As part of my very popular series of legal FAQ, I now address a subject which can often help to resolve immigration cases which seem hopeless under national immigration law: the right to freedom of movement within the EU.
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1. What is the right to freedom of movement within the European Union?
Broadly speaking, the citizen of any EU member state can move to any other EU member state without a visa, a residence permit or any other formality being required. It’s as easy, and in some cases easier than, a move within a country’s borders.
2. Is this what people call Schengen?
No, these are two completely different things. Schengen is a system for the abolishment of physical borders and for a single tourist visa for 26 countries. The UK, Ireland, Bulgaria, Romania, Croatia, Cyprus are not part of Schengen (but with the exception of the UK and Ireland will be sooner or later) but are bound by the EU freedom of movement rules. Even more confusingly, some countries which are not in the EU are part of Schengen and the freedom of movement rules also extend to them (Norway, Liechtenstein, Iceland). The situation in Switzerland is even more complicated, but please ask a Swiss lawyer about that.
3. Are you allowed to work or study in any other EU country?
Yes, freedom of movement not only means that you can travel, but you can settle in any EU country. You can take up employment, you can study, you can set up a business, you can retire. You can pretty much do anything that you can do in your home country, with exceptions on some government jobs which may be restricted to nationals of that country and on voting in national elections.
4. Is there a limit as to how long you can stay in another EU country?
You are always allowed up to three months in any EU country without any further conditions. For stays beyond three months, you must be exercising one of your EU Treaty rights, i.e. being in employment, running a business, studying or being self-sufficient. This is a gross simplification, but as long as you don’t apply for welfare, you are safe. In reality, the three-month rule is not enforced, also because you could leave the country and come back the next day or you can always say that you just arrived yesterday because your passport doesn’t get stamped if you cross the border as an EU citizen. – From my personal experience, nobody cares. I have been living in six different EU countries and never had any kind of registration, paperwork, nothing. It was never a problem.
5. How does this help me as a non-EU citizen?
Now we’re getting to the interesting part! EC directive 2004/38 extends the freedom of movement rights to family members of EU citizens. That means that if you are Afghan/Brazilian/Chinese or anything else and your spouse is an EU citizen, then you can live with them in the EU if they are exercising their freedom of movement rights, i.e. if they are not living in their country of citizenship.
6. That’s great! How do I get this EU freedom of movement visa?
It gets even better: you don’t need any visa. Freedom of movement is a right which you have by virtue of law and it does not depend on any EU member state issuing a visa or a residence permit. When travelling or crossing borders together with your EU spouse, you just need to bring your marriage certificate and you’ll be able to enter the EU or cross borders within the EU.
If you want, you can however apply for a residence card which will show that you have the right to reside in that particular country. This is NO legal requirement and you have the right to stay BEFORE you apply or obtain such a residence card. The practical use of the card is for employers (who often don’t understand immigration law) and to show to border guards (dito) and airline staff (dito).
7. Wait. I heard that some countries have restrictions for the immigration of spouses.
Yes, Germany for example requires a minimum knowledge of German, the UK requires a certain income level. But these national rules do NOT apply to other EU citizens and their spouses because national law cannot overrule EU law. This leads to the paradoxical situation that it is easier to migrate to an EU country if you are married to the citizen of another country than to a citizen of that country. For example: If you are a non-EU citizen and you get married to a German and want to move to Germany, you will need to prove minimum language skills in German and you will need a visa; but if you marry a French person who lives in Germany, you can move to Germany without a visa and without any language skills because you fall under EU law.
8. I have the feeling that you were about to suggest a trick.
Of course! Thanks to the freedom of movement in the EU and the fact that there are no more border controls between most countries, you can bypass national immigration laws. Let’s say we have a German guy who gets married to a woman from Bangladesh, but she cannot get a German visa. Easy: the German husband moves 5 km across the border to France, Poland or any other neighbouring EU country, and the wife can join him right away. Officially they will live in France, Poland etc. but as there are no border controls, nobody will know how much time they spend where.
9. You keep talking about spouses, but does this also relate to other family members?
Yes, it does. Other groups of family members who may benefit from the freedom of movement in the EU are: same-sex partners, unmarried long-term partners, children, dependent parents, including dependent children and parents of the non-EU partner. You may notice that this is the perfect loophole for circumventing strict national laws against family reunion.
10. And all these rules are the same in every EU country, so it doesn’t matter if my spouse is from Germany or from Croatia?
No. That would be too simple. EC Directive 2004/38 needs to be transposed into national law and this leads to slightly different results in each of the 28 EU member states. A particular problem arises for same-sex partners because some EU member states haven’t recognized such partnerships (yet).
Usually, the country of citizenship of your spouse or sponsor is not as relevant as the country in which you wish to settle. For Croatian citizens however (and thus for non-EU family members of Croatian citizens), some countries (for example Germany) have opted to use a phasing-in which limits access to the labour market before July 2015. There are however no limits on moving as a student or on setting up a business or being self-employed, so that these limits can be easily circumvented.
Because this is a very complicated area of the law, I ask you to restrict your questions in the comment section to general questions which might be of interest to others. I won’t be able to solve specific, complicated cases without looking at the details and not without charging. Please feel free to contact me and be as precise as possible in the description of your case. I charge 400 EUR for a detailed consultation. And remember (I have to mention this explicitly because it happens all the time), I cannot answer questions if you write me, saying “I am an EU citizen and my wife is a non-EU citizen”. I need to know exactly all types of citizenship involved.