EU Free Movement Rights for Family Members

By Dr. Theresa Rath, Attorney at Law

When a family moves across borders with an EU citizen

Where an EU citizen lives or works in another Member State, free movement law may also support the residence of their family. This is particularly important where a spouse, child or parent is not an EU citizen. The family member’s right may then arise directly from the family relationship and the status of the EU citizen.

This EU-law route differs from family reunification under the German Residence Act. It does not involve an ordinary German residence permit, but a derived right documented by a residence card. The applicable regime depends primarily on the nationality of the sponsoring person, their cross-border history and their current economic or other qualifying status.

My legal advice is limited to German law, including the EU-law rules applicable in Germany. I do not provide tax advice.

Who qualifies as a family member

The statutory category includes spouses and registered partners. It also covers children and other direct descendants of the EU citizen, their spouse or registered partner while they are under 21. Older descendants may qualify where they receive financial support from the relevant person.

Parents, grandparents and other direct ascendants may qualify where they are supported by the EU citizen or the citizen’s spouse or registered partner. Other relatives, foster children and durable unmarried partners may fall within the separate category of close persons. Their residence is not automatic and requires an individual assessment under Section 3a FreizügG/EU.

The EU citizen must have their own free movement status

The family member’s position generally depends on an EU citizen who has a qualifying status. The sponsoring person may, for example, be employed, self-employed, providing services or hold permanent residence rights. The family member must accompany or join that person for the purpose of establishing or maintaining family life.

Additional conditions apply where the EU citizen is economically inactive. The citizen and family must have comprehensive health insurance and sufficient resources. Where the sponsoring person is a student, the statutory family category is narrower. These requirements must not be applied indiscriminately to the families of workers or genuinely self-employed persons.

Entry, visas and the residence card

Third-country national family members may require an entry visa. EU law provides procedural advantages and the visa is issued free of charge. A valid residence card issued by another EU or EEA state may remove the visa requirement. The required document should be checked against the person’s nationality and planned route before travel.

For longer-term residence in Germany, the immigration authority issues a residence card of its own motion. Once the required information has been provided, the family member must receive confirmation without delay; the card must generally be issued within six months and should be valid for five years. The card does not create the right of residence. It documents a right that already follows from EU law.

German citizens and return cases

Family members of a German citizen are generally governed by the German Residence Act. FreizügG/EU may apply where the German citizen genuinely exercised free movement rights in another Member State and then returns to Germany with the family. A short visit or purely formal foreign registration is not sufficient.

The family’s actual life in the other Member State must therefore be documented. Residence cards, registrations, tenancy agreements, employment records, school or childcare documents and other evidence may establish genuine family life there. Without a qualifying EU return case, family reunification with a German citizen is governed by Section 28 of the Residence Act.

When family circumstances change

Death, departure or divorce does not invariably end a derived residence right immediately. Third-country national family members may retain residence under the conditions in Section 3(2) to (4) FreizügG/EU. Relevant factors include the period of prior residence, the person’s own economic activity, custody of children, particular hardship or a court-ordered right of access.

A permanent right of residence may arise after five years of continuous lawful residence. It is then no longer dependent on the sponsoring person continuing the original economic activity. Extended absences or interruptions may affect whether the qualifying period has been completed.

Assessment and preparation of the procedure

I first identify the family member through whom the residence right is derived, the relevant free movement category and whether family life is genuinely being established or continued across borders. The visa route, entry, residence card and supporting evidence can then be organised in a workable sequence.

For families living or working remotely across several countries, the assessment also records actual periods of presence and working locations. Questions governed by another country’s domestic immigration law require suitable local advice, which I can coordinate where necessary. Advice is available in German, English, Spanish, Italian and Portuguese.