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States that apply Directive 2004/38 to its own citizens

Immigration to European countries, don't post UK or Ireland related topics!

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Richard66
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States that apply Directive 2004/38 to its own citizens

Post by Richard66 » Tue Jan 12, 2010 4:27 pm

The UK applies reverse discrimination and does not consider its citizens as covered by Directive 2004/38 unless they are returning under certain conditions from another EEA state.

Not all EEA countries follow this, though, and extend the application of the directive to its own citizens, regardless of the fact that they have or not exercised treaty rights.

It would be interesting to know which countries treat its own citizens under the directive and which do not.

I believe this might raise awareness how the British approach is odious and must be changed as soon as possible.

Countries that apply the Directive to its citizens:

Portugal
Spain
France (almost 100%)
Italy
Belgium
Romania


Does anyone know of others?

Richard66
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Post by Richard66 » Wed Jan 13, 2010 10:40 am

Come on, immigration experts! Where are you? :)
Aiming at travelling to the UK with my wife and not with an EEA FP!

scrudu
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Post by scrudu » Thu Jan 14, 2010 1:28 pm

Ireland does the same as the UK. If an Irish citizen has exercised their treaty rights elsewhere in the EU and then returns to Ireland, they can be considered under the European Directive. If not, they are assessed under domestic law.

86ti
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Post by 86ti » Thu Jan 14, 2010 1:46 pm

scrudu wrote:Ireland does the same as the UK. If an Irish citizen has exercised their treaty rights elsewhere in the EU and then returns to Ireland, they can be considered under the European Directive. If not, they are assessed under domestic law.
But that's exactly what Richard is after. That returning citizens should be treated under EU law under certain circumstances has been clarified by the EuJ. Here it is about citizens who do not exercise a treaty right, i.e. the question is if the national immigration law is worse or as good or even better than EU law. And for the record: physically residing in another member state is not the only form of exercising treaty rights (Carpenter case).

scrudu
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Post by scrudu » Fri Jan 15, 2010 9:59 am

ok, got it. There's not much difference between the Residency stamps granted to spouses of EU/Irish citizens under the 2 laws.

==Only available to other EU citizens and Irish citizens who have exercised treaty rights elsewhere in EU
If an EU citizen or returning Irish citizen apply uder the Directive their spouse receives a "Stamp4EUFAM". Spouse must also apply for Re-entry visa. Together they allow freedom of travel and the right to work. It's granted for max of 5 years (dep on expiry of visa). The bonus attached to the "Stamp4EUFAM" is that other EU countries recognise this as being granted under the directive, so the non-EU spouse can travel EU-wide without the need to apply for Schengen visas. This visa MUST be granted as long as the marriage can be shown to be a "true marriage" (i.e. not marriage of convenience).

==Only applied to Irish citizens
Under Domestic law, spouses of Irish citizens receive a "Stamp4". Spouse must also apply for Re-entry visa. Together they allow freedom of travel and the right to work. It's granted for max of 5 years (dep on expiry of visa). The crap thing about the "Stamp4" is that other EU countries do not recognise as showing the holder to be a spouse of an EU citizen, so the non-EU spouse must apply for Schengen visas for travel within the EU (even when with EU spouse). This visa is granted at the discretion of the Dept of Justice and may be refused. Apparently there is no "right to join" for the spouse of an Irish citizen.

So spouses of other EU citizens or returning Irish citizens have far more rights than spouses of Irish citizens. Pretty crap situation.

Richard66
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Post by Richard66 » Fri Jan 15, 2010 4:35 pm

Thanks so far. I would say a list of countries that discriminate against its own nationals would be:

UK
Ireland
Holland
Denmark
Germany
Austria
Aiming at travelling to the UK with my wife and not with an EEA FP!

