10 FAQ on Freedom of Movement in the EU

As part of my very popular series of legal FAQ, I now address a subject which can often help to resolve immigration cases which seem hopeless under national immigration law: the right to freedom of movement within the EU.

Before asking a new question, please read through the comments which may already answer your questions. And do you see the “Make a Donation” button on the top right of your screen? If you find these FAQ useful or if you ask a new question, it would be very nice if you make use of it. Thank you!

1. What is the right to freedom of movement within the European Union?

Broadly speaking, the citizen of any EU member state can move to any other EU member state without a visa, a residence permit or any other formality being required. It’s as easy, and in some cases easier than, a move within a country’s borders.

2. Is this what people call Schengen?

No, these are two completely different things. Schengen is a system for the abolishment of physical borders and for a single tourist visa for 26 countries. The UK, Ireland, Bulgaria, Romania, Croatia, Cyprus are not part of Schengen (but with the exception of the UK and Ireland will be sooner or later) but are bound by the EU freedom of movement rules. Even more confusingly, some countries which are not in the EU are part of Schengen and the freedom of movement rules also extend to them (Norway, Liechtenstein, Iceland). The situation in Switzerland is even more complicated, but please ask a Swiss lawyer about that.

Schengen and EU 2014

3. Are you allowed to work or study in any other EU country?

Yes,  freedom of movement not only means that you can travel, but you can settle in any EU country. You can take up employment, you can study, you can set up a business, you can retire. You can pretty much do anything that you can do in your home country, with exceptions on some government jobs which may be restricted to nationals of that country and on voting in national elections.

4. Is there a limit as to how long you can stay in another EU country?

You are always allowed up to three months in any EU country without any further conditions. For stays beyond three months, you must be exercising one of your EU Treaty rights, i.e. being in employment, running a business, studying or being self-sufficient. This is a gross simplification, but as long as you don’t apply for welfare, you are safe. In reality, the three-month rule is not enforced, also because you could leave the country and come back the next day or you can always say that you just arrived yesterday because your passport doesn’t get stamped if you cross the border as an EU citizen. – From my personal experience, nobody cares. I have been living in six different EU countries and never had any kind of registration, paperwork, nothing. It was never a problem.

5. How does this help me as a non-EU citizen?

Now we’re getting to the interesting part! EC directive 2004/38 extends the freedom of movement rights to family members of EU citizens. That means that if you are Afghan/Brazilian/Chinese or anything else and your spouse is an EU citizen, then you can live with them in the EU if they are exercising their freedom of movement rights, i.e. if they are not living in their country of citizenship.

6. That’s great! How do I get this EU freedom of movement visa?

It gets even better: you don’t need any visa. Freedom of movement is a right which you have by virtue of law and it does not depend on any EU member state issuing a visa or a residence permit. When travelling or crossing borders together with your EU spouse, you just need to bring your marriage certificate and you’ll be able to enter the EU or cross borders within the EU.

If you want, you can however apply for a residence card which will show that you have the right to reside in that particular country. This is NO legal requirement and you have the right to stay BEFORE you apply or obtain such a residence card. The practical use of the card is for employers (who often don’t understand immigration law) and to show to border guards (dito) and airline staff (dito).

7. Wait. I heard that some countries have restrictions for the immigration of spouses.

Yes, Germany for example requires a minimum knowledge of German, the UK requires a certain income level. But these national rules do NOT apply to other EU citizens and their spouses because national law cannot overrule EU law. This leads to the paradoxical situation that it is easier to migrate to an EU country if you are married to the citizen of another country than to a citizen of that country. For example: If you are a non-EU citizen and you get married to a German and want to move to Germany, you will need to prove minimum language skills in German and you will need a visa; but if you marry a French person who lives in Germany, you can move to Germany without a visa and without any language skills because you fall under EU law.

8. I have the feeling that you were about to suggest a trick.

Of course! Thanks to the freedom of movement in the EU and the fact that there are no more border controls between most countries, you can bypass national immigration laws. Let’s say we have a German guy who gets married to a woman from Bangladesh, but she cannot get a German visa. Easy: the German husband moves 5 km across the border to France, Poland or any other neighbouring EU country, and the wife can join him right away. Officially they will live in France, Poland etc. but as there are no border controls, nobody will know how much time they spend where.

