DIRECTORATE GENERAL FOR INTERNAL POLICIES POLICY DEPARTMENT C: CITIZENS' RIGHTS AND CONSTITUTIONAL AFFAIRS CIVIL LIBERTIES, JUSTICE AND HOME AFFAIRS PETITIONS Obstacles to the right of free movement and residence for EU citizens and their families Comparative Analysis STUDY Abstract This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the LIBE and PETI Committees, presents a synthesis of in-depth studies in nine Member States in addition to broader EU and national research. Based on an analysis of selected provisions of Directive 2004/38/EC in Belgium, France, Germany, Ireland, Italy, Poland, Spain, Sweden and the UK, it identifies the main persisting barriers to free movement for EU citizens and their family members. The study also examines discriminatory restrictions to free movement, measures to counter abuse of rights and refusals of entry and residence rights, in addition to expulsions. It finds that, ten years after the deadline for transposition, there is general compliance, though some challenges remain. More systematic data collection, evaluation and guidance is thus required. The nine country studies are made available separately. PE 571.375 EN ABOUT THE PUBLICATION This research paper was requested by the European Parliament's Committee on Civil Liberties, Justice and Home Affairs and Committee on Petitions and was commissioned, supervised and published by the Policy Department for Citizens’ Rights and Constitutional Affairs. Policy departments provide independent expertise, both in-house and externally, to support European Parliament committees and other parliamentary bodies in shaping legislation and exercising democratic scrutiny over EU external and internal policies. To contact the Policy Department for Citizen's Rights and Constitutional Affairs or to subscribe to its newsletter, please write to: [email protected] Research Administrators Responsible Ottavio MARZOCCHI and Darren NEVILLE Policy Department C: Citizens' Rights and Constitutional Affairs European Parliament B-1047 Brussels E-mail: [email protected] PROJECT MANAGERS/AUTHORS Marta BALLESTEROS, Principal Legal Advisor, Milieu Ltd. Gillian KELLY, Legal Advisor, Milieu Ltd. Nathalie MEURENS, Legal Advisor, Milieu Ltd. Anna PEREGO, Legal Researcher, Milieu Ltd. SENIOR EXPERT Jo SHAW, Director of the Institute for Advanced Studies in the Humanities, University of Edinburgh NATIONAL EXPERTS Austria Elena FRIES-TERSCH Belgium Nathalie MEURENS and Jozefien VAN CAENEGHEM Bulgaria Zravka OUGRINOVA, Elena VARBANOVA and Aleksandar DORICH Cyprus Valentina DIMITRIOU Croatia Damir PETROVIC Czech Republic Hana SPANIKOVA Denmark Nina Joye SMITH Estonia Kristjan KALDUR Finland Laura ISOTALO and Johanna SKIPPARI France Jean-Christophe NICAISE CHATEAU, Vanessa LEIGH, Sophie MOREL and Isabell BÜSCHEL Germany Ferdinand WOLLENSCHLAGER Greece Magdalini-Emmanouela KOLLATOU Hungary Katalin CSÁSZÁR Ireland Gillian KELLY Italy Silvia BRUNELLO and Anna PEREGO Latvia Linda DE KEYSER Lithuania Monika RUDYTE Luxembourg Laura JACQUES and Benoit CAVEZ Malta Emma PSAILA Netherlands Nienke VAN DER BURGT and Sophie VANCAUWENBERGH Poland Paulina ROICKA Portugal Gonçalo MOREIRA Romania Mihaela MATEI Slovakia Zuzana LUKACOVA Slovenia Neža Kogovšek ŠALAMON Spain Roberto VALLINA HOSET and Carmen ROMAN VACA Sweden Ida Otken ERIKSSON and Hanna PETTERSSON United Kingdom Stephanie REYNOLDS LINGUISTIC VERSIONS Original: EN Manuscript completed in September 2016 © European Union, 2016 This document is available on the internet at: http://www.europarl.europa.eu/supporting-analyses DISCLAIMER The opinions expressed in this document are the sole responsibility of the author and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorised, provided the source is acknowledged and the publisher is given prior notice and sent a copy. Policy Department C: Citizens' Rights and Constitutional Affairs __________________________________________________________________________________________ CONTENTS LIST OF ABBREVIATIONS 8 LIST OF TABLES 10 EXECUTIVE SUMMARY 11 1. INTRODUCTION 17 1.1. Legal Context 17 1.2. Application of Directive 2004/38 until 2008 19 1.3. Objective and methodology 21 2. OVERVIEW OF THE TRANSPOSITION OF KEY PROVISIONS OF THE DIRECTIVE IN MEMBER STATES 24 2.1. Context: Difficulties in Transposition 24 2.2. Overview of the transposition of key provisions of the Directive 27 2.2.1. Analysis based on selected provisions 27 2.2.2. Transposition challenges regarding the selected provisions 29 2.2.3. Additional transposition issues in the selected Member States 34 2.2.4. Topical transposition issues 37 2.3. CJEU interpretation of the Directive 48 3. ANALYSIS OF THE PRIMARY BARRIERS TO THE RIGHT TO ENTRY 51 3.1. EU Legislation 51 3.2. EU citizens 52 3.2.1. Obligation to report their presence in the Member State within an unreasonable period of time 53 3.2.2. Others 53 3.3. Family members of EU citizens 54 3.3.1. Accelerated procedure for entry visas refused 