Wanderer
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Ireland

Post by Wanderer » Fri Jan 15, 2010 8:17 pm

Richard66 wrote:Thanks so far. I would say a list of countries that discriminate against its own nationals would be:

UK
Ireland
Holland
Denmark
Germany
Austria
So, basically all the countries the desperados head for! Apart from Austria of course! Been there twice, all I can remember is being told 'alles geschlossen' - 'everything is closed...'
An chéad stad eile Stáisiún Uí Chonghaile....

acme4242
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Post by acme4242 » Sun Feb 21, 2010 10:38 am

Hi,

In the case of Italy, or the others, do you have any links to National law, or a policy instruction, where it says they give at least equal 2004/38/EC rights to their own citizens family, e.g. the EU1 card (or in the case of Ireland it would be called a 4EUFam) to its own citizens under national law. I need it as support info for a little blog about reverse discrimination.

http://irelandsreversediscrimination.wordpress.com/
Italy give the spouse of Italian Citizens the 4EUFam card under national law, thereby removing reverse discrimination, and allowing freedom of movement to Italian families. Ireland has chosen not to give their own citizen these equal rights, and have not given a proper explanation or justification why.
EDIT:
I just found this survey
http://emn.ypes.gr/media/16787/rights%2 ... tizens.doc

Query on rights of nationals vs rights of EU-citizens Directive 2004/38

answers e.g.

Portugal
=====
They have the same rights. According the Article 3º, n.º 5 of the Act n.º 37/2006 , of 9th of August (Transpose of 2004/38/EC into national law), the regulations of this law applicable to family members are extendable to family members of citizens of Portuguese nationality, regardless of their nationality.
http://www.sef.pt/portal/V10/EN/aspx/le ... nha=4559#0

Law n.º 37/2006, August 9
Rules the right of citizens of the European Union and their families to move and reside freely in the national territory and transposes to the internal legal order the European Parliament and Council Directive n.º 2004/38/EC of 29 April.

Article 3.º
Beneficiaries

5. Regulations of this law applicable to family members are extendable to family members of citizens of Portuguese nationality, regardless of their nationality.
Greece
=====
In order to avoid possible discriminations we accept that third country nationals who are family members of Greek citizens enjoy the same rights with the family members of EU citizens.

Slovenia
======
Family members of Slovenian nationals enjoy equal rights to family members of EU nationals. In Slovenian aliens legislation both categories are treated equally and granted rights as stipulated in the Directive 2004/38/EC for family members of EU nationals. We require both categories to have sufficient means of subsistence and health insurance.

Richard66
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Post by Richard66 » Mon Feb 22, 2010 10:21 am

There you go!

D.Lgs 30/2007:
Articolo 23
Applicabilità ai soggetti non aventi la cittadinanza italiana che siano familiari di cittadini italiani

1. Le disposizioni del presente decreto legislativo, se più favorevoli, si applicano ai familiari di cittadini italiani non aventi la cittadinanza italiana
Article 23 D.lgs 30/2007 says that if more favourable this law [the transposition of Directive 2004/38] appies to family member of Italian citizens
Aiming at travelling to the UK with my wife and not with an EEA FP!

Obie
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Ireland

Post by Obie » Mon Feb 22, 2010 10:50 am

Apparently, the UK state that regulation 9 that they transposed in their EEA regulations for surinder singh cases, does not apply to durable partner, or other family members as provided for in Article 3(2) of directive 2004/38EC, which is another discrimination in itself.

A non-EEA friend of mine, who was lawfully resident in another memberstate under the directive, was told he is not covered in the UK by surinder singh, as he is the sister , and not family member.
Black life matters.

86ti
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Post by 86ti » Wed Mar 03, 2010 2:58 pm

Richard66 wrote:Thanks so far. I would say a list of countries that discriminate against its own nationals would be:

UK
Ireland
Holland
Denmark
Germany
Austria
Well, I would say you always have to look at the small print too. In Austria, for example, family members will get the settlement permit in their own right.

acme4242
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Post by acme4242 » Mon Mar 15, 2010 8:39 am

So, I think the table looks like this, after adding info from
http://emn.ypes.gr/media/16787/rights%2 ... tizens.doc

Reverse discrimination, in so far as nationals of a Member State who have never exercised their right of freedom of movement would not derive rights (via Surinder Singh Ruling) of entry and residence from Community law for their family members who are nationals of non-member countries.

Some Union state grant equal rights to their own by automatically applying 2004/38/EC rights to their own. Some don't.

