, in a number of Member States, TCN family members have

been required to pay for their visas.

Delays and excessive documentation requirements are recurrent barriers reported in

relation to the right to entry and residence. For example, EU citizens and their family

members report excessive delays in obtaining a residence card/registration certificates in

twelve Member States. The delays in obtaining a residence card have an impact on access

to employment or essential services such as healthcare.

Discrimination against same-sex couples who are exercising their free movement rights

has been reported in a number of Member States. For example, despite recognising civil

partnerships, some Member States have rejected applications on the part of EU citizens’

civil partners or do not recognise civil partnerships contracted in other Member States.

Recommendation:

Member States should ensure the removal of unnecessary barriers to

the right of entry/residence in particular as regards the requirement to report presence,

excessive administrative requirements at the borders for EU and non-EU Member States,

granting TCN family members access to the accelerated entry procedure, the

establishment of appeal systems against refusals and any discriminatory practices.

11.2.3.

Recommendation 8: Providing information on rights

Issue:

As mentioned above, the lack of information as well as incorrect or confusing

information about visa requirements for family members and residence rights are

recurrent barriers to the exercise of free movement rights by EU citizens and their family

members.

Recommendation:

Member States should ensure that national authorities provide clear

and sufficient information regarding requirements for visas for TCN family members and

residence rights.

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11.2.4.

Recommendation 9: Guidelines and training on the Directive’s

rights and

obligations

Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

Issue:

National authorities are not always fully aware of the rights and obligations

established under Directive 2004/38/EC. As a result, they do not always recognise some

rights or they misapply the Directive. For example, issues have been reported in a number

of Member States of a lack of recognition of the EHIC or denial of the accelerated visa

application procedure for family members.

When the requirements of, for example, entry for TCN family members are not fully defined

in the national legislation, responsibility for ensuring the right to entry is left to individual

staff working for the authorities who might not be aware of the legislation. This leaves

potentially a lot of discretion to the national authorities. A harmonised approach and

training should be provided.

Incorrect and inconsistent decisions not only impact significantly on those directly

concerned, but the compounding effect of repetitive incorrect decisions is also costly for

the organisation itself and wider public services, such as ombudsmen and appeal bodies,

which need to absorb the increased number of appeals and complaints. It is therefore key

for public services to apply the Directive correctly right from the start.

Recommendation:

Member States should ensure the proper training of national authority

staff. Member States should also ensure that the Directive’s requirements are sufficiently

defined in legislation and, if needed, supplemented by adequate administrative guidelines

in order for national authorities to have clear instructions on the application of the

Directive.

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REFERENCES

Legislation

Union legislation



Council Directive 90/364/EEC of 28 June 1990 on the right of residence, OJ L 180,

13.7.1990,

26,

available

at:

http://eur-lex.europa.eu/legal-

content/EN/TXT/?uri=uriserv:OJ.L_.1990.180.01.0026.01.ENG&toc=OJ:L:1990:1

80:TOC.

Council Directive 90/365/EEC of 28 June 1990 on the right of residence for

employees and self-employed persons who have ceased their occupational activity,

OJ L 180, 13.7.1990, p. 28, available at:

http://eur-lex.europa.eu/legal-

content/EN/TXT/?uri=uriserv:OJ.L_.1990.180.01.0028.01.ENG&toc=OJ:L:1990:1

80:TOC.

Council Directive 90/366/EEC of 28 June 1990 on the right of residence for

students, OJ L 180, 13.7.1990, p. 30.

Directive 96/71/EC of the European Parliament and of the Council of 16 December

1996 concerning the posting of workers in the framework of the provision of

services, OJ L 18, 21.1.1997, p. 1, available at:

http://eur-lex.europa.eu/legal-

content/EN/TXT/?uri=uriserv:OJ.L_.1990.180.01.0030.01.ENG&toc=OJ:L:1990:1

80:TOC.

Directive 2004/38/EC of the European Parliament and of the Council of 29 April

2004 on the right of citizens of the Union and their family members to move and

reside freely within the territory of the Member States amending Regulation (EEC)

No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC,

73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC

(Text with EEA relevance), OJ L 158, 30.4.2004, p. 77, available at:

http://eur-

lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2004.158.01.0077.01.

ENG&toc=OJ:L:2004:158:TOC.

Directive 2005/36/EC of the European Parliament and of the Council of 7 September

2005 on the recognition of professional qualifications (Text with EEA relevance), OJ

L 255, 30.9.2005, p. 22, available at:

http://eur-lex.europa.eu/legal-

content/EN/TXT/?uri=uriserv:OJ.L_.2005.255.01.0022.01.ENG&toc=OJ:L:2005:2

55:TOC.

Directive 2006/123/EC of the European Parliament and of the Council of 12

December 2006 on services in the internal market, OJ L 376, 27.12.2006, p. 36,

available

at:

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX

:32006L0123.

Directive 2013/55/EU of the European Parliament and of the Council of 20

November 2013 amending Directive 2005/36/EC on the recognition of professional

qualifications; Regulation (EU) No 1024/2012 on administrative cooperation

through the Internal

Market Information System (‘the IMI Regulation’) (Text with

EEA relevance), OJ L 354, 28.12.2013, p. 132, available at:

http://eur-

lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_

.2013.354.01.0132.01.

ENG&toc=OJ:L:2013:354:TOC.

Directive 2014/50/EU of the European Parliament and of the Council of 16 April

2014 on minimum requirements for enhancing worker mobility between Member

States by improving the acquisition and preservation of supplementary pension

rights (Text with EEA relevance), OJ L 128, 30.4.2014, p. 1, available at:

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_

.2014.128.01.0001.01.ENG&toc=OJ:L:2014:128:TOC.



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

Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

Directive 2014/54/EU of the European Parliament and of the Council of 16 April

2014 on measures facilitating the exercise of rights conferred on workers in the

context of freedom of movement for workers (Text with EEA relevance), OJ L 128,

30.4.2014,

available

at:

http://eur-lex.europa.eu/legal-

content/EN/TXT/?uri=uriserv:OJ.L_.2014.128.01.0008.01.ENG&toc=OJ:L:2014:1

28:TOC.

Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of

movement for workers within the Community, OJ L 257/2, 19 October 1968,

available at:

http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:

31968R1612&from=EN.

Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29

April 2004 on the coordination of social security systems, OJ L 166, 30.4.2004, p.1,

available at:

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_

.2004.166.01.0001.01.ENG&toc=OJ:L:2004:166:TOC.

Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16

September 2009 laying down the procedure for implementing Regulation (EC) No

883/2004 on the coordination of social security systems (Text with relevance for

the EEA and for Switzerland), OJ L 284, 30.10.2009, p. 1, available at:

http://eur-

lex.europa.eu/legal-

content/EN/TXT/?uri=uriserv:OJ.L_.2009.284.01.0001.01.ENG&toc=OJ:L:2009:2

84:TOC.

Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5

April 2011 on freedom of movement for workers within the Union (Text with EEA

relevance), OJ L 141, 27.5.2011, p. 1, available at:

http://eur-lex.europa.eu/legal-

content/EN/TXT/?uri=uriserv:OJ.L_.2011.141.01.0001.01.ENG&toc=OJ:L:2011:1

41:TOC.

Decision No 565/2014 of the European Parliament and of the Council of 15 May

2014 introducing a simplified regime for the control of persons at the external

borders based on the unilateral recognition by Bulgaria, Croatia, Cyprus and

Romania of certain documents as equivalent to their national visas for transit

through, or intended stays on, their territories not exceeding 90 days in an 180-

day period and repealing Decisions No 895/2006/EC and No 582/2008/EC, OJ L

http://eur-lex.europa.eu/legal-

157,

27.5.2014,

23,

available

at:

content/EN/TXT/?uri=uriserv%3AOJ.L_.2014.157.01.0023.01.ENG



National legislation

Belgium



Civil

Code

March

1804

http://www.droitbelge.be/codes.asp#civ.

(Code

Civil),

available

at:

Act of 15 December 1980 on access to territory, residence, settlement and removal

of foreigners (Wet

betreffende de de toegang tot het grondgebied, het verblijf, de

vestiging

verwijdering

van

vreemdelingen),

available

at:

http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=nl&la=N&cn=19

80121530&table_name=wet.

Royal Decree of 28 November 2007 ‘Amending Royal Decree of 8 October 1981

concering access to the territory, the residence, the settlement and removal of

foreigners’ (Wijziging

van het koninklijk besluit van 8 oktober 1981 betreffende de

toegang tot het grondgebied, het verblijf, de vestiging en de verwijdering van

vreemdelingen),

Official Journal14 December 2008.



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__________________________________________________________________________________________



Act 8 July 2011 ‘amending the Act of 15 December 1980 on access to the territory,

residence, settlement and removal of foreigners regarding family reunification

requirements’, Government Journal C − 2011/00547.

Act of 14 November 2011 Amending the law of 25 venôse year XI on the notary

office concerning the requirements to be appointed notary’

(Wijziging

van de wet

van 25 ventôse jaar XI op het notarisambt wat de vereisten om tot notaris benoemd

te worden betreft),

Official Journal10 February 2012.

Act of 19 March 2014 ‘amending the Act of 15 December 1980 concerning access

to the territory, residence, settlement and removal of foreigners, Government

Journal C- 14584.



Bulgaria



Law on the Ministry of Internal Affairs, (‘З

’), State Journal No. 53 of 27 June 2014.

еш

Cyprus



Law on Pensions (Law 97(I)97).

France



Act of 15 December 1980 on access to the territory, residence, settlement and

removal of foreigners (‘Loi

sur l'accès au territoire, le séjour, l'établissement et

l'éloignement des étrangers’).

Law 2011-672 on immigration, integration and nationality (Loi

2011-672 relative à

l’immigration, à l’intégration et à la nationalité),

17 June 2011, available at:

https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000024191380

&dateTexte=20160502.

Code on the entry and stay of foreigners and the right to asylum (Code

l’Entrée et du Séjour des Etrangers et du Droit d’Asile)

(CESEDA), available at:

https://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006070158.



Germany



Amending Law of 21 January 2013 (Article

1 G zur Änderung des FreizügG/EU und

weiterer aufenthaltsrechtlicher Vorschriften),

BGBl. I, p. 86.

Amending Law of 2 December 2014 (Article

1 G zur Änderung des FreizügG/EU und

weiterer Vorschriften),

BGBl. I, p. 1922.

Draft law in order to control and restrict immigration and to regulate residence and

integration of EU citizens and foreigners (Law on immigration), BT-Drs. 15/420, p.

103.

General administrative guidelines to the FreizügG/EU of 26 October 2009

(Allgemeine

Verwaltungsvorschriften zum FreizügG/EU),

GMBl. p. 1270. An

updated version has been passed by the government, and is awaiting the consent

of the Bundesrat (Länder chamber), cf. BR-Drs. 535/15, the text is available at:

http://dipbt.bundestag.de/dip21/brd/2015/0535-15.pdf.

Law on General Freedom of Movement of EU Citizens of 30 July 2004 (Gesetz

über

die allgemeine Freizügigkeit von Unionsbürgern),

BGBl. I, p. 1950, 1986, last

modified by Amending Law of 22 December 2015 (Article

6 G zur Änderung des

Zwölften Buches Sozialgesetzbuch und weiterer Vorschriften),

BGBl. I, p. 2557.

‘Cohabitation Act’ (Sambolag),

Government Journal 2003:376.



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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

Ireland



Civil Registration (Amendment) Act 2014, No.34 of 2014,

http://www.irishstatutebook.ie/eli/2014/act/34/enacted/en/pdf.

available

at:

European Communities (Free Movement of Persons) Regulations 2015, S.I. No. 548

2015,

available

at:

http://www.irishstatutebook.ie/eli/

2015/si/548/made/en/pdf.

