Posted by on Mar 23, 2014 in FAMILY LAW UPDATES, LEGAL UPDATES

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FAMILY LAW UPDATE by Jessica Zama:  Rights of residence of third-country nationals who are family members of an EU citizen in the Member State of the origin of that citizen.

On 12 March 2014, the European Court of Justice ruled in respect of a Member State’s authority to grant a right of residence to a third-country national who is a family member of an EU citizen of that Member State (Judgment in Cases C-456/12 and C-457/12).

These rulings were in response to two separate requests from the Netherlands, in the context of four different cases. In two of the cases, the third-country nationals were married to and were therefore family members of a Dutch national.  During their marriage, they had lived in other Member States, with their Dutch spouse coming to visit regularly. When they attempted to move to the Netherlands, in both cases the spouse was refused the right of residence.

The question asked to the Court was whether EU law, in particular Article 21 TFEU and Directive 2004/38/EC (which grant EU citizens and their family members the right to move and reside freely within the territory of the Member States) grants third -country nationals a right of residence in the Member State of which their husband/wife is a national.

The Court found that a refusal to allow a derived right of residence for a family member of an EU citizen who is a third-country national, may interfere with the EU citizen’s freedom of movement under that provision. There has to, however, have been a genuine residence of that that national with the family member in the other Member State, to show that the EU citizen has created or strengthened his family ties, i.e. for a period of longer than three months.  Accumulating various short periods of residence will not give rise to residence.  Further, the third-country national must have had the status of “family member” for at least part of the period of his residence in the host Member State.

Similarly, in a case where an EU citizen regularly travels to another member state for work and their third-country national spouse lives in that country, refusing that spouse residence goes against the EU citizen’s freedom of movement for workers guaranteed by Article 45 TFEU, and any family member of the EU worker will derive a right of residence granted under this legislation.

Oliver & Partners has assisted in a situation where the husband, an English national and his American wife, moved to Italy immediately after marriage. They were very concerned as the wife had overstayed her visa due to serious health problems. The couple had never lived in the UK together as a married couple. We successfully applied for residence for the husband as an EU national, and subsequently the right to remain of his wife in Italy .

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