On the side of Reverse discrimination against their own,
and not automatically granting 2004/38/EC rights to their own we have
UK
Ireland (note Irish are not excluded in law, but are in policy)
Netherlands
Denmark
Germany
Austria
Bulgaria
Latvia
Lithuania
Slovak Republic
Sweden
Estonia
Poland

On the side of equality at least towards their own.
States that apply Directive 2004/38 rights (minimum) to its own citizens
without any requirement of prior residence in another union state
Portugal
France
Italy
Belgium
Romania
Greece (note Greeks are excluded in Law, but are equal by policy)
FinlandHungary
Slovenia
Spain (clarified and confirmed by ROYAL DECREE 1161/2009)
Cyprus (discrimination overturned by Cyprus Court Case 1241/06)
Malta
Luxembourg
Czech Republic

extra info
http://irelandsreversediscrimination.wo ... imination/
Last edited by acme4242 on Fri May 03, 2013 12:07 am, edited 20 times in total.

86ti
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Post by 86ti » Mon Mar 15, 2010 9:22 am

[It's a sticky now. Thanks!]
Last edited by 86ti on Tue Mar 23, 2010 8:07 am, edited 1 time in total.

acme4242
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Post by acme4242 » Thu Mar 18, 2010 7:32 am

While This thread is concerned about discrimination between own vs other EU nationals

But there are other types

A Guide to the Rights of family Reunification in Ireland
Irish Citizen: No right
Non-EEA spouse of Irish Citizen: No right
EU Citizen: yes, automatic right
Non-EEA spouse of EU Citizen: yes, automatic right
Non-EEA Citizen (green card holder): yes, automatic right
Non-EEA Citizen (work permit holder): yes, after 12 months
Refugee: yes, automatic right

So in the case of Ireland
A NON-EEA resident has a legal right of family Reunification,
but if he decides to apply for Irish Citizenship, and becomes an Irish Citizen, he loses this right.
Last edited by acme4242 on Fri Apr 16, 2010 3:18 am, edited 1 time in total.

Richard66
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Post by Richard66 » Fri Mar 19, 2010 10:07 am

If the author may vote, I say, yes, Sticky!

I would say reverse discrimination is a violation of free movement rights, as they impede a national of an EU state who marries a citizen of a third country and who has not exercised treaty rights from doing so in the future. If "I", who am Dutch and want to go to work in Germany would I marry a turk? :?

One thing that impresses me in the UK is that the general public does not know this and express great surprise that family members of British citizens are little more than chaff. My own cousin, whom I believe to be anti-EU (anti-Euro yes, I know he is and anti illegal immigration into the bargain) is one of that league, but when I mentioned my wife's need for a visa (EEA EP is took difficult a term)...

My own MP, beleive me or not, was unaware of this treatment of family members: I have it in writing!

I have even sent a letter to Cameron on the subject, but, seeing how the going goes, maybe I should send a copy to Brown.

Mind you, a copy of all this correspondence finds its way to the European Commission and the European Parliament! :D
Aiming at travelling to the UK with my wife and not with an EEA FP!

Richard66
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Post by Richard66 » Sat Mar 20, 2010 3:03 pm

Sapin does not apply reverse discrimination:

http://www.mir.es/SGACAVT/derecho/rd/rd240_2007.html

REAL DECRETO 240/2007, DE 16 DE FEBRERO, SOBRE ENTRADA, LIBRE CIRCULACIÓN Y RESIDENCIA EN ESPAÑA DE CIUDADANOS DE LOS ESTADOS MIEMBROS DE LA UNIÓN EUROPEA Y DE OTROS ESTADOS PARTE EN EL ACUERDO SOBRE EL ESPACIO ECONÓMICO EUROPEO, (BOE núm. 51, de 28 de febrero), EN SU REDACCIÓN DADA POR EL REAL DECRETO 1161/2009, DE 10 DE JULIO (BOE núm. 177, de 23 de julio)


Disposición final tercera. Modificación del Reglamento de la Ley Orgánica 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en España y su integración social, aprobado por Real Decreto 2393/2004, de 30 de diciembre.


Dos. Se introduce una disposición adicional vigésima:

«Disposición adicional vigésima. Normativa aplicable a miembros de la familia de ciudadano español que no tengan la nacionalidad de un Estado miembro de la Unión Europea o de un Estado parte en el Acuerdo sobre el Espacio Económico Europeo.


