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Freedom of Movement - Unique Immigration Cases within Germany & EU


Alexander Baron von Engelhardt


August 23, 2022


11:14 AM

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Navigating visa and immigration requirements in Germany can be complex. Compared to other European Union nations, Germany maintains a unique immigration framework of requirements and also extends to important matters after obtaining a visa -- i.e. residency. In EU law obtaining residency often translates to "Freedom of Movement". Learn more about some of the specific requirements for Freedom of Movement in the following niche areas, including: Financial Requirements, Same-Sex Marriage, Child Dependency and non-working Spouse Rights.

Financial Income Requirements to Maintain Residency Status in Germany

OVG Lüneburg, with its decision of 03 March 2022 (re 13 ME 507/21), clarified which standards are applicable for the criterion of "sufficient means of subsistence" to enjoy the freedom of movement in Germany (§4 FreizügG i.c.w. art. 7 I lit. b) of Directive 2004/38/EC - Freedom of Movement Directive or Union Citizens Directive). This decision is vital for your residence in Germany.

Case Study of a Polish National Living in Germany

The applicant is a Polish national who is not gainfully employed in Germany, has sufficient health insurance coverage, has been living in Germany since 2012 and has financed herself with welfare benefits (pursuant to SGB II and SGB XII). Since immigration noticed her loss of freedom of movement, she has been off welfare for nine straight months. When immigration sees the end of their freedom of movement, it is comparable to a residence permit being cancelled.

Determining Sufficient Income

The court determines a three-step testing for the authorities whether or not the family's means of subsistence are met. It is absolutely incorrect to strictly demand the proof of fixed amounts that a union citizen needs to demonstrate.

In the first step, the union citizen is vetted with the standard financial requirements to live in Germany based upon welfare rules. There are no restrictions on the source of means for their livelihood and his direct relatives (ECJ judgment of 19 October 2004 - re C-200/02 - [Zhu and Chen]; affirmed with the judgment of 16 July 2015 -re C-218/14 - [Singh u.a.]) despite the necessity of permanently and reliably receiving these funds. These sources can be own savings, insurance-like benefits (e.g., unemployment benefits, aka Arbeitslosengeld), and support from relatives. Receiving other benefits from the state, except the "harmless" just mentioned, clearly indicates that your means are insufficient.

In the second step, when the first step fails, the union citizen has to receive the chance to prove in a second step that this citizen has individually lower needs and that these needs are covered and how so, because an automatic expulsion is prohibited.

If these two steps are unsuccessful, then the extent of the (foreseeable) recourse to basic security benefits or social assistance benefits in Germany must be quantified based on art. 14 III of Directive 2004/38/EC have to be determined. Immigration has to balance this person's individual need for social security against any unreasonable requirement of welfare. To assess whether a foreigner makes unreasonable use of social assistance benefits, following details will be examined:

• whether the person concerned is experiencing temporary difficulties; • the duration of the stay; • the personal circumstances of the person concerned; and • the amount of social assistance granted to him.

In particular, a long-lasting and/or full receipt of social support is a strong indication that the claim for welfare is unreasonable. In this situation, the person concerned does not have sufficient means of subsistence. Because a long-standing, full claim to social assistance benefits means an unreasonable burden on the national social system as a whole if it were fully opened to all Union citizens. A "free movement of social benefits" is not wanted.

Same-Sex Spouse for German Immigration

On January 11, 2018, ECJ (re >C-673/16) had to define who is considered a spouse for immigration purposes in Germany. Must it be the traditional combination of man and woman or can it be a spouse of the same sex? What about the newest legal phenomenon of a third gender? The case is about a homosexual couple, Relu and Robert, living in Romania.

Case Study of a Same-Sex Marriage for Immigration in Germany

Relu, a Romanian citizen and his spouse Robert, an American, lived together for four years in the States before they married in Brussels in 2010. In this year, they applied for the necessary papers so Robert could reside and work in Romania permanently. They based their motion on the European Directive 2004/38/EU of the Freedom of Movement which allows the spouse of a European national to follow the European into his country of sojourn. Romanian authorities however denied their application because Romania does not recognize homosexual marriages. After fighting their way through lower level courts, the Romanian Constitutional Court presented this case to the European Court of Justice for clarification.

The legal issue in this case is not the legalization of persons of the same gender but of the freedom of movement. Though a Member State may or not allow homosexual relationships, this country still has to honor the freedom of movement of European citizens and their direct family members.

ECJ held that the term "spouse" does not refer to any specific law of a Member State. Based on this, this word has to be interpreted autonomously - independent of any national law. "Spouse" relates to a relationship based on marriage but does not refer to a specific gender or place of marriage. In consideration of the current development of societies inside the European Union, the court notices that homosexual relationships are being more and more accepted. As of January 2018, 13 Member States of the Union accept a marriage between two persons of the same gender.

