Directive 2004/38/EC of the European Parliament and of the Council 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

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Directive 2004/38/EC came into force on 30 April 2004. Members States are required to have transposed the Directive into national legislation by 30 April 2006. In order to comply with the Directive, Ireland brought into force the European Communities (Free Movement of Persons) Regulations 2006 (S.I. No. 226 of 2006), which was in turn replaced by the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 (S.I. No. 656 of 2006). These were amended in turn by the European Communities (Free Movement of Persons) (Amendment) Regulations 2008

This Directive lays down the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members, the right of permanent residence in the territory of the Member States for Union citizens and their family members, and the limits that can be placed on these rights. The Directive seeks to codify, simplify and strengthen the previous Community instruments dealing with free movement and residence. It does not prevent Member States from providing for national provisions more favourable for the people concerned.

The Directive applies to all EU citizens who move to or reside in a Member State other than that of which they are a national, and to their family members who “accompany or join” them.  EU citizens and their family members have the right to leave the territory of a Member State to travel to another Member State.  Member States are required to grant EU citizens the right to enter another Member State with a visa or identity card or passport, and are required to grant non-EU national family members with a valid passport leave to enter their territory.

Union citizens have a right of residence on the territory of a Member State for a period up to three months without any conditions. Family members of EU citizens who do not have the nationality of a Member State enjoy the same rights as the citizen spouse whom they accompany or join. Union citizens have a right of residence for more than three months if they

(a) are workers or self employed in the Member State,

(b) have sufficient resources not to become a burden on the State,

(c) are enrolled at a private or public established and have sickness insurance, and

(d) are family members accompanying or joining the Union citizen.

Union citizens acquire the right of permanent residence in the host Member State after a five-year period of uninterrupted legal residence. Family members of the Union citizen who are not nationals of a Member State and who have lived with a Union citizen for five years also have a right to permanent residence.

The Directive entitles family members, irrespective of their nationality, to be entitled to take up employment or self-employment.  Union citizens and their family members enjoy equal treatment with the nationals of the Member State.

Member States may restrict the freedom of movement of Union citizens and their family members on grounds of public policy, public security or public health. These grounds cannot be invoked to serve economic ends.  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.  Conduct giving rise to restrictions must represent a sufficiently serious and present threat that affects the fundamental interests of the State.

Date:29 Apr 2004
Legislation Type:Directive
Geographic Focus:Europe
References:European Communities (Free Movement of Persons) (No. 2) Regulations 2006; European Communities (Free Movement of Persons) Regulations 2008
In Force:Yes
Category:EU Treaty Rights, Residence
Keywords:Citizenship, Directive, EU Treaty Rights, Europe, Family Unity (Right to), Free Movement, Freedom of Movement (Right to), Residence, Residence Permit, Third Country, Third-Country National, Union Citizen, Yes
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