The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010,

No.24

2010,

available

at:

http://www.irishstatutebook.ie/eli/2010/

act/24/enacted/en/html.



Italy



Legislative Decree 286/1998 Text regulating migration and rules concerning

migrants’ status as amended by Law no. 94 of 2009.

(Testo

unico delle disposizioni

concernenti la disciplina dell'immigrazione e norme sulla condizione dello

straniero),

Official Journaln.191 of 18 August 1998 (Italy).

Consolidated text of provisions governing immigration and the status of aliens,

Legislative Decree 286/1998 (Testo

unico delle disposizioni concernenti la disciplina

dell'immigrazione e norme sulla condizione dello straniero),

Official Journaln.191

of 18 August 1998.

Legislative Decree 6 February 2007, n.30, Implementation of the European

Directive in the rights of citizens of Union and their family members to move and

reside freely within the territory of member states (Attuazione

della direttiva

2004/38/CE relativa al diritto dei cittadini dell’Unione e dei loro familiari di circolare

e di soggiornare liberamente nel territorio degli Stati membri),

Official Journal n.

72 of 27 March 2007.

Legislative Decree of 28 February

2008, n.32 ‘Modifications and integrations of

legislative decree 6 February 2007 n.30’ (Modifiche

e integrazioni al decreto

legislativo 6 febbraio 2007, n. 30, recante attuazione della direttiva 2004/38/CE

relativa al diritto dei cittadini dell'Unione e loro familiari di circolare e di soggiornare

liberamente nel territorio degli Stati membri),

Official Journaln.52 of 1 March 2008.

Decree-Law 89/2011 Urgent measures to complete the transposition of Directive

2004/38 (Decreto

Legge 23 giugno 2011, n. 89

‘Disposizioni urgenti per il

completamento dell'attuazione della direttiva 2004/38/CE sulla libera circolazione

dei cittadini comunitari e per il recepimento della direttiva 2008/115/CE sul

rimpatrio dei cittadini di Paesi terzi irregolari),

Government Journal. 23/06/2011,

n.144.

Law 97/2013 on the ‘Measures for Italy to fulfill the obligations under EU

membership

– European Law 2013’ (Legge

6 agosto 2013, n. 97 ‘Disposizioni per

l'adempimento degli obblighi derivanti dall'appartenenza dell'Italia all'Unione

europea - Legge europea 2013),

Government Journal 20/08/2013, n.194



Latvia



Immigration Law (Imigrācijas

likums),

OP: "LV", 169 (2744), 20.11.2002.,

available at:

http://likumi.lv/doc.php?id=68522.

Law on the Legal Status of Aliens of the Republic of Lithuania No. IX-2206.

Lithuania



Luxembourg



Bill

No.

5908/00

July

2008,

available

at:

http://chd.lu/wps/PA_1_084AIVIMRA06I4327I10000000/FTSByteServingServletI

mpl/?path=/export/exped/sexpdata/ Mag/034/726/073235.pdf.

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Poland



Act of 17 July 2005

–

Law on Higher Education (Ustawa

–

Prawo o szkolnictwie

wyższym),

Journal of Laws of 2005, No.164, item 1365, as amended.

Act of 14 July 2006 on the entry into, residence in and exit from the Republic of

Poland of nationals of the European Union Member States and their family members

(Ustawa

z 14 lipca 2006 roku o wjeździe na terytorium Rzeczypospolitej Polskiej,

pobycie oraz wyjeździe z tego terytorium obywateli państwa członkowskich Unii

Europejskiej i członków

ich rodzin),

Journal of Laws No. 144, item 1043.

Ordinance of the Ministry of the Interior and Administration of 24 August 2006 on

application forms and documents regarding the right of residence on the territory

of the Republic of Poland of citizens of the EU Member States and their family

members (Rozporządzenie

Ministra Spraw Wewnętrznych i Administracji z dnia 24

sierpnia 2006 r. w sprawie wniosków i dokumentów w sprawach prawa pobytu na

terytorium Rzeczypospolitej Polskiej obywateli Unii Europejskiej

i członków ich

rodzin),

Journal of Laws of 2006r, No 154, item. 1105, as amended.



Slovenia



Registered Partnership (2005)

Zakon o registraciji istospolne partnerske skupnosti

(ZRIPS) Ur.l.RS, št. 65/2005.

Spain



Spanish Civil Code (Real

Decreto de 24 de julio de 1889 por el que se publica el

Código Civil),

Spanish Official Journal, n. 206, of 25 July 1889.

Spanish Criminal Code.

Law 7/1985 of 2 April regulating the general rules on the local regime (Ley

7/1985,

de 2 de abril, Reguladora de las Bases del Régimen Local),

Spanish Official Journal

n. 80, 3 April 1985.

Royal Decree 240/2007 on the entry, free movement and residence in Spain of

Union citizens and of citizens within the European Economic Area (Real

Decreto

240/2007, de 16 de febrero, sobre entrada, libre circulación y residencia en España

de ciudadanos de los Estados miembros de la Unión Europea y de otros Estados

parte en el Acuerdo sobre el Espacio Económico Europeo),

Spanish Official Journal,

n. 51 of February 28, 2007.

Royal Decree 987/2015, (Real

Decreto 987/2015, de 30 de octubre, por el que se

modifica el Real Decreto 240/2007, de 16 de febrero, sobre entrada, libre

circulación y residencia en España de ciudadanos de los Estados miembros de la

Unión Europea y de otros Estados parte en el Acuerdo sobre el Espacio Económico

Europeo)

Spanish Official Journal n.269.



Sweden



Aliens

Act

(Utlänningslag),

SFS

2005:716,

available

http://www.riksdagen.se/sv/dokument-lagar/dokument/svensk-

forfattningssamling/utlanningslag-2005716_sfs-2005-716.

at:

United Kingdom



The Civil Partnership Act 2004.

