Problem 4 – A family moving
What are the who categories of migrants?
What are their rights?
What are the rules for residence, entry, work, family and social benefits?
Boeles (2014) – EU migration law
In this problem two categories of migrants will be described: EU citizens and third country nationals. Chapter 2 of the book
describes the rules on free movement and residence of the EU citizens and their family. Chapter 4 describes the rules on
free movement of residence of third country nationals.
Chapter 2 – Free movement of EU citizens and members of their family
This chapter examines the scope of free movement of EU citizens and their family members. There are three levels on
which free movement is provided:
- The general Treaty level of the principal provision creating Union citizenship in Article 21 TFEU. Article 20(1)
TFEU states that every person holding the nationality of a Member State shall be citizen of the Union. It thus
remains up to the Member State to decide who will be an EU citizen. Relevant for this problem is the right of
Union citizens to move and reside freely within the territory of the Member States (Article 20(2) and 21 TFEU).
- The specific Treaty level of the provisions on the freedoms of movement of workers, establishment and services
in Articles 45-62 TFEU.
- The level of secondary legislation in the Citizens’ Directive 2004/38. It regulates the right to free movement in
more detail for Union citizens and their family members. Articles 21, 45, 49 and 56 TFEU form the legal basis of
this Directive.
In the book it is stated that, for the sake of understandability, it is better to first describe the Citizens’ Directive and to finish
with describing the general Treaty level.
Citizens’ Directive
Union citizens and their family member are endowed by the Citizens’ Directive (CD) with three respective rights of
residence:
- The right of residence for up to three months (Article 6). All Union citizens have the right of residence in another
Member State for a period up to three months without any conditions or any formalities other that the requirement
for a valid identity card or passport. This right only applies as long as they do not become an unreasonable burden
on the social assistance system of the host Member State (Article 14(1)).
- The right of residence for more than three months (Article 7). This right is subject to a more specific set of
conditions. Three categories of Union citizens enjoy this right:
1. Those who are economically active as workers or self-employed persons in the host Member State;
2. Those who have sufficient resources for themselves and their family members and do not become a burden
on the social assistance system of the Member State;
3. Those who are students and have comprehensive sickness insurance cover and who can give the insurance of
sufficient resources and do not become a burden on the social assistance system of the Member State.
- The right of permanent residence (Article 16-18). After five continuous years of legal residence, Union citizens
obtain a right of permanent residence that is no longer subject to any of the above mentioned conditions. For
workers or self-employed persons, who become pensioners or who stop working due to permanent incapacity, a
period of less than five years is sufficient for obtaining the right of permanent residence.
Family members
All these rights also extend to the family members that belong to the family circle as defined in Article 2(2) CD. Special
provisions for family members on the consequences of death or departure of the Union citizen, or divorce, annulment of
marriage or termination of registered partnership are laid down in Articles 12 and 13.
Article 2(2) raises two problems. First, the definition of spouse is not the same in all Member States. The second
problem is that unmarried partners, who have not been registered as such, are not within the definition of family members.
The position of those is only partly secured by Article 3(2)(b), which only protects the partner with whom the union citizen
has a durable relationship, duly attested. The same goes for any other family member not falling under the definition in
What are the who categories of migrants?
What are their rights?
What are the rules for residence, entry, work, family and social benefits?
Boeles (2014) – EU migration law
In this problem two categories of migrants will be described: EU citizens and third country nationals. Chapter 2 of the book
describes the rules on free movement and residence of the EU citizens and their family. Chapter 4 describes the rules on
free movement of residence of third country nationals.
Chapter 2 – Free movement of EU citizens and members of their family
This chapter examines the scope of free movement of EU citizens and their family members. There are three levels on
which free movement is provided:
- The general Treaty level of the principal provision creating Union citizenship in Article 21 TFEU. Article 20(1)
TFEU states that every person holding the nationality of a Member State shall be citizen of the Union. It thus
remains up to the Member State to decide who will be an EU citizen. Relevant for this problem is the right of
Union citizens to move and reside freely within the territory of the Member States (Article 20(2) and 21 TFEU).
- The specific Treaty level of the provisions on the freedoms of movement of workers, establishment and services
in Articles 45-62 TFEU.
- The level of secondary legislation in the Citizens’ Directive 2004/38. It regulates the right to free movement in
more detail for Union citizens and their family members. Articles 21, 45, 49 and 56 TFEU form the legal basis of
this Directive.
In the book it is stated that, for the sake of understandability, it is better to first describe the Citizens’ Directive and to finish
with describing the general Treaty level.
Citizens’ Directive
Union citizens and their family member are endowed by the Citizens’ Directive (CD) with three respective rights of
residence:
- The right of residence for up to three months (Article 6). All Union citizens have the right of residence in another
Member State for a period up to three months without any conditions or any formalities other that the requirement
for a valid identity card or passport. This right only applies as long as they do not become an unreasonable burden
on the social assistance system of the host Member State (Article 14(1)).
- The right of residence for more than three months (Article 7). This right is subject to a more specific set of
conditions. Three categories of Union citizens enjoy this right:
1. Those who are economically active as workers or self-employed persons in the host Member State;
2. Those who have sufficient resources for themselves and their family members and do not become a burden
on the social assistance system of the Member State;
3. Those who are students and have comprehensive sickness insurance cover and who can give the insurance of
sufficient resources and do not become a burden on the social assistance system of the Member State.
- The right of permanent residence (Article 16-18). After five continuous years of legal residence, Union citizens
obtain a right of permanent residence that is no longer subject to any of the above mentioned conditions. For
workers or self-employed persons, who become pensioners or who stop working due to permanent incapacity, a
period of less than five years is sufficient for obtaining the right of permanent residence.
Family members
All these rights also extend to the family members that belong to the family circle as defined in Article 2(2) CD. Special
provisions for family members on the consequences of death or departure of the Union citizen, or divorce, annulment of
marriage or termination of registered partnership are laid down in Articles 12 and 13.
Article 2(2) raises two problems. First, the definition of spouse is not the same in all Member States. The second
problem is that unmarried partners, who have not been registered as such, are not within the definition of family members.
The position of those is only partly secured by Article 3(2)(b), which only protects the partner with whom the union citizen
has a durable relationship, duly attested. The same goes for any other family member not falling under the definition in
