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EUROPEAN UNION

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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RESIDENCY PERMITS

The difficulties of moving to Sweden as a non-EU spouse… even if you marry a Swedish princess

Sweden's Princess Madeleine and her British-American husband, Chris O'Neill, are returning to Sweden after living in Florida since 2018. But how can Chris move to Sweden as a non-EU citizen?

The difficulties of moving to Sweden as a non-EU spouse... even if you marry a Swedish princess

Princess Madeleine and Chris O’Neill are moving back to Sweden with their three children in August. We hope they like it here.

Unfortunately for O’Neill, some things have changed since he left Sweden in 2015. Brits are no longer EU citizens, which means he’ll have to apply for a residence permit like all the other non-EU citizens planning a move to Sweden.

Unlike before, when O’Neill could live in Sweden as a self-sufficient EU citizen with comprehensive health insurance, there’s no such option for non-EU citizens, meaning he’ll have to fulfil the criteria for a non-EU residence permit (uppehållstillstånd), apply from abroad, and potentially wait for his permit to be processed before he can enter Sweden.

With waiting times well over a year for both family reunification permits and work permits, planning a move to Sweden in just a few months might be a bit… optimistic.

What options does Chris O’Neill have?

The most obvious route for O’Neill to take is a residence permit for moving to someone in Sweden, sometimes also referred to as a sambo permit.

O’Neill qualifies for this, as he is married to a Swedish citizen. His wife must also be able to support him and his three children. According to the Migration Agency, this maintenance requirement is fulfilled if the family member in Sweden has enough money to pay for their home, as well as living costs for the family.

The Migration Agency states more specifically that the Swedish family member must earn 9,445 kronor per month to support a couple living together, plus 3,055 kronor per month for each child under the age of six and 3,667 kronor for each child aged between 7 and 10 years old.

The couple’s children are aged 5, 7 and 9, meaning that Madeleine will need earnings of at least 19,834 kronor a month (after tax) on top of housing costs in order to fulfil this requirement. She can also fulfil this requirement by having enough savings to support the entire family for at least two years – so a mere 476,016 kronor, plus whatever their housing costs will be for the two-year period.

Let’s assume that she can cover the family’s living costs – she’s a member of the Swedish royal family, after all. 

Next, Madeleine needs to have a home “of a suitable size and standard” for the family to live in together.

The Swedish Migration Agency states that a family consisting of two adults needs to have an apartment with a minimum of one room and a kitchen or kitchenette, with more rooms necessary if the family has children. Two children can share one room, it states, meaning that O’Neill and Madeleine need a room with at least three rooms, one kitchen and one bathroom for them and their three children.

The family’s seven-room apartment by Nybroplan in Stockholm is definitely “of a suitable size”, and after a six million kronor renovation a few years ago we can assume that the standard is up to scratch.

O’Neill will also have to provide proof of identity with a valid passport. He’s a citizen of the US and the UK, so here he can choose whichever passport he prefers.

Great, so Madeleine and Chris O’Neill easily fulfil the requirements. 

What are the next steps? 

Firstly, as Madeleine is a Swedish citizen planning on moving to Sweden with a family member who does not hold EU citizenship, the couple will need to prove that they are planning on moving to Sweden “within the near future”. They can do this by providing a housing contract or a job offer, or presumably a press statement from the Swedish royal family stating their plans to move over in August.

O’Neill can’t move to Sweden until his application has been processed, but he is allowed to visit Sweden for up to 90 days at a time, and, as a citizen of a visa-free country, he doesn’t need a visa to do so.

He may also need to visit a Swedish embassy abroad in order to undertake an interview before his application can be processed.

With the family planning on enrolling their children in Swedish schools this autumn, it looks like Chris and Madeleine – like many couples consisting of a Swede and a non-EU citizen – will have to live apart, with Chris separated from his children for months at a time.

In that time, he won’t be eligible for a Swedish personal number, Swedish healthcare, or any other benefits such as sick leave or VAB.

He’ll also have trouble getting BankID or opening a Swedish bank account (unless he already has one from last time they lived in Sweden), and may struggle to get a gym membership, phone contract, or even a membership card at the local ICA (do husbands of princesses do their own food shopping?)

As a British citizen applying for a residence permit for the first time to move to someone in Sweden for the first time who he has been living together with outside Sweden for at least two years, O’Neill can expect to wait around 15 months. Now, that figure isn’t a guide – technically, only 75 percent of recently closed cases matching those criteria were concluded within 15 months – so he could have a much longer or much shorter wait before he’s reunited with his family.

You may be thinking ‘but he’s a successful businessman, can’t he just apply as a self-employed person’? Well, yes, if he wants, but then he’ll be waiting even longer – 75 percent of recently closed cases for permits as a self-employed person got an answer within 29 months.

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