Immigration (European Economic Area) Regulations 2006, SI 2006/1003.

The Immigration (European Economic Area) (Amendment) Regulations 2011, SI

2011/1247.

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis



The ‘Immigration (European Economic Area) (Amendment) (No.3) Regulations

2014’, Government Journal SI 2014/2761.

Case law

European Case law



Case 41/74

Yvonne van Duyn

Home Office

[1974] ECLI:EU:C:1974:133.

Case 67/74

Bonsignore

[1975] ECR 297

Case 48/75

Jean Noël Royer

[1976] ECLI:EU:C:1976:57.

Joined Cases 115/81 and 116/81

Rezguia Adoui

Belgian State and City of Liège

and

Dominique Cornuaille

Belgian State

[ 1982] ECLI:EU:C:1982:183.

Case C-267/83

Aissatou Diatta v Land Berlin

[1985] ECLI:EU:C:1985:67.

Case 316/85

Courcelles v Lebon

[1987] ECR 2811.

Case C-236/85

Commission v Netherlands

[1987] ECR 3989.

Case C-429/85

Commission v Italy

[1988] ECR 843

Case C-339/87

Commission v Netherlands

[1990] E.C.R. I-851

Case C-292/89

The Queen

Immigration Appeal Tribunal, ex parte Gustaff

Desiderius Antonissen

[1991] ECR I-00745.

Case C-131/88

Commission v Germany,

[1991] E.C.R. I-825

Case C-290/94

Commission of the European Communities

Hellenic Republic

[1996] ECLI:EU:C:1996:265.

Case C-212/97

Centros

ECLI:EU:C:1999:126.

Ltd

Erhervs-

Selskabsstyrelsen

[1999]

Cases C-348/96

Calfa

[1999] ECLI:EU:C:1999:6

Case C-110/99

Emsland-Stärke GmbH

Hauptzollamt Hamburg-Jonas

[2000]

ECLI:EU:C:2000:695.

C-268/99

Aldona Malgorzata Jany and Others

v Staatssecretaris van Justitie [2001]

ECLI:EU:C:2001:616.

Case C-413/99

Baumbast and R

Secretary of State for the Home Department

[2002] ECLI:EU:C:2002:493.

Case C-109/01

Secretary of State for the Home Department

Hacene Akrich

[2003] ECLI:EU:C:2003:491.

Case C-200/02

Kunqian Catherine Zhu and Man Lavette Chen

Secretary of State

for the Home Department

[2004] ECLI:EU:C:2004:639.

Case C-138/02

Collins v Secretary of State for Work and Pensions

[2004]

ECLI:EU:C:2004:172.

Case C-464/02

Commission of the European Communities v Kingdom of Denmark

[2005] ECLI:EU:C:2005:546.

Case C-258/04

Office

ECLI:EU:C:2005:559.

national

l’emploi

Ioannis

Ioannidis

[2005]

Case C-408/03

Commission of the European Communities

Kingdom of Belgium

[2006] ECLI:EU:C:2006:192.

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__________________________________________________________________________________________



Case C-503/03

Commission v Spain

[2006] ECLI:EU:C:2006:74.Case C-349/06

Murat Polat

Stadt Rüsselsheim

[2007] ECLI:EU:C:2007:581.

Case C-1/05

Jia v Migrationsverket

[2007] ECR I-1

Case C-158/07

Jacqueline Förster

Hoofddirectie van de Informatie Beheer Groep

[2008] ECLI:EU:C:2008:630.

Case C-33/07

Jipa

[2008] ECLI:EU:C:2008:396.

Joined Cases C-22/08 and C-23/08

Athanasios Vatsouras and Josif Koupatantze

Arbeitsgemeischaft )ARGE= Nürnberg 900

[2009] ECLI:EU:C:2009:344.

Case C-47/08

European

ECLI:EU:C:2011:334.

Commission

Kingdom

Belgium

[2011]

Case C-127/08

Blaise Bageten Metock and Others

Minister for Justice. Equality

and Law Reform

[2008] ECLI:EU:C:2008:449.

Case C-34/09

Ruiz Zambrano

[2011] ECLI:EU:C:2011:124.

Case C-145/09

Land

ECLI:EU:C:2010:708.

Case C-348/09

P.I.

ECLI:EU:C:2012:300.

Baden-Würtemberg

Panagiotis

der

Stadt

Tsakouridis

Remscheid

[2010]

[2012]

Oberbürgermeisterin

Joined Cases C-424/10 and C-425/10

Tomasz Ziolkowski and Barbara Szeja and

Others

Land Berlin

[2011] ECLI:EU:C:2011:866.

Case C-40/11

Yoshikazu Iida

Stadt Ulm

[2012] ECLI:EU:C:2012:691.

Case C-83/11

Secretary of State for the Home Department

Muhammad Sazadur

Rahman and Others

[2012] ECLI:EU:C:2012:519.

Case C-46/12

L.N

Styrelsen for Videreg[ende Uddannelser og Uddannelsesstøtte

[2013] ECLI:EU:C:2013:97.

Case

C-140/12

Pensionsversicherungsanstalt

ECLI:EU:C:2013:565.

Peter

Brey

[2013]

Case C-378/12

Nnamdi Onuekwere

Secretary of State for the Home Department

[2014] ECLI:EU:C:2014:13.

Case C-400/12

[2014] ECLI:EU:C:2014:9.

Case C-423/12

Flora May Reyes

Migrationsverket

[2014] ECLI:EU:C:2014:16.

Case C-244/13

Ewaen Fred Ogieriakhi

Minister for Justice and Equality and Others

[2014] ECLI:EU:C:2014:2068.

Case C-333/13

Elisabeta Dano and Florin Dano

Jobcenter Leipzig

[2014]

ECLI:EU:C:2014:2358.

Case C-456/12

O. v Minister voor Immigratie, Integratie en Asiel and Minister voor

Immigratie, Integratie en Asiel v B

[2014] ECLI:EU:C:2014:135.

