New rights of residence for EU nationals

01 February 2006
Issue 190 (February 2006)

Pamela Fitzpatrick gives an overview of the new EC Residence Directive. A more detailed analysis of this Directive will follow in the next edition of the Welfare Rights Bulletin.

On 30 April 2006, a new EC Residence Directive comes into force. EC Directive 2004/38 repeals all existing EU residence directives 1 and amends EC Regulation 1612/68, the regulation governing the rights of EU workers. 2 The Directive introduces a simplified system of conditions governing the right of residence for all EU citizens.

The new Directive applies to all EU nationals who fall within the scope of the EC Treaty together with family members (irrespective of nationality) who accompany or join them. This includes all categories of EU nationals covered by earlier directives, namely employees (workers), the self-employed, providers and receivers of services, retired people, people who are economically inactive but who are self-supporting, retired people and students.

The Directive defines 'family member' as being the spouse of the EU national as well as descendant children up to the age of 21 of either the EU national or spouse. 3 It includes ascendants of either the EU national or their spouse. It also includes other dependent family members who are members of the household of the EU national or where there are serious health grounds which require personal care by the EU national. 4

The Directive is more generous than its predecessor in respect of the definition of family member in that it extends the definition of family member to include civil partners as well as unmarried heterosexual partners together with children and ascendants of such partners. However, this will only apply where the couple are in an established relationship where there is evidence of a 'durable relationship'.

It gives all EU nationals a right of entry to any EU state and allows a right of residence for the first three months of arriving in a new member state. This right of residence is conditional on the person not becoming an unreasonable burden on the social assistance system of the host member state. Social assistance is generally taken to mean income support or income-based JSA in the UK.

To establish a right of residence after the initial three-month period, an EU national must fall within one of the following groups: 5

  • employed (workers);
  • self-employed;
  • economically inactive people with sufficient resources to support themselves and insured against sickness;
  • students who have sufficient means to support themselves at the start of their studies and who are insured against sickness;
  • family members of any of the above who are accompanying or joining the EU national.

The Directive states that a person who is employed or self-employed will not lose their worker status if they:

  • are temporarily unable to work as a result of illness or accident;
  • have worked in the particular member state for a sufficient period to gain worker status and are registered as a job-seeker with the relevant employment office;
  • are on vocational training. (For people who give up their jobs voluntarily, this training must be related to their previous employment.)

The Directive codifies some of the principles established by case law 6 relating to family members of EU nationals. Where an EU national has established a right of residence, the family of that EU national will not lose their right of residence in the event of the death or departure of the EU national from the member state. 7

The Directive also allows for the right of residence to continue for children and their carers where a child is enrolled at an educational establishment until the completion of his or her studies. This only applies to children where a parent or carer has previously had a right of residence.

The Directive gives EU nationals who have a right of residence the right to equality of treatment in respect of any matter covered by the EC Treaty. This includes all social security benefits and tax credits. However, there are some exceptions to the right to equal treatment. In particular, the Directive excludes an EU national from relying on the equal treatment provision in respect of social assistance during the first three months of residence. The exclusion does not apply to workers or the self-employed.

The rules relating both to benefits and immigration will have to be amended to fully reflect the content of the Directive but at the time of writing the regulations have not been published. There are no changes to EC Regulation 1408/71 and it is unlikely that the new Directive will have significant impact on nationals from the new EU member states (A8 nationals).

Please be aware that welfare rights law and guidance change frequently. Therefore older Bulletin articles may be out of date. Use keywords or the search function to find more recent material on this topic.

  • 1. The Directive repeals Directives 68/360, 64/221 and 72/194 for employees, 73/148, 73/35 and 75/34 for the self-employed, 90/364 and 90/365 for economically inactive people who are self-supporting and 93/96 for students.
  • 2. The Directive repeals only Articles 10 and 11 of EC Regulation 1612/68.
  • 3. Article 2 Directive 2004/38.
  • 4. Article 3 Directive 2004/38.
  • 5. Article 7 EU Directive 2004/38.
  • 6. Echternach and Moritz Cases C389/87 and 390/87 and Baumbast Case C413/99.
  • 7. A right of residence after death will only follow where the family member was living with the EU national for one year of more in the host state prior to the death.