1. El Real Decreto 240/2007, de 16 de febrero, sobre entrada, libre circulación y residencia en España de ciudadanos de los Estados miembros de la Unión Europea y de otros Estados parte en el Acuerdo sobre el Espacio Económico Europeo, será de aplicación, cualquiera que sea su nacionalidad, y en los términos previstos por éste, a los familiares de ciudadano español, cuando le acompañen o se reúnan con él, y estén incluidos en una de las siguientes categorías:

a) A su cónyuge, siempre que no haya recaído el acuerdo o la declaración de nulidad del vínculo matrimonial, divorcio o separación legal.

b) A la pareja con la que mantenga una unión análoga a la conyugal inscrita en un registro público establecido a esos efectos en un Estado miembro de la Unión Europea o en un Estado parte en el Espacio Económico Europeo, que impida la posibilidad de dos registros simultáneos en dicho Estado, y siempre que no se haya cancelado dicha inscripción, lo que deberá ser suficientemente acreditado. Las situaciones de matrimonio e inscripción como pareja registrada se considerarán, en todo caso, incompatibles entre sí.

c) A sus descendientes directos, y a los de su cónyuge o pareja registrada siempre que no haya recaído el acuerdo o la declaración de nulidad del vínculo matrimonial, divorcio o separación legal, o se haya cancelado la inscripción registral de pareja, menores de veintiún años, mayores de dicha edad que vivan a su cargo, o incapaces.

d) A sus ascendientes y a los de su cónyuge, siempre que no haya recaído el acuerdo o la declaración de nulidad del vínculo matrimonial, divorcio o separación legal, que vivan a su cargo, siempre que en la fecha de entrada en vigor del Real Decreto 240/2007, de 16 de febrero, sobre entrada, libre circulación y residencia en España de ciudadanos de los Estados miembros de la Unión Europea y de otros Estados parte en el Acuerdo sobre el Espacio Económico Europeo, fueran titulares de una tarjeta de familiar de residente comunitario en vigor o susceptible de ser renovada, obtenida al amparo del Real Decre­­to 178/2003, de 14 de febrero, sobre entrada y permanencia en España de nacionales de Estados miembros de la Unión Europea y de otros Estados parte en el Acuerdo sobre el Espacio Económico Europeo.

2. La reagrupación familiar de ascendientes directos de ciudadano español, o de su cónyuge, se regirá por lo previsto en la sección 2.ª del capítulo I del título IV del presente reglamento.»
Aiming at travelling to the UK with my wife and not with an EEA FP!

bdb303
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Post by bdb303 » Tue Mar 30, 2010 9:56 am

Holland should be removed from that list. Although the Dutch certainly discriminate against their own nationals when they are living in the Netherlands, 2004/38/EC rights is valid for Dutch citizens who have exercised their treaty rights (i.e. are living and or working abroad in another EU country).

Richard66
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Post by Richard66 » Tue Mar 30, 2010 10:03 am

That is, they apply reverse discrimination. Returning citizens are covered by the Surinder Singh (and others) ruling of the European Court of Jusatice.
Aiming at travelling to the UK with my wife and not with an EEA FP!

acme4242
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Post by acme4242 » Sat Apr 03, 2010 4:03 pm

Reverse discrimination, in so far as nationals of a Member State who have never exercised their right of freedom of movement would not derive rights of entry and residence from Community law (via Surinder Singh Ruling) for their family members who are nationals of non-member countries.
Reverse discrimination occurs when Holland gives their own citizens a treatment that is less favourable than the treatment Holland gives to other citizens, provided for in EC law.
Compare this to other EU states, such as Italy who treat their own citizens with equality by default.

Holland implemented discrimination against its own citizens as follows

* Discrimination of Nationals in comparison to EU citizens (second class EU citizens)
* Discrimination of Nationals in comparison to Nationals with dual citizenship or a migration history in another EU state (second class Nationals)

Furthermore, Dutch citizens are again not only treated worse than EU citizens or fellow Dutch Nationals with dual EU citizenship or a EU migration history.
But in some cases even worse than third-country nationals: Since Oct 2005, the latter have been able to invoke the Family Reunification Directive, which guarantees a common right to family reunification and is partially opposed to the application of the latest restrictions (such as in the case of children joining their family in the host country and the income requirement)

Richard66
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Post by Richard66 » Sun Apr 04, 2010 3:49 pm

* Discrimination of Nationals in comparison to Nationals with dual citizenship or a migration history in another EU state (second class Nationals)
Could you please elaborate on that? I have not found out information on that, so I cannot understand what this means.
Aiming at travelling to the UK with my wife and not with an EEA FP!

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