9. You keep talking about spouses, but does this also relate to other family members?

Yes, it does. Other groups of family members who may benefit from the freedom of movement in the EU are: same-sex partners, unmarried long-term partners, children, dependent parents, including dependent children and parents of the non-EU partner. You may notice that this is the perfect loophole for circumventing strict national laws against family reunion.

10. And all these rules are the same in every EU country, so it doesn’t matter if my spouse is from Germany or from Croatia?

No. That would be too simple. EC Directive 2004/38 needs to be transposed into national law and this leads to slightly different results in each of the 28 EU member states. A particular problem arises for same-sex partners because some EU member states haven’t recognized such partnerships (yet).

Usually, the country of citizenship of your spouse or sponsor is not as relevant as the country in which you wish to settle. For Croatian citizens however (and thus for non-EU family members of Croatian citizens), some countries (for example Germany) have opted to use a phasing-in which limits access to the labour market before July 2015. There are however no limits on moving as a student or on setting up a business or being self-employed, so that these limits can be easily circumvented.

Because this is a very complicated area of the law, I ask you to restrict your questions in the comment section to general questions which might be of interest to others. I won’t be able to solve specific, complicated cases without looking at the details and not without charging. Please feel free to contact me and be as precise as possible in the description of your case. I charge 250 EUR for a detailed consultation. And remember (I have to mention this explicitly because it happens almost every day), I cannot answer questions if you write to me saying “I am an EU citizen and my wife is a non-EU citizen”. I need to know exactly all types of citizenship involved.

About Andreas Moser

Travelling the world and writing about it. I have degrees in law and philosophy, but I'd much rather be a journalist, a spy or a hobo.
This entry was posted in Europe, Family Law, German Law, Immigration Law, Law and tagged , , . Bookmark the permalink.

28 Responses to 10 FAQ on Freedom of Movement in the EU

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  7. nancy says:

    I am a mother of 3 German minor. I have been trying to move to Germany without success. I tried the student route and it worked. I’m currently living and studying in Germany,doing my masters. I would like to know how to proceed to change my resident permit after it expires next year. Thanks in advance

  8. Richard says:

    I’m a British citizen. If I move to Germany in 2016 and apply for a residence permit (which you say is optional in point 6) do you think that will continue to give me the right to stay in Germany even if a majority of my fellow British vote to leave the EU in 2017? Presumably as a fluent German speaker I would be able to apply for German citizenship after 3 years of residency in Germany (in say 2019?).

    • Nobody knows what will happen with the British referendum and how Germany will react, of course.
      But my assumption is that even if Britain decides to leave the EU, it won’t happen by sending a letter of withdrawal but by lengthy negotiations, not least due to questions like the one you posed. I am optimistic that there will be enough time to apply either for a German residence permit under domestic law or for citizenship.

  9. Guest says:

    Thanks for this wonderful resource of information! Such complicated topics.

    My question is about obtaining residency in Germany, but not living here completely year-round.
    I am a US citizen and resident, married to another American. I started working for a German company and travel frequently to Germany for extended stays (4-8 weeks). This is full-time freelance (I’m not their employee) but under contract and quite stable. It averages about 6 months per calendar year of time in Germany; the rest, I work for them from the US. The company would like me to consider Germany residency so that I do not have to be restricted to the 90 day in / 90 days out rule for non-EU residents. They would provide letter of employment (or contract work, as it were) plus residential address.

    If I am approved for residency, and if I understand correctly, I can travel freely in the EU and back to the States. I just cannot leave Germany for more than 6 consecutive months at a time – is that correct? However, since my husband and I file US taxes jointly, and from an American address and bank account – and further, he would not be applying for residency, just me – am I legally allowed to have German residence, too? Does Germany make a distinction between secondary home and primary?

