Help Print this page 
Title and reference
Right of Union citizens and their family members to move and reside freely within the territory of the Member States

Summaries of EU legislation: direct access to the main summaries page.
Multilingual display
Text

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

A European Union (EU) Directive on the right of EU citizens to move and reside freely within EU countries brings together the piecemeal measures found in the complex body of legislation that had previously governed this matter. The measures are designed, among other things, to encourage citizens to exercise their right to move and reside freely within EU countries, to cut back administrative formalities to the bare essentials, to provide a better definition of the status of family members, to limit the scope for refusing entry or terminating the right of residence and to introduce a new right of permanent residence.

ACT

European Parliament and Council 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 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.

SUMMARY

The Directive merges into a single instrument all the legislation on the right of entry and residence for EU citizens, consisting of two regulations and nine directives. This simplification aims to make it easier for citizens to exercise their rights. The Directive also sets out to reduce to the bare minimum the formalities which EU citizens and their families must complete in order to exercise their right of residence.

General provisions

This proposal is designed to regulate:

  • the conditions under which Union citizens and their family members, irrespective of their nationality, exercise their right to move and reside freely within the EU countries;
  • the right of permanent residence;
  • restrictions on the aforementioned rights on grounds of public policy, public security or public health.

Right of entry and right of residence for up to 3 months

All EU citizens have the right to enter another EU country by virtue of having an identity card or valid passport. Under no circumstances can an entry or exit visa be required. Where the citizens concerned do not have travel documents, the host country must afford them every reasonable opportunity in obtaining the necessary documents or having them sent.

Family members who do not have the nationality of an EU country enjoy the same rights as the citizen whom they accompany or join. They may be subject to a short-stay visa requirement under Regulation (EC) No 539/2001. Residence permits issued under this directive will be deemed equivalent to short-stay visas.

For stays of under 3 months, the only requirement on EU citizens and their family members who join or accompany them, is that they possess a valid identity document or passport. The host country may require the persons concerned to register their presence in the country within a reasonable and non-discriminatory period of time.

Right of residence for more than 3 months

The right of residence for more than 3 months remains subject to certain conditions. Applicants must:

  • be workers or self-employed persons in the host country;
  • or have sufficient resources for themselves and their family members, to ensure that they do not become a burden on the social assistance system of the host country during their stay and have sickness insurance. EU countries may not specify a minimum amount which they deem sufficient, but they must take account of personal circumstances;
  • or be following a course of study, including vocational training, as a student and have sufficient resources and sickness insurance to ensure that they do not become a burden on the social assistance system of the host country during their stay;
  • or be a family member accompanying or joining an EU citizen who falls into one of the above categories.

Residence permits are abolished for EU citizens. However, EU countries may require them to register with the competent authorities within a period of not less than 3 months as from the date of arrival. A registration certificate will be issued immediately on presentation of:

  • an identity card or valid passport;
  • proof that the above conditions are complied with (see Article 8 of the Directive on the proof required).

Family members of EU citizens who are not nationals of an EU country must apply for a residence card for family members of EU citizens (for conditions for the issue of residence cards, see Art. 10). These cards are valid for 5 years from their date of issue.

Retention of the right of residence

In general, EU citizens retain their right of residence in the first three months as long as they do not become an unreasonable burden on the social assistance system of the host Member State. After three months they must continue to meet the conditions for their stay (Article 7) but Member States may not systematically check if these conditions are still met. Recourse to the social assistance system may lead to expulsion measures, but not as an automatic consequence.

Under certain conditions, the death of the EU citizen, his or her departure from the host country, divorce, annulment of marriage or termination of partnership does not affect the right of family members who are not nationals of an EU country to continue residing in the country in question. Workers or self-employed people retain their status if, for example, they are temporarily unable to work as a result of illness or accident or are in duly recorded involuntary unemployment after having been employed for more than 1 year and registered as job-seekers (for more examples, see Art. 7(3)).

Right of permanent residence

EU citizens and their family members acquire the right of permanent residence in the host country after a 5-year period of uninterrupted legal residence, provided that an expulsion measure has not been enforced against them. This right of permanent residence is no longer subject to any conditions. The right of permanent residence is lost only in the event of more than 2 successive years' absence from the host country.

In specific cases, persons may enjoy the right of permanent residence in an EU country before having lived there for 5 years.

Common provisions on the right of residence and right of permanent residence

EU citizens qualifying for the right of residence or the right of permanent residence and the members of their family also benefit from equal treatment with host-country nationals in the areas covered by the Treaty. However, the host country is not obliged to grant entitlement to social assistance during the first 3 months of residence to persons other than employed or self-employed workers and the members of their family. Equally, host countries are not required, prior to the acquisition of the permanent right of residence, to grant maintenance aid for studies, including for vocational training, in the form of grants or loans to these same persons. Family members, irrespective of their nationality, will be entitled to engage in economic activity on an employed or self-employed basis.

Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health

EU citizens or members of their family may be expelled from the host country on grounds of public policy, public security or public health. Under no circumstances may an expulsion decision be taken on economic grounds. Measures affecting freedom of movement and residence must comply with the proportionality principle and be based exclusively on the personal conduct of the individual concerned. Such conduct must represent a genuine, sufficiently serious and present threat which affects the fundamental interests of society.

Previous criminal convictions do not automatically justify expulsion. The mere fact that the entry documents used by the individual concerned have expired does not constitute grounds for such a measure.

In any event, before taking an expulsion decision, the country must assess a number of factors such as the period for which the individual concerned has been resident, his or her age, state of health, degree of integration and family and economic situation in the host country and links with the country of origin. The level of protection against expulsion for the EU citizen increases with the length of stay. Thus, if the EU citizen has resided in the host country for 10 years (or if he is a minor), an expulsion decision can only be taken on imperative grounds of public security.

Public health may only be used to justify restricting free movement, if it concerns diseases with epidemic potential (as defined by the World Health Organisation) and other infectious diseases or contagious parasitic diseases.

The person concerned by a decisionrefusing leave to enter or reside in an EU country must be notified in writing of that decision in such a way that they are able to understand its content and implications. The grounds for the decision must be given and the person concerned must be informed of the appeal procedures available to them. Except in emergencies, the subject of such decisions must be allowed at least 1 month in which to leave the country.

Lifelong exclusion orders cannot be issued under any circumstances. Persons concerned by exclusion orders can apply for the situation to be reviewed after 3 years. The Directive also makes provision for a series of procedural guarantees. In particular the individuals concerned have access to judicial review and, where appropriate, to administrative review in the host Member State.

Final provisions

EU countries may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience.

This Directive does not prevent the application of national legislation or administrative arrangements providing for more favourable treatment.

REFERENCES

Act

Entry into force

Deadline for transposition in the Member States

Official Journal

Directive 2004/38/EC

30.4.2004

30.4.2006

OJ L 158 of 30.4.2004

RELATED ACTS

Communication from the Commission to the European Parliament and the Council of 2 July 2009 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 - not published in the Official Journal].

This Communication provides Member States with guidance for better application of Directive 2004/38/EC.

This guidance clarifies the rights of citizens and their family members and enlightens Member States about the measures they may take, particularly to combat abuses of rights and marriages of convenience.

In order to guarantee the correct application of Directive 2004/38/EC, the Commission undertakes to implement the following initiatives:

  • the updating of a guide for citizens to give them a better understanding of their rights;
  • the organisation of bilateral meetings with Member States.

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, 30.4.2014, p. 8-14).

04.08.2014

Top