Next to that, the word "spouse" is necessarily related to family life, which is equally protected in the Charta of Human Rights of the European Union and in the European Convention on Human Rights. The European Court on Human Rights has found that a same-sex couple may also have its family life. A homosexual couple is entitled to have the same legal recognition and legal safeguard. Differing between the traditional family and a couple with same sex would incorrectly discriminate by the sexual orientation.

Based on all this, ECJ holds that the term "spouse" pursuant to the directive can be a couple consisting either of the same or a different sex. This is also applicable when the European citizen returns to his home country with his non-European spouse - just like in this case of Coman vs Hamilton.

Deriving Immigration Status from a Child

When is the non-European parent of a child having European citizenship entitled to enjoy the freedom of movement - i.e. EU immigration status? Does the child have to live in the target country, or is it just the parental relationship that grants this right relevance? The Federal Administrative Court in Leipzig clarified this intriguing question in its judgment of 23 September 2020 (re 1 C 27.19).

Case Studies determining Immigration Status in the European Union

Kosovar Father of a Hungarian Child Claimed Derived Freedom of Movement

The plaintiff, a Kosovar citizen, is the father of a minor child born, who has Hungarian citizenship through his mother with whom the plaintiff lives. Both parents have custody over the child and are not married. After the child's birth, the plaintiff unsuccessfully applied for a residence card as a family member of a Union citizen child, documenting the freedom of movement in accordance with §5 I FreizügG.

VGH referred Plaintiff to Residence Permit on Humanitarian Reasons

This court denies the freedom of movement because a derived right of residence in favour of the third-country national family member of a citizen of the Union exists only if necessary. Such necessity would exist if the non-European could not apply for a national residence permit. In this case, such possibility existed – in the court’s understanding. It believed that the father could have applied for a permit for humanitarian reasons (§25 V AufenthG). Although the plaintiff had never applied for such a permit, this remains true. Immigration authorities also agreed to grant it during the proceedings. In the meantime, the plaintiff married the child's mother, and a residence card was issued to him. Now, he is only seeking a court ruling that he has been granted a right of residence derived from his child.

BVerwG Collects Decision of OVG

The Federal Administrative Court referred the case back to the Administrative Court for a new decision. Its overruling opinion is that art. 21 TFEU protects the rights of Union citizens to freedom of movement. It also provides family members of a Union citizen entitled to freedom of movement with a derived right of residence, even in certain cases that are not directly covered by Directive 2004/38/EC (Union Citizenship Directive).

Deriving Right of freedom of Movement when Sponsor has his own Right

If a third-country national invokes a right of residence derived from the freedom of movement for Union citizens to lead a normal family life in a second EU Member State, this sponsor himself must be personally entitled by his own virtues. A right to freedom of movement of the child derived solely from the mother was not sufficient for this purpose. The child’s own right of residence exists only if sufficient means of subsistence are available (Article 7.1(b) of the Union Citizenship Directive).

Immigration Rights for Family of a Non-Working Parent in the European Union

The local immigration office denied the Kosovar father of a Romanian child the right to work and so hindered the baby to apply its right of freedom of movement. Can this be? The Federal Administrative Court clarified the rights and duties in this case with its verdict from September 23, 2020 (re BVerwG 1 C 27.19).

The Kosovar plaintiff wants to enjoy the freedom of movement and requests the issuance of a residence card. First, he was married to a German but after a divorce, he married a Romanian lady with whom he was going to have a joint child. His new wife was only pregnant and had not yet given birth. Based upon this communication, immigration shorted his permission to be in Germany. His presence, however, was tolerated without granting him permission to work.

After the birth of his child, he applied for the issuance of a residence card documenting his freedom of movement. He claimed to be entitled to this right as the father of a European citizen. Though normally, the Union citizen is to sponsor the third-country relative, the plaintiff nevertheless is nevertheless entitled to freedom of movement. He is living together in the family union with his wife and child. The sources of income were irrelevant because the child derives his freedom of movement from his mother.

Immigration however retrospectively shorted his residence permit based on a family reunion to a German because he was divorced and not yet the father of a European child. The court held that a right for residence, derived from art. 21 TEU may not be denied or refused because immigration did not grant a parent a work permit. When a parent may not work, the child’s financial livelihood is not secured. Lacking the funds to support one’s life cannot be used to refuse the freedom of movement when the sponsor himself cannot support himself but the sponsored relative could work. On the bottom line, this judgment forbids any kind of interference of a potential entitlement to live in a European country – be it for a European citizen or its direct relative. The potential, in this case, was that the plaintiff was a father-to-be. The not-yet-born child as well has the right to normal family life in another European Member State. Prohibiting a parent of a European child would nullify any such right and cannot be accepted.

Alexander von Engelhardt is an English-speaking lawyer in Berlin. He specializes in immigration and business law.

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