Case C-202/13

McCarthy and others

[2014] ECLI:EU:C:2014:2450.

Case C-67/14

Jobcenter Berlin Neuköln

Nazifa Alimanovic and Others

[2015]

ECLI:EU:C:2015:597.

Case C 583/14,

Benjámin Dávid Nagy v. Vas Megyei Rendőr-főkapitányság

[2015]

ECLI:EU:C:2015:737.

Case C-299/14

Vestische Arbeit Jobcenter Kreis Recklinghausen

Jovanna García-

Nieto and Others

[2016] ECLI:EU:C:2016:114.

Case C-515/14

European

ECLI:EU:C:2016:30.

Commission

Republic

Cyprus

[2016]

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

Case C-308/14

Commission v UK

[2016] ECLI:EU:C:2016:436.

Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

Case C-115/15

Secretary of State for the Home Department v NA

[2016]

ECLI:EU:C:2016:487.

National cases



A, B, C v Secretary of State for the Home Department

[2013] EWHC 1272 (Admin);

BF (Portugal) v Secretary of State for the Home Department

[2009] EWCA Civ 923.

Administrative Decision No. 93/2012/KGSG of 23 November 2012.

Ahmad v Secretary of State for the Home Department

[2014] EWCA Civ 988.

Balc v Minister for Justice

[2016] IEHC 47.

Bulale

[2008] EWCA Civ 806 and

VP (Italy) v Secretary of State for the Home

Department

[2010] EWCA Civ 806.

Case Ref. No. A.K.R. 68/2008, dated 23.04.08 (Cyprus).

Complaint No. 159/2008 (Cyprus).

Conseil d’État, avis

(Council of State, opinion) 26 November 2008, available at:

https://www.legifrance.gouv.fr/affichJuriAdmin.do?oldAction=rechJuriAdmin&idTe

xte=CETATEXT000019831940&fastReqId=1501735865&fastPos=3.

Council of State (Raad

van State),

Advice 57.000/4 of 4 February 2015, Official

Journal 20 February 2015.

European Committee of Social Rights,

Internationale Federatie

van Liga’s voor

Mensenrechten/Fédération Internationale des Ligues des Droits de l’Homme (FIDH)

v Belgium,

complaint nr. 62/2010.

FK (Kenya) v Secretary of State for the Home Department

[2010] EWCA Civ 1302.

GW (Netherlands)

[2009] UKAIT 50.

HR (Portugal) v Secretary of State for the Home Department

[2009] EWCA Civ 371.

Judicial Foreigners’ Council decision of 30 September 2013 No 111.076,

available

at: http://www.rvv-cce.be/sites/default/files/arr/A111076.AN.pdf.

Judgment by the Court of Appeal for Western Sweden, Case T-3501-08, judgment

delivered 15.01.2009.

Judgment by the Swedish Court of Appeal, MIG 2011:19, judgment delivered on

16.06.2011.

Judgment by the Voivodeship Administrative Court of Warsaw, Case IV SA/Wa

154/13, judgment delivered 15.03.2013.

Judgment by the Voivodeship Administrative Court of Warsaw, Case IV SA/Wa

2093/12, 22.05.2013.

Judgment of the High Regional Court of Castilla-León (Administrative section), Case

164/2015, delivered on 30.07.2014.

Judgment in

Taddeucci and McCall v. Italy,

of 30 June 2016, application. 51362/09.

Kaczmarek v Secretary of State for Work and Pensions,

n.94, particularly para.5.

Papajorgji

[2012] UKUT 00038 (IAC).

Raducan v Minister for Justice, Equality and Law Reform [2011] IEHC 224, 3 June

2011.

X v Belgium

[2014], Alien Litigation Council No. 117.967.



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Policy Department C: Citizens' Rights and Constitutional Affairs

__________________________________________________________________________________________



X v Belgium

[2014], Alien Litigation Council No. 126.119.

X v Belgium

[2015], Alien Litigation Council No. 128.856;

X v Belgium

[2015], Alien Litigation Council No. 130.247.

XXX v Belgium

[2015], Council of State judgment No. 230.257.

ZH (Afghanistan) v Secretary of State for the Home Department

[2009] EWCA Civ

1060.



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Policy Department C: Citizens' Rights and Constitutional Affairs

__________________________________________________________________________________________



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__________________________________________________________________________________________



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Immigration Office. FPS Interior (Dienst Vreemdelingenzaken. FOD Binnenlandse

Zaken/Office

des

Etrangers.

SPF

Intérieur),

Activities

report

2013

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2013/ Rapport d’Activites 2013),

2014, available at:

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Immigration Office. FPS Interior (Dienst Vreemdelingenzaken. FOD Binnenlandse

Zaken/ Office des Etrangers. SPF Intérieur), Statistical Annual Report 2014

(Statistich

jaarverslag/rapport annuel statistiques 2014),

2015, available at:

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4%20NL_v2.pdf

Juravle, C. et al., A fact findings analysis on the impact on the Member States’

social security systems of the entitlements of non-active intra-EU migrants to

special non-contributory cash benefits and healthcare granted on the basis of

residence, 2013.

Kelly, G., Study on Obstacles to the right of free movement and residence for EU

citizens and their families. Country report for Ireland, 2016.

Les Roms en Europe au 21e siècle: violences, exclusions, précarité: Rapport de

l’Association européenne pour la Défense des droits de l’Homme, coordonné par

Philippe Goossens et Erell Chardon, sur base des recherches initiées par Sabrinna

Sanogo, Association Européenne pour la Défense des Droits de l’Homme, Brussels,

October 2012, available at:

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Discriminations%20et%20droits%20des%20minorit%C3%A9s/RAPPORT%20Rom

s%20AEDH.pdf.

Meurens, N. and Van Caeneghem, J., Study on Obstacles to the right of free

movement and residence for EU citizens and their families. Country report for

Belgium, 2016.