54 3.3.2. Excessive delays in obtaining a visa 55 3.3.3. Visas not issued free of charge 56 3.3.4. Refusal of visa on invalid grounds or without a justified reason 56 3.3.5. Excessive documentation required to obtain a visa 57 3.3.6. Scarce and confusing information regarding visas 58 3.3.7. Others 58 4 Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis __________________________________________________________________________________________ 4. ANALYSIS OF THE PRIMARY BARRIERS TO THE RIGHT TO RESIDENCE 59 4.1. EU Legislation 59 4.2. Recurring obstacles 61 4.2.1. Excessive delays 61 4.2.2. Excessive documentation requirements 62 4.2.3. Denial of the right of residence on invalid grounds 64 4.2.4. Lack of information concerning the right of residence 65 4.2.5. Restrictive interpretation of proof of health insurance 66 4.2.6. The situation of TCN family members of EU citizens 67 5. ANALYSIS OF THE PRIMARY BARRIERS RELATED TO SOCIAL SECURITY 68 5.1. Directive 2004/38 and other EU acts 68 5.2. Types of benefit 69 5.2.1. Old age pensions 69 5.2.2. Health care 71 5.2.3. Family benefits 72 5.2.4. Unemployment benefits 73 5.3. Main types of obstacles 73 5.3.1. Lack of coordination and communication between national authorities of different Member States 73 5.3.2. Social security contributions 75 5.3.3. Ignorance of the rules determining the applicable legislation 75 6. OTHER RECURRING BARRIERS 77 6.1. Accessing employment in other Member States 77 6.1.1. Non-recognition of professional qualifications from other Member States 77 6.2. Using vehicles in another Member State 78 6.2.1. Requirement to register vehicles in another Member State 78 6.2.2. Vehicle taxation for use of a foreign car 79 6.3. Double taxation 80 6.4. Administrative Services 80 6.4.1. Difficulties in obtaining information 81 6.4.2. Poor quality of the information available 81 5 Policy Department C: Citizens' Rights and Constitutional Affairs __________________________________________________________________________________________ 6.5. Additional requirements for EU citizens seeking to register to vote/stand as a candidate in European and municipal elections in another Member State 82 6.6. Issues with the recognition of diplomas from another Member State 83 7. REVIEW OF LEGAL OR PRACTICAL INSTANCES OF DISCRIMINATION 84 7.1. EU non-discrimination requirements in the context of free movement 85 7.2. Discrimination on grounds of nationality 87 7.2.1. Discrimination on grounds of nationality in accessing employment: 87 7.2.2. Discrimination on grounds of nationality in accessing education 91 7.2.3. Discrimination due to fees/price differences and discrimination in access to services 92 7.3. Discrimination on grounds of civil status/sexual orientation 94 7.3.1. Recognition of same-sex partnerships in Member States’ legislation 95 7.3.2. Recognition of same-sex couples in a civil partnership and free movement rights 96 7.3.3. Discrimination against same-sex couples in a civil partnership in exercising their free movement and residence rights 97 7.4. Discrimination on grounds of racial or ethnic origin 100 7.4.1. Discriminatory barriers for Roma in exercising their rights to residence 100 7.4.2. Roma inhibited from accessing employment in EU Member States 103 7.4.3. Discriminatory barriers for Roma in accessing education, housing, social assistance and services 104 8. COMPARATIVE OVERVIEW OF MEMBER STATES MEASURES TO COUNTER ABUSE OF RIGHTS 106 8.1. Overview of the Directive’s requirements on measures to counter abuse of rights 106 8.2. Comparative overview of national measures 109 8.2.1. Marriages of convenience 109 8.2.2. Fraud 111 8.2.3. Sanctions 112 8.2.4. Impact of these measures on the right to free movement and residence 112 8.2.5. Implementation of these measures in practice 113 9. OVERVIEW OF THE EXTENT OF THE REFUSAL OF ENTRY AND RESIDENCE EXPULSIONS IN MEMBER STATES 115 9.1. The Directive 115 6 Obstacles to the right of free movement and residence for EU citizens and their families- Comparative analysis __________________________________________________________________________________________ 9.2. Overview of existing data 118 9.2.1. Refusal of entry 118 9.2.2. Refusal of residence rights 119 9.2.3. Expulsions 121 9.3. Main problems identified 122 9.3.1. Economic grounds 122 9.3.2. Public policy and public security 124 9.3.3. Increasing level of protection 126 9.3.4. Vagueness of grounds justifying refusals of entry, residence and expulsions 127 9.3.5. Safeguards 128 10. CONCLUSIONS 130 11. RECOMMENDATIONS 134 11.1. Recommendations for the European Parliament and the European Commission 134 11.1.1. Recommendation 1: Collect more systematic and comparable information and data at Member State level 134 11.1.2. Recommendation 2: Enforce full transposition 134 11.1.3. Recommendation 3: Clarify terms 135 11.1.4. Recommendation 4: Address citizens’ complaints as a priority and supplement SOLVIT with a hotline 137 11.1.5.