Non-EU family members of EU citizens can obtain long-term residence, court rules

The Court of Justice of the European Union has ruled that non-EU citizens who have residence rights in an EU country as family members of an EU national can acquire EU long-term residence.

Non-EU family members of EU citizens can obtain long-term residence, court rules
Non-EU family members of EU citizens can obtain EU long-term residence (Photo by Kenzo TRIBOUILLARD / AFP)

EU long-term residence is a legal status that non-EU citizens can obtain if they have lived continuously in an EU country for at least five years, have not been away for more than 6 consecutive months and 10 months over the entire period (although the rules are different for Britons covered by the Withdrawal Agreement), and can prove to have “stable and regular economic resources” and health insurance. Applicants can also be required to meet “integration conditions”, such as knowing the language.

Long-term residence status grants equal treatment to EU nationals in areas such as employment, self-employment or education, as well as the possibility to move to other EU countries under certain conditions. 

But the procedure to get this status is not always straight-forward.

In this case, a Ghanian national who had a residence permit in the Netherlands because of a ‘relationship of dependency’ with her son, a Dutch citizen, saw their application for EU long-term residence refused.

The Dutch authorities argued that the residence right of a family member of an EU citizen is ‘temporary in nature’ and therefore excluded from the EU directive on long-term residence.

The applicant, however, appealed the decision and the District Court of The Hague referred the case to the EU Court of Justice for an interpretation of the rules.

On Wednesday the EU Court clarified that non-EU family members of EU citizens who live in the EU can indeed acquire EU long-term residence.

The EU long-term residence directive excludes specifically third-country nationals who reside in the EU temporarily, such as posted workers, seasonal workers or au pairs, or those with a residence permit that “has been formally limited”.

A family member of an EU citizens does not fall into this group, the Court said, as “such a relationship of dependency is not, in principle, intended to be of short duration.”

In addition, EU judges argued, the purpose of the EU long-term residence directive is to promote the integration of third country nationals who are settled in the European Union.

It is now for the Dutch court to conclude the case on the basis of the Court’s decision, which will apply also to the other EU member states.

The European Commission proposed in April to simplify the rules on EU long-term residence, especially when it comes to obtaining the status, moving to other EU countries and the rights of family members. 

These new measures are undergoing the legislative procedure have to be approved by the European Parliament and the EU Council. These rules also concern Britons living in the EU as family members of EU citizens.

Member comments

  1. So does this mean that an Article 50 card holder who is married to an EU National could acquire EU long-term residence status IN ADDITION to their Withdrawal Agreement rights in order to gain free movement in the EU and hence live and work in different EU countries?

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EU court ruling ‘could stop Denmark turning away some foreigners at border’

A new EU court ruling could stop Denmark turning away some foreigners at the German and Swedish borders, even if they have no right to be in Denmark.

EU court ruling 'could stop Denmark turning away some foreigners at border'

The ruling, made on Thursday by the Court of Justice of European Union, means that so long as a non-EU citizen has legal residence in at least one EU country, they cannot be turned away at Denmark’s border with Germany or Sweden, even if they have no right of residency in Denmark, Danish newswire Ritzau reports.

The court found that such foreigners are protected by ‘Returns’ Directive, which means that any non-EU citizen illegally staying in an EU country cannot be turned back at a border with another EU country without a formal return decision, giving them time to at first leave the country voluntarily. 

“That also applies where… the person concerned has been apprehended at a border crossing point on the territory of the Member State concerned,” the judgement reads. “Indeed, a person may have entered the territory of a Member State even before crossing a border crossing point.” 

Jens Vedsted-Hansen, a law professor at Aarhus University, told The Local that the judgement was about the procedure for turning away a non-EU citizen rather than about member state’s right to deny them the right to stay.   

“First of all, this judgment is not about the right to refuse entry,” he wrote. “This right in and of itself is not up for discussion in this case, but more the way in which such a refusal can be enforced. What the court is saying here is that in the case of refusal of entry at internal borders, the procedure laid down in the Returns Directive must be respected, as the possibility of exemption from this procedure can only apply in certain cases at external border controls”.   

Anders Vistisen, an MEP with the far-right Danish People’s Party said to news wire Ritzau that the ruling means that any foreigner who has, say, a visa to Poland, can no longer be turned away at the German border if they are stopped by Danish border police as a result of the current temporary border controls. 

Vedsted-Hansen added that although Denmark has an opt-out from the Schengen Borders Code or the EU’s Returns Directive, it had implemented these EU directives into national law and was as a result indirectly committed to complying with them. 

“This means we are indirectly bound by the interpretation determined by the EU Court of Justice,” he said. 

The court case was brought by several French rights groups, including Association Avocats pour la défense des droits des étrangers (ADDE). The groups wanted to test the legality of an order amending the Code governing the entry and residence of foreign nationals and the right of asylum (Ceseda) before the French Council of State.