Ægteskabudengrænser.dk

I would like to start this forum with the consecuences of the Metoch case in the danish inmigration law, because it seems like it could help in this problem.
I want you consider this article, and write your opinions:
http://www.brusselsjournal.com/node/3457
Thanks!

Like most of the articles, which have been written in the danish press about the Metock case, unfortunatly this article is rather full of misunderstandings and lack of knowledge about the EU-law.

The Metock ruling only changed one little detail in the right to free movement in EU. As stated in the article, it removed the demand, that the non-EU citizen should previously have had a residence permit in another EU-country (not permanent residence permit, just residence permit), before falling under EU law.

However, it was only Denmark and Ireland and possible Great Britain (not really sure), who had made this demand before the Metock ruling. All other EU-memberstates already interpreted the right to free movement in the same way, that the EU-court said, that it should be interpreted in the Metock ruling.

Even before the Metock ruling, thousinds of danish citizens had moved to Sweden with their spouses after EU-law, even though their spouses did not have a residence permit in Denmark, and could not get such a residence permit because of the stricht danish law.

For those thousinds of danish citizens the only consequence of the ruling in the Metock case was, that they could now move back to Denmark again and bring their spouses with them after EU-law without having to wait for the swedish authorities to first issue a residence permit to their spouses.

Residence permits after EU-law have to be issued in no more than 6 month, but usually the swedish authorities do it much faster, sometimes in only a few weeks or even days. So this change was hardly revolutionary.

What happened in Denmark was, that the EU-court became a very convenient scapegoat for the politicians, who had "forgotten" to tell the voters about the rights, that they had given to all EU-citizens to move to Denmark with their family, and which was much more liberal than the rules, that danish citizens had to follow, if they wanted to live in Denmark with their spouses from non-EU countries.

It is true, that the right to use EU-law to bring your familiy with you, when you move back to your own country after residing in another EU-country, is something that is not written in the directive, but was stated by the EU-court in previous rulings.

However these rulings date back to before 2002, when the danish immigration law was tightened, so the danish politicians knew about this all the time. In 2003 Peter Skaarup from Dansk Folkeparti asked former immigration minister Bertel Haarder, if it could really be true, that the danish law could be "bypassed" in this way, and got a perfectly correct answer about the situation. So both the government and its supporting party were well aware of this situation all the time.

What they did to limit the use of the right to free movement by danish citizens in Denmark were 2 things:

1) In 2004 former immigration minister Rikke Hvilshøj decided to tighten the danish interpretation of the right to free movement, so that the right to bring your family with you after returning from another EU-country was limited to those, who had not only recided but also worked in aother EU-country. This excluded among others all the danish people living in Sweden but still working in Denmark.

2) When people asked the danish authorities about the possibilities to use EU-law in Denmark, they were given greatly misleading answers. It has however never been proven, that this happened after dictate from the government. So it is possible also, that the employes in Udlændingeservice were either completely ignorant of the rules or just trying to help the government "protect" its policy. The danish ombudsmand wrote a very critical report about the situation, but wasn`t able to place a responsibility with anyone.

After the ruling in the Metock case last summer, both of the above attemts to stop danish people from using EU-law for the purpose of bringing their spouses to Denmark, was terminated.

People asking for information about the EU-law at Udlændingeservice are now mostly given correct information, and the danish interpretation of the right to free movement was brought back in line with the directive, so that it now includes not only people working in the same EU-country, where they reside, but also students and people with sufficient means, like all the cross-border workers.

The result has been, that the number of residence permits to family members issued after EU-law in Denmark, has rised from about 100 pr. year to somewhere between 300 and 500 pr. year, which should be compared to the 3.500-4.000 residence permits, which are still issued annually to family nembers after the national law.

That the number hasn`t rised any more than that, might be due to a number of reasons, about which the main one is probably the difficulties, that are still involved in moving to another country 2 times, and particularly if you work so far from a border, that this also means finding a new job.

Hello, Can somebody please help? I am from Holland and I want to find out how come, this, see below, newspaper, said, that we only need to stay 3 weeks in a other member state, than our own?

lets say we are in Denmark for tree weeks and we can prove that by having had a job for tree weeks there, than we go back to out native state and that, should then be enaugh to get a EU recidance for my Afrikan husband? Is it true that it is only 3 weeks, and who can tell me were to find that in written Law?

I read this here, but the Dutch say that it has to be 6 months!


http://www.brusselsjournal.com/node/3457

Danish public radio dr summarized the situation after the Metock case ruling like this:

Until now, spouses or children who wanted to use family reunification had to have a permanent residence permit in another eu country prior to their arrival to Denmark. The ECJ removes this condition.
A Dane who comes back from abroad together with his non-eu spouse had to have been working as an employee or freelancer during his stay abroad. This condition has been reduced by the ECJ to a period of just a couple of weeks.

Upon his return to Denmark, the Dane had to be able to support himself and his or her spouse. This condition was already removed in December last year due to the ruling in the Eind case, also delivered by the European Court of Justice.

Moreover, the eu allows family reunification without having to consider the Danish rules like the minimum age of 24, the presence of stronger ties to Denmark than to the home country of the spouse, good living conditions and sufficient income, financial guarantees and the nephew-niece rule.
their arrival to Denmark. The ECJ removes this condition.

Pleas help us, becouse we are being taken by a ride, by our governement!

