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Family Members - Coggle Diagram
Family Members
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Residence rights
Article 7
- All Union citizens shall have the right of residence on the territory of another Member State for
a period of longer than three months if they:
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(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or
(c)
are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and
have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or
(d) are family members accompanying or joining a Union citizen who satisfies the conditions
referred to in points (a), (b) or (c).
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Retained right upon the breaking up of the family relation if sponsored EU citizen divorces or passes away
Article 12 - Retention of the right of residence by family members in the event of death or departure of the Union citizen
- Without prejudice to the second subparagraph, the Union citizen's death or departure from the host Member State shall not affect the right of residence of his/her family members who are nationals of a Member State.
Before acquiring the right of permanent residence, the persons concerned must meet the conditions laid down in points (a), (b), (c) or (d) of Article 7(1).
- Without prejudice to the second subparagraph, the Union citizen's death shall not entail loss of the right of residence of his/her family members who are not nationals of a Member State and who have been residing in the host Member State as family members for at least one year before the Union citizen's death.
Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. "Sufficient resources" shall be as defined in Article 8(4).Such family members shall retain their right of residence exclusively on a personal basis.
- The Union citizen's departure from the host Member State or his/her death shall not entail loss of the right of residence of his/her children or of the parent who has actual custody of the children, irrespective of nationality, if the children reside in the host Member State and are enrolled at an educational establishment, for the purpose of studying there, until the completion of their studies.
Article 13 - Retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership
- Without prejudice to the second subparagraph, divorce, annulment of the Union citizen's marriage or termination of his/her registered partnership, as referred to in point 2(b) of Article 2 shall not affect the right of residence of his/her family members who are nationals of a Member State.
Before acquiring the right of permanent residence, the persons concerned must meet the conditions laid down in points (a), (b), (c) or (d) of Article 7(1).
- Without prejudice to the second subparagraph, divorce, annulment of marriage or termination of the registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of residence of a Union citizen's family members who are not nationals of a Member State where:
(a) prior to initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has lasted at least three years, including one year in the host Member State; or
(b) by agreement between the spouses or the partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has custody of the Union citizen's children; or
(c) this is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage or registered partnership was subsisting; or
(d) by agreement between the spouses or partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has the right of access to a minor child, provided that the court has ruled that such access must be in the host Member State, and for as long as is required.
Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. "Sufficient resources" shall be as defined in Article 8(4).
Such family members shall retain their right of residence exclusively on personal basis.
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Case C–127/08 Metock and Others v Minister for Justice, Equality and Law Reform [2008] ECR I–6241
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The Directive makes clear, as the ECJ had repeatedly emphasized in its case law, that the rights to reside and to work are not conditional upon initial satisfaction of the formalities for which the Directive provides.
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The CJEU ruled in McCarthy that Directive 2004/38 provides for the right of residence of an EU citizen and a derived right of residence for his or her privileged family members. However, this was only where that citizen has exercised the right of freedom of movement by becoming established in a Member State other than the Member State of nationality. Articles 20 and 21 TFEU may, in certain circumstances, protect the right of residence of a citizen in his or her own state, together with the derived right of her family members. - Case C–34/09 Zambrano v ONEM [2011] ECR I–1177
Article 14(3) codifies the case law in (p. 928) Grzelczyk31 and Trojani32 to the effect that expulsion cannot be an automatic consequence of a person’s recourse to the social assistance scheme of the host state. - However, see Case C–333/13 Dano v Jobseeker Leipzig EU:C:2014:2358
Article 24, paragraph 2, provides by way of derogation that host states are not obliged to confer entitlement to social assistance during the first three months of residence, nor in the case of job-seekers during the longer period to which a job-seeker is entitled to reside in search of work. - Case C–67/14 Jobcenter Berlin Neuköln v Alimanovic EU:C:2015:597. and Case C–333/13 Dano v Jobseeker Leipzig EU:C:2014:2358. We shall see below in the cases of Vatsouras and Bidar how the Court has sidestepped this derogation by providing that job-seekers and students may rely instead on Articles 18 and 45 TFEU to gain access to job-seekers’ allowances and maintenance grants on the same terms as nationals.
ECJ ruling in MRAX, provides that where the EU national or family member does not have the requisite documents or visas, the Member State shall give them every reasonable opportunity to obtain the documents, or to prove their right to movement and residence by other means.