Ministère de l’intérieur (Ministry of Home Affairs), Circular No

I0kk1016329J

(Circulaire

I0kk1016329J),

June

2010,

available

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2010.pdf.

Mullaly S., O’Reagan F., and Bekker H., Report on the Free Movement of Workers

in Ireland in 2012-2013, 2013.

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Rapport annuel 2013),

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__________________________________________________________________________________________



Myria, 2015 Migration in numbers and in rights

(2015 Migratie in cijfers en in

rechten),

2016, available at:

http://www.myria.be/files/Migratie-verslag_2015-

LR.pdf.

Report of the Association for Human Rights of Andalucía, Access of the Roma

citizens to social rights in Córdoba(Informe

de la Asociación Pro Derechos Humanos

de Andalucía: Acceso de la comunidad roma a los derechos sociales en Córdoba),

2015, available at:

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def.pdf.

Roicka, P., Study on Obstacles to the right of free movement and residence for EU

citizens and their families. Country report for Poland, 2016.

Spanish Ombudsman, Annual Report 2010 (Informe

Anual 2010).

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Anual 2012).

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Migratie), General policy note on Asylum and Migration (Algemene

beleidsnota Asiel

en Migratie),

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EMN, Misuse of the Right to Family Reunification, June 2012, available at:

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do/networks/european_migration_network/reports/docs/emn-studies/family-

reunification/0a_emn_misuse_family_reunification_study_final_june_2012_en.pdf

State Secretary for Asylum and Migration (De Staatssecretaris voor Asiel en

Migratie), Withdrawal of residence rights of EU citizens in Belgium: evolution from

2008 to 2013 (Intrekkingen

verblijfsrecht van EU-onderdanen in België: de evolutie

van

2008

tot

met

2013),

Brussels,

2014,

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at:

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24-243893.pdf.

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2013, available at:

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NASC-ROMA-REPORT.pdf.

Unia,

Annual

Report

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2012

(Jaarverslag

available

at:



Unia,

Annual

Report

Discrimination/Diversity

2013

(Jaarrapport

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2014,

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2012 (Raport o sytuacji społeczności romaskiej w Polsce 2012), March 2012,

available at:

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

Books



Associazione per gli Studi Giuridici sull’Immigrazione (ASGI), G. Perin e P. Bonetti,

‘Allontanamento dei cittadini dell’Unione Europea e dei loro familiari e tutele

giurisdizionali, Scheda pratica, 23 March 2012.

Brinkmann, G., in Huber, B. (ed.) Aufenthaltsgesetz (1st edition 2010), § 4 para.

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

Defender of Rights, Description des situations d’expulsions de campements pour

lesquels la circulaire n’a pas été respectée ou ne l’a été que partiellement

(Description of expulsion from camps for which the circular was not, or was only

partially,

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_evacuation_campement_illicite_annexes.pdf.

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séjour et éloignement. Ce que change la loi du 16 juin 2011),

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you work in another Member State (Sorry, this access route is closed. Vos droits et

responsibilité lorsque vous vivez et travaillez dans un autre État membre),

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com_joomdoc&task=document.download&path=newsletters-2016%2F116-

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(2nd edition 2016) § 4 para.

Tewocht, H., in Kluth, W., Heusch, A. (eds)

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§ 4 FreizügG/EU.



Articles



Blázquez Peinado, M.D., ‘La transposición en Derecho español de la normativa

comunitaria sobre libre circulación y residencia de ciudadanos de la Unión y

miembros de su familia: el Real Decreto 240/2007 de 16 de febrero’, Revista de

Derecho Comunitario Europeo, 2007, 27.

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Christensen,

N., ‘Union Citizenship: Development, Impact and Challenges–

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Vol. 2.

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Journal of Child Poverty

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Raschka, J., ‘Anspruch von Unionsbürgern auf Zugang zu Sozialleistungen nach der

jüngsten Rechtsprechung des EuGH’ ZAR 2015, 331, 333 f.

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Policy Department C: Citizens' Rights and Constitutional Affairs

__________________________________________________________________________________________



Schönberger, C., Thym, D., ‘National Report on Germany’ in Neergaard, U.,

Jacqueson, C., Holst-Christensen, N. (eds) Union Citizenship

–

Congress

publications of the XXVI FIDE Congress in Copenhagen Vol. 2, 569.

Shaw, J. et al, ‘Getting to grips with EU citizenship: Understanding the friction

between UK immigration law and EU free movement law’, Edinburgh Law School

Citizenship Studies, 2013, 7.

Thym, D., ‘Die Rückkehr des "Marktbürgers" –

Zum Ausschluss nichterwerbsfähiger

EU-Bürger von Hartz IV-Leistungen’,

NJW 2015, 130, 132.

Thym, D., Statement on draft law amending FreizügG/EU and other provisions of

22 September 2014, BT-Ausschussdrucksache 18(4)164 F.

Welte, H.-P.,

‘Rechtsverlust-

oder Nichtbestehensfeststellung nach erfolgloser

Arbeitssuche’ ZAR 2014, 190, 193.



Media articles



Association for Integration and Migration, Aměstanání (Employment),

available at:

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rodinni-prislusnici/zamestnani.Bailleux,

A., Carlier, J.-Y., Dumont, D., Martens, P.

and Nevens, J.E. (La Libre Belgique), Free movement of EU citizens: misuse by

Belgium of its social databanks (Libre

circulation des citoyens européens: du

mauvais usage par la Belgique de ses banques de données sociales),

5 February

2015, available at:

http://www.lalibre.be/debats/opinions/libre-circulation-des-

citoyens-europeens-du-mauvais-usage-par-la-belgique-de-ses-banques-de-

donnees-sociales-54d36df135701001a18fe98b.

Brown, C. (Inside Housing), Police crack down on Romanian rough sleepers, 22 July

2013, available at:

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Carabott, S. (Times of Malta), Expats put adverts on ‘discriminatory’ buses, 19

http://www.timesofmalta.com/articles/view/

August

2013,

available

at:

20130819/local/Expats-put-adverts-on-discriminatory-buses.482392.

