Citizens of the European Union enjoy rights as a result of their citizenship status, such as, the right to move and reside within another EU country.
Free movement is considered a fundamental right of a Union citizen.
Such a right can also be granted to family members of the Union citizen, meaning they can also enjoy free movement and residence rights.
Article 3 of the Directive 2004/38/EC states the following with respect to family members:
- This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.
- Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:
any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;
Retention of Residence Rights – Divorce
The EU citizens family member, for example, a non-EEA national Spouse may have applied for a Residence Card on the basis of the marriage, but there has been a change in the marriage which resulted in divorce.
The non-EEA national Spouse in this example enjoyed the free movement right on the basis of being a family member of the EU citizen, in this example a spouse.
S.10 of the Free Movement of Persons Regulations 2015 provides for retention of a right of residence in the event of divorce if certain conditions are met.
An application to the EU Treaty Rights Division may be required in the circumstances and needs to be assessed on a case by case basis with all the facts considered.
The marriage must have existed for 3 years with one of those while residing in the state before dissolution.
If you have questions about Eu Treaty Rights, you can speak with an immigration lawyer on (01) 546 1121 or (052) 612 1999.
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