    I’m thinking it’s either this solution, or do you know of another way that freedom of travel can be allowed for US citizens who work in the EU and need to be here frequently? The 90 day in/90 days out is really difficult to schedule around.

    Many thanks.

    • Although this is not really a question on freedom of movement within the EU, but on residence in Germany and on tax law, I will answer it after receiving a donation. You find the “Male a Donation” button in the top right corner of this page.

      • Guest says:

        Ahh, my apologies for not understanding the forum – I tried searching for the most relevant one on the blog, as I understood my issue to be. Just posted a donation, thank you kindly for considering.

      • a) Thank you very much for your generous donation!
        b) No need for apologies. You have indeed found the most relevant page because I haven’t had time yet to put up FAQ on German residence permits. (Or actually, I am afraid of being inundated with questions once I do.)

        Now to your situation:

        1) Yes, if you get a German residence permit based on your employment, you can travel freely between the US and Germany and within the EU as much and as often as you like. Depending on your income and your accommodation, you could also sponsor your spouse for a dependent visa.
        2) You can leave Germany for more than six consecutive months, but you would then need to re-apply for your residence permit because it would have become invalid (§ 51 I no. 7 AufenthG). You can avoid this if you contact the immigration authorities in Germany before leaving Germany for longer than 6 months, in which case they can give you a longer period in which your German residence permit won’t become invalid. Usually, if you already know when you will return, this is not a problem, at least not for absences of up to a year.
        3) There is really no other way around the 90 day in/90 day out rule because these 90 days are the maximum for tourist visas (like in the US). What you are doing is actually not quite legal, to put it mildly, because you (a) work while on a tourist visa and (b) don’t pay taxes and social security contributions although working in Germany. So if you ever apply for a residence permit, you should not mention that you have been working already.
        4) You can of course have two places of residence. There is no distinction between primary and secondary residence (except if you have several places of residence within Germany). It should be noted that residence in tax law is not determined by where you want it to be or where you have a bank account, but it is the place where you actually live and work.
        5) But you are less free in choosing where to pay your taxes. For the time you work in Germany, you would need to pay taxes and social security contributions in Germany. The US would still tax you on all your income because the US has extraterritorial taxation for citizens. There is a double-taxation agreement between the US and Germany according to which the taxes you paid in one country should be deducted from the taxes you have to pay in another country, but you may still end up paying more than if you just lived and worked in one country. Because you and your husband file jointly, the whole thing might be complicated even further.
        6) Because you are already married, there is really no easier way to get a residence permit in Germany. Unless you do have some European immigrants among your ancestors from which you could derive the citizenship of an EU member state.

      • Guest says:

        Thank you! Actually, I have been able to trace my mother’s ancestry back to Denmark, coming directly to the U.S. in the mid 1800’s. I know Denmark recently started allowing dual citizenship – would that be worth pursuing, in your experience with other people who could claim ancestral citizenship? Sorry for asking a second question here – if that’s too much, no problem. I’ll keep chipping away at this quandary!

      • I have no idea about Danish law of course, but the issue in ancestry cases is usually not dual citizenship. Even countries that don’t approve of dual citizenship (like Germany) have no way of preventing it if you receive both citizenships at birth (even if you only find out about one later).
        With cases dating that far bach, the problem is usually documentation or that the line might have been broken somewhere if one of your ancestors did something to lose Danish citizenship.
        But you would really need to ask a Danish lawyer or the Danish consulate about this.

  10. Anonymous says:

    Hello,congratulations for your usefull informations.
    I have one guestion .Im from Macedonia and my husband ist from Bulgaria.We want to work in Germamy near Düsseldorf but I have problem with my Universe Diplom from Macedonia.Im a Dentist. (also I have 10 years experience in Macedonia)I have this (Anerkennung für Approbation)procedure before few months in Beziersregierung in Düsseldorf began but its going very hard.If its impossible because my husband is EU citizen and because my Diplom ist in Bulgaria( Anerkannt ),can I use any benefits without annerkenung .I findet a job in Germany but I
    cant start working .I have B2 niveau German.
    Mit freundlichen Grüßen.

    • Willkommen in Deutschland!