CIRE, ‘The right to residence of European citizens in Belgium (Le droit de séjour

des

citoyens

européens

Belgique)’,

April

2014,

available

at:

http://www.cire.be/analyses/1039-le-droit-de-sejour-des-citoyens-europeens-en-

belgique/file.Crosspoint

Migration-Integration, Council of Foreign Disputes

suspends expulsion order due to violation of the right to be heard (RvV

schorst

uitwijzingsbevel wegens schending hoorrecht’,

28 October 2014, available at:

http://www.kruispuntmi.be/nieuws/rvv-schorst-uitwijzingsbevel-wegens-

schending-hoorrecht.

Crosspoint Migration-Integration,

‘Foreign Affairs Office needs

to hear concerned

persons before ending right to residence’ (DVZ

moet betrokkene horen alvorens

verblijfsrecht

beëindigen),

March

2015,

available

at:

http://www.kruispuntmi.be/nieuws/dvz-moet-betrokkene-horen-alvorens-

verblijfsrecht-te-beeindigen.

Crosspoint Migration-Integration,

What is a legal cohabitation of convenience’ (Wat

een

schijnwettelijke

samenwoning?),

available

at:

http://www.kruispuntmi.be/thema/gezinshereniging/je-wil-wettelijk-

samenwonen-in-belgie/schijnwettelijke-samenwoning/wat-is-een-

schijnwettelijke-samenwoning.

De Standaard, Number of marriages of convenience

schijnhuwelijken

valt

terug),

August

2014,

http://www.standaard.be/cnt/dmf20140805_01204880

declines (Aantal

available

at:

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

Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

Düvell, F., ‘Romanian and Bulgarian migration to Britain: facts behind the fear’, 28

March 2013, available at: https://www.opendemocracy.net/ourkingdom/franck-

d%C3%BCvell/romanian-and-bulgarian-migration-to-britain-facts-behind-fear.

European

Commission,

Double

taxation,

available

at:

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en.htm.

European Commission, ‘Infringements: Frequently Asked question’,

Base de

donnés des communiqués de presse, Strasbourg 17 January 2012.

European Commission, February infringements package: main decisions, 21

February 2013, available at:

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122_en.htm.

European Commission, Free movement of workers: Commission improves the

application of worker's rights

–

frequently asked questions, 26 April 2013, available

at:

http://europa.eu/rapid/press-release_MEMO-13-384_nl.htm.

European Commission, ‘Free movement of people:five actions to benefit citizens,

growth and employment in the EU’, Press Release, 25 November 2013, available

at:

http://europa.eu/rapid/press-release_IP-13-1151_en.htm.

European Commission website, Frequently Asked Questions on Passenger car

taxation,

available

at:

http://ec.europa.eu/taxation_customs/

common/faq/taxation/faq_cartax_en.htm.

European Commission, EU Social Security Coordination,

http://ec.europa.eu/social/main.jsp?langId=en&catId=849.

available

at;



European Commission, Impact of mobile EU citizens on national social security

systems, 14 October 2013, available at:

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langId=en&catId=89&newsId=1980.

Expertise centre European Law - Ministry of Foreign Affairs of the Kingdom of the

Netherlands, Supreme Court poses preliminary questions on the free movement

within the Netherlands (Hoge

Raad stelt prejudiciële vragen over vrij verkeer

binnen

Nederland),

November

2010,

available

at:

http://www.minbuza.nl/ecer/nieuws/2010/11/hoge-raad-stelt-prejudiciele-

vragen-over-vrij-verkeer-binnen-nederland.html.

Février, R. (L’OBS), Bulgarian and Romanian workers, what will change on 1

January 2014? (Travailleurs

bulgares et roumains: qu’est-ce

qui change le 1er

janvier?),

December

2013,

available

at:

http://tempsreel.nouvelobs.com/monde/20131230.OBS0941/travailleurs-

bulgares-et-roumains-qu-est-ce-qui-change-le-1er-janvier.html.

Fondation Robert Schuman, ‘The Free Movement of People in the European

Union:principle, stakes and challenges’, Europe Issue No 312, 12 May

2014,

available at:

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movement-of-people-in-the-european-union-principle-stakes-and-challenges.

Francis, N., ‘The UK is much better than Romania. All my mates will come in 2014’,

November

2012,

available

at:

https://www.thesun.co.uk/archives/

news/1036548/the-uk-is-much-better-than-romania-all-my-mates-will-come-in-

2014/.

GISTI, End of the transitional period for Romanians and Bulgarians in France: what

changes? A briefing note from Gisti and Romeurope (Fin

de la période transitoire

pour les Roumains et les Bulgares en France: quels changements? Une note

d’information Gisti et Romeurope),

30 December 2013, available at :

http://www.gisti.org/spip.php?article3377.

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__________________________________________________________________________________________



Het Laatste Nieuws, Mayor chases gypsies away with loud music (Burgemeester

verjaagt

Roma

met

luide

muziek),

July

2014,

available

at:

http://www.hln.be/hln/nl/957/Binnenland/article/detail/1945374/2014/07/16/Bur

gemeester-verjaagt-zigeuners-met-luide-muziek.dhtml.

Hope, C., ‘Britain powerless to stop tens of thousands of Bulgarians and Romanians

moving to UK next year, Theresa May admits’, 11 November 2012, available at:

http://www.telegraph.co.uk/news/uknews/immigration/9670141/Britain-

powerless-to-stop-tens-of-thousands-of-Bulgarians-and-Romanians-moving-to-

UK-next-year-Theresa-May-admits.html.

Hyresvärd i Filipstad, ANM 2011/981, Diskrimineringsombudsmannen website,

available at:

http://www.do.se/lag-och- ratt/diskrimineringsarenden/hyresvard-

filipstad/.Knack,

‘Fewer

marriages

convenience

annulled’

(Minder

schijnhuwelijken

ontbonden),

August

2014,

available

at:

http://www.knack.be/nieuws/minder-schijnhuwelijken-ontbonden/article-normal-

269297.html.

