Strangers at the gates: denying residence rights in Europe in the 21st century

Julien Bois |

Seeking work and shelter in another EU country proves more difficult today than at the end of the last century. Despite existing EU legislation, national administrations seem reluctant to facilitate the residence of certain European citizens. Julien Bois calls for the European Commission to again clarify citizens’ free-movement rights, taking into account societal and judicial developments and administrative practices that have developed in the last 15 years.

Thank EU poster on street wall

The European Commission should take into account legal developments in the field of free-movement rights and issue a clarification. Photo from Edinburgh by Lāsma Artmane on Unsplash

Seeking work and shelter in another European Union (EU) country proves more difficult today than at the end of the 20th century. National administrations seem reluctant to facilitate the residence of certain European citizens. Despite existing legislation (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), citizens have difficulties overcoming administrative hurdles when trying to obtain residence documents, have their third-country national family members joining them abroad, or simply obtaining social benefits in their new country of residence.

A genuine political union?

The adoption of the Maastricht Treaty created European citizenship. It meant that every citizen could move and reside freely in another EU country, even if they were not economically active. Discrimination on the grounds of nationality thus proved illegal under EU law, and foreign citizens were given the same social rights as nationals.

The Court of Justice of the EU (CJEU) played a key role in favoring cross-border mobility and residence. It granted economically inactive parents and students the possibility to receive support from their new state of residence. The legislator outlined the scope of residence rights with a text that clearly defined the rights and obligations attached to EU citizenship. By tying citizenship less to common market considerations and more to fundamental rights, as Adrienne Yong points to in her recent book, EU institutions took a major step towards a genuine political union.

Restrictions on free movement rights

Yet the mood has clearly changed in the last 10 years. The economic and financial crisis led European countries to tighten public spending. Mobile citizens also became victims of public spending cuts. EU countries restricted access to welfare by denying previously accepted requests or withholding access to needed documents like residence permits.

The CJEU departed from its earlier expansive reach of EU citizenship to a narrow interpretation of the rules regulating free movement. It famously put an end to social tourism in the Union and has not helped former workers to stay beyond six months even if its earlier case law hinted towards this possibility.

The Commission issued further guidance on the application of the free-movement directive in 2009, but has not followed up despite dramatic changes in the socio-economic environment in European countries. As a result, some parts of the directive are not applied. Family members of EU citizens who are third-country nationals (TNC) are often required to provide visas, despite their right to move visa-free in the Schengen area. Some groups remain particularly prone to frequent residence documents checks although this is clearly prohibited.

There is no consensual definition of “public policy grounds” which allow member states to deport or refuse entry of EU citizens into their territory in order to prevent disturbance of social order. The European Federation of National Organisations Working with the Homeless (FEANTSA) reports that member states have adopted different approaches as a result. National authorities in Spain, France, Italy and Portugal keep refusing marriage and birth certificates issued in a non-EU country even for EU citizens or for their TCN family members.

As Martin Risak and Thomas Dullinger have shown, member states also adopt generalized thresholds when assessing the working situation of mobile EU citizens, despite the provision in Directive 2004/38/EC to assess situations on a case-by-case basis. National administrations have adopted either a minimum income threshold and/or a minimum number of hours worked per week for the activity to be considered work, and these thresholds are much higher than those retained by the CJEU’s case law. These are a few examples of the many uncertainties that Sandra Mantu and Paul Minderhoud have identified in EU law regulating cross-border mobility. Others relate to ‘comprehensive medical insurance’, or ‘sufficient resources’.

Same-sex marriage and other societal developments

The adoption in 2004 of a directive regulating the exercise of free movement and residence was a welcome move for EU institutions and national administrations in their task of facilitating the exercise of one of the core freedoms enshrined in the EU treaties. But no such text can foresee the developments in society. Free movement in the EU in 2020 does not hold the same meaning as it did in 2004. Since then, the definition of labor has changed, same-sex marriage lawfully contracted in a member state shall be recognized as such across the EU’s territory (Coman case), the length of residence shall be taken into account when considering deportation on grounds of public policy.

Some of these uncertainties displayed effects early on, which led the Commission in 2009 to issue the above-mentioned clarification of the directive on free movement and residence. It answered some questions raised by citizens, national administrations and judiciaries at the time, which had implications for the situation of thousands of mobile citizens and their family members.

Putting an end to uncertainty

The increasing flow of mobile citizens, the unequal application of free movement and residence rights and the ambiguities displayed by the case-law of the Court of Justice all point to the need for further clarification of the free movement regime, according to the European Citizen Action Service (ECAS).

While a full overhaul of the directive 2004/38 EC does not seem necessary as it provides the grounding rules that still fit the societal situation in 2020, a new communication would be a welcome move to help clarifying certain aspects of a necessary vague text. While the current situation caused by the COVID-19 pandemic demands a halt to non-essential travels, the demand for further clarification remains greater than ever for EU citizens who seek to establish themselves in their new member states in these troubled times.

A clarification from the European Commission would hardly be demanding, as it would only have to consider judiciary developments and administrative practices regarding situations not foreseen by the legislator 15 years ago. It would simply be to ask what is required of any political system based on the rule of law: the end of uncertainty. Today, many do not know what may happen when residing in another member state. All it takes is a few words to put an end to uncertainty.

This post was developed during the author’s stay at the European Citizen Action Service (ECAS) as Marie-Sklodowska Curie visiting fellow in March 2020.