      Ich muss zugeben, dass ich keine Erfahrung mit derartigen Anerkennungsverfahren und insbesondere nicht mit der Approbation habe. Ich könnte den Fall natürlich recherchieren, aber das würde einige Zeit beanspruchen und ich müsste dafür dann meine Beratungsgebühr von 200 EUR berechnen.

      Haben Sie vorher schon in Bulgarien als Zahnärztin gearbeitet?

      (Ich habe ürbigens beste Erinnerungen an Mazedonien, wo ich vor zwei Jahren meinen Geburtstag verbracht habe. Ein wunderschönes Land!)

      • Anonymous says:

        Danke für Ihrer Nachrich.Ich freue mich daß Sie schon Mazedonie gesehen haben.Ich habe zwischenzeit eine Gutachter für Approbation kontaktiert und möchte ich zuerst mit Unterlagen Procedur abgeschlosen.Dafür werde ich Ihnen noch einmal später kontaktieren.
        Beste Grüßen.

  11. Jennifer says:

    Hello Andreas,

    My family and I are planning to travel in Europe as well as the UK for 7 months this year. We will be in England first and then to France and several other countries before returning to England before we head back to the U.S. I am a U.S. citizen and my husband and children are all dual U.K. and U.S. citizens. We will not be in any EU member state for longer than 90 days, but we will be visiting several different EU countries (and possibly a few non-EU countries) over the course of those 7 months. Our obvious concern is whether or not I have the same “freedom of movement” within the EU as my family members? Additionally, I understand that if I do have this same “freedom of movement”, that I will need to bring both my birth and marriage certificates along with passports to confirm my relationship. This brings me to my second question, which is whether or not I would need translations for these documents for every country or would an Apostille stamp be best? If an Apostille would be best, should I have an Apostille stamp for every country that we enter? I understand that you appreciate donations. If you could let us know how much would be appropriate for these questions that would be great. Thank you!

    • Dear Jennifer,
      Because I will have to do some research, I would appreciate a donation of around 50 $.
      To already answer the easy question: If your marriage certificate is in English, you don’t need any translations.
      The more specific your travel plans are, the more detailed my advice will be. Which countries are you interested in visiting? We also have to differentiate between Schengen and non-Schengen states because there are no border controls between the Schengen states, so once you are in France, you can actually go quite far without anyone noticing where you are.
      We also have to consider that the EU freedom of movement does not apply in the UK because it’s the country of your husband’s citizenship. In all other EU countries, it may apply. Will your husband be working during the time of the trip or is it a oure holiday?

      • Jennifer says:

        Thank you Andreas…let me know if you don’t receive the funds. To answer your questions: 1) yes, my husband is self employed and will be working even though this is technically our holiday. 2) we arrive on the UK May 14th to visit family. We leave for France June 10th and will travel to Spain, Italy, Greece, Switzerland, Austria, Hungary, Germany, Luxembourg, Amsterdam, and Belgium. Will head back to the UK from France. We leave the UK to return home on November 10th. I think these are all Schengen countries with the exception of the U.K. We have discussed coming up through Montenegro and Croatia after we leave Greece. This decision may hinge on your answers to our freedom of movement question. 3) as for freedom of movement in the UK, I think that I am good on my US passport alone and being married to a UK citizen to stay for up to 6 months…but to confirm would be good. Please let me know if you require further information. Thanks!

      • Jennifer says:

        Hello Andreas, I was just checking in to see if you have found any answers to our questions regarding freedom of movement and to see if you received my update and payment?
        thank you!

      • It’s on my to-do list for this weekend.

  12. Jennifer says:

    Perfect, thank you!

  13. Jennifer says:

    Hello, Just wondering if you have had any success with our question regarding freedom of movement for spouse of EU citizen?

  14. Sandra says:

    Hi. Wonder if you can advise me . I’m an Irish citizen,lived all my life in Ireland. I’m eligible for a UK passport, and wondered if I gave up my Irish passport could I bring my non eu spouse to Ireland being that I would be in Ireland on a UK passport . ( have not lived in the UK)

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