Inco, ABVV-FGTB, EU Rights Clinic en BXL Laïque, Letter on the expulsions of EU

citizens from Belgium (Lettre

concernant les expulsions de citoyens européens de

Belgique),

4 November 2014, available at:

http://www.osservatorioinca.org/

section/image/attach/Lettre_CE_2014_11_04.pdf.

Ministry of Interior of Republic of Latvia, Entry of Citizens of the Union and their

http://www.pmlp.gov.lv/en/home/

Family

Members,

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services/registration-cards.html.

Neilen, C. (The Guardian), Plans to Deport Eastern European Rough Sleepers

Comes

Under

Fire,

July

2010,

available

at:

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sleepers-deported.

Newsweek Polska, Why can 4-year old Maria not obtain a birth certificate?

(Dlaczego

4-letnia

Maria nie może otrzymać aktu urodzenia?),

19 June 2015,

available at:

http://polska.newsweek.pl/dziecko-lesbijek-nie-moze-otrzymac-w-

polsce-aktu-urodzenia,artykuly,365352,1.htmlNowosielska

K. (Rzeczpospolita),

‘People living in partnerships do not benefit from the healthcare insurance of their

partners’ (Osoby żyjące w związkach partnerskich nie skorzystają

z ubezpieczenia

zdrowotnego

swojego

partnera),

2013,

available

at:

http://www.rp.pl/artykul/1071947-Osoby-zyjace-w-zwiazkach-partnerskich-nie-

skorzystaja-z-ubezpieczenia- zdrowotnego-swojego-partnera.html

Pimiä, K. (Non-

Discrimination Ombudsman), Administrative Court confirmed that S-Pankki had

discriminatory identification principles (18.8.2015),

Hallinto-oikeus toteso S-

Pankilla olleen syrjivät tunnistusperiaatteet (päivitetty 18.8.2015),

18 August

2015,

available

at:

http://www.syrjinta.fi/web/fi/-/hallinto-oikeus-totesi-s-

pankilla-olleen-syrjivat-tunnistusperiaatteet.

Sheeter L. (BBC News), Latvia cements gay marriage ban, 15 December 2005,

available at:

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Unia, After the wall, now also ditches against caravan dwellers (Na

de muur, nu

ook geulen tegen woonwagenbewoners),

22 June 2015, available at:

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YLE Uutiset, Romanian Roma are wanted for jobs

–

not for begging (Romanian

romanit halutaan töihin

–

ei kerjäämään),

2 March 2011, available at:

http://yle.fi/uutiset/romanian_romanit_halutaan_toihin__ei_kerjaamaan/509059

Your Europe Advice Service, Admission and entry to university, 24 May 2016,

available

at:

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admission-entry-conditions/index_en.htm.

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Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis

Your Europe Advice Quarterly Reports



Your Europe Advice, Quarterly Feedback Report No. 1, Quarter 2/2012 (April-June).

Your Europe Advice, Quarterly Feedback Report No. 2, Quarter 3/2012 (July-

September).

Your Europe Advice, Quarterly Feedback Report No. 3, Quarter 1/2013 (January-

March).

Your Europe Advice, Quarterly Feedback Report No. 4, Quarter 2/2013 (April-June).

Your Europe Advice, Quarterly Feedback Report No. 5, Quarter 3/2013 (July-

September).

Your Europe Advice, Quarterly Feedback Report No. 6, Quarter 4/2013 (October-

December).

Your Europe Advice, Quarterly Feedback Report No. 7, Quarter 1/2014, (January-

March).

Your Europe Advice, Quarterly Feedback Report No. 8, Quarter 2/2014 (April-June).

Your Europe Advice, Quarterly Feedback Report No. 9, Quarter 3/2014 (July-

September).

Your Europe Advice, Quarterly Feedback Report No. 10, Quarter 4/2014 (October-

December)

Your Europe Advice, Quarterly Feedback Report No. 11, Quarter 1/2015 (January-

March).

Your Europe Advice, Quarterly Feedback Report No. 12, Quarter 2/2015 (April-

June).

Your Europe Advice, Quarterly Feedback Report No. 13, Quarter 3/2015 (July-

September).

Your Europe Advice, Quarter Feedback Report No. 14, Quarter 4/2015 (October-

December).

Petitions to the European Parliament



Petition

No 0259/2012 to the European Parliament.

No 1038/2012 to the European Parliament.

No 1541/2012 to the European Parliament.

No 1908/2012 to the European Parliament.

No 1391/2013 to the European Parliament.

No 2168/2013 to the European Parliament.

No 2545/2013 to the European Parliament.

No 0237/2014 to the European Parliament.

No 1623/2014 to the European Parliament.

No 1736/2014 to the European Parliament.

No. 1819/2014 to the European Parliament.

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Policy Department C: Citizens' Rights and Constitutional Affairs

__________________________________________________________________________________________

Others



Becker, H., Immigrants and the Law in Ireland, address to the Burren Law School,

4 June 2013.

EMN, Ad-hoc query on requirements of marriage and suspected numbers of

marriages

convenience,

2013,

available

at:

http://www.emnbelgium.be/sites/default/files/publications/uk_emn_ahq_require

ments_for_marriage_and_suspected_marriages_of_convenience_wider_3_0.pdf.E

uropean Parliament,

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-

//EP//TEXT+REPORT+A6-2009-0186+0+DOC+XML+V0//EN.

Key Issues in Free Movement in Ireland-Seminar-Law Society of Ireland- 5

November 2010 Record of Proceedings, 5 November 2010.

Touquet, H. and Wets, J., ‘Context, motive and opportunities of Central and Eastern

European immigration: exploratory research with a focus on Roma’ (2013).

Welte, H.-P.,

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