Greeting from Zandvoortzandvoort

This is confucing me, for in this message somebody says, that you have to stay in a other member state about 10 weeks. Who knows the real time????? 3 weeks, 10 weeks or 3 months and 1 day , or 6 months? I Dont know it anymore, and need to find the truth about it?


I cut this, out of this link. viewtopic.php?f=17&t=5226

Unfair, yes. Even a number of human rights organisations, both nationally and internationally, have criticized the Danish government for those laws. To no avail since this has become a key issue in the government coalition's election promises.

Then again, just consider how much red tape your husband would meet, should you choose to live in your home country of Indonesia. It's not necessarily any easier there. Lots of countries have made it difficult to migrate. Immigrants are easy scape-goats in today's society, whether it be in Denmark or Indonesia.

In any case, luckily Denmark is part of the EU. And as such the door is open to avoid the national Danish laws. You and your husband simply have to move to another EU or EEA country such as Norway for a short period of time, such as 10 weeks. Then you can return to Denmark using the principles of free movement within the EU and EEA and your Danish husband and yourself will once and for all be free of all the Danish regulations in this regard and you can apply as the spouse of an EU citizen instead of that of a Danish citizen. Which makes life a lot easier. You will get a 5 year residence card which after 5 years in Denmark will become permanent. And your husband won't have to put up with a huge amount of money as a guarantee to the government.

About making public protests: These have been made in the past, even ÆUG, the society behind this forum, has made public protests at the city hall square in Copenhagen. And nothing much has come of it, unfortunately.

Dear zandvoortzandvoort

I understand your confusion and part of the problem is, that there are no strict rules, since the right to bring your familiy with you, when you move back to your own country after residing in another EU-country is based only on various rulings by the EU-court.

However there have been rulings by the court, that 8-10 weeks of work is enough to have achieved status as worker in another EU-country, so this can in my opinion be considered pretty sure. I.e. if a dutch citizen move to Denmark (or Germany or another EU-country) and work there for at least 8-10 weeks, and if the work is not insignificant i.e. at least 10-12 hours pr. week, then the dutch citizens will have rights after directive 2004/38 EU upon his return to Holland. Including the right to bring his spouse and other family members with him, if he lived with these family members in Denmark.

If however the dutch citizen move to Belgium and continue to work in Holland, or if he move to Denmark and live here as a retiree, there are no reel guidelines as to how long such a stay must be, before it can be considered an actual use of the right to free movement.

It is perhaps easiest to understand this, if we look at an eksamples:

A is a dutch retiree and move to Greece for a periode of 3 month in the summer season. In Greece he rent a small furnished apartment containing 1 room and a kitchen on a contract lasting for 3 month. Upon his return to Holland he stay again in the same house, which he left before going to Greece. During his stay in Greece, the house in Holland was rented out on a contract lasting only 3 month.

It could in this situation be argued, that A´s stay in Greece was a vacation and not an exercise of the right to free movement i.e. the right to live in another EU-country. And on this ground, the dutch authorities might claim, that the spouse of A, who is from a non-EU country, does not have a right to residence in Holland according to directive 2004/38 EU.

If however A sold his house in Holland and rented an unfurnished 3-room apartment in Greece on a time unlimited contract, if A opened a greek bank account and if he signed up for insurances in Greece, indications are already much higher, that the center of his life interests were in Greece or in other words that he had moved there.

If A also stayed in Greece for 5 month rather than 3, he needed to register himself with the greek authori-ties and prove his financial means, and if he successfully did so, it is now very difficult for the dutch authorities to claim, that A did not exercise his right to free movement in Greece, but was only on vacation.

About staying only 3 weeks in another EU-country, even as a worker, there have now been cases in Den-mark, where people were denied rights as EU-citizens in that situation. So the general recommendation of ÆUG is 8-10 weeks, if you are a worker or looking actively for a job, but preferably more than 3 month if you stay in the country as “person with sufficient means” i.e. border worker or retiree.

We do not know for sure, how long a retiree or a border worker need to live in another EU-country to have his rights recognized by danish authorities, but we do know, that the circumstances surrounding the stay is more important than its length.

The practice of the dutch authorities I am for quite obvious reasons not aware of, but they should follow the same guidelines as the danish authorities, and these guidelines were layed out by the EU-commission in the summer of 2009.

There is an organization like ÆUG in Holland also, so maybe you can some more country specific information from them?

http://www.buitenlandsepartner.nl/forum ... .php?f=197

Thank you very much for your lengtly answer. I myself are an adviser on the site you recommendend, buitenlandsepartner.nl, and we dont know it too. We were courieus about the 3 weeks in the artikel that I pointed out and commented with the link to that artikel. I am so sorry that you too, dont know, were the tree weeks are coming from? I wil come back with more questions? We know a lot on that site and other site,s, but cant seem to find an answer!

Just prior to the ruling in the Metock case in july 2008 there was a lot of media and political debate in Denmark about the EU-rules, because one of the major newspapers had reveiled, that people who phoned the danish immigrations service and asked about the EU-rules were greatly misled.

And as part of this debate, the immigration service reported, that they had never refused an application on the grounds, that the danish citizen had stayed to short in the other EU-country, and that some applications had been approved, where the stay had been as short as 2-3 weeks.

This was however unacceptable to the danish government, and at the same time as intensive negotiations took place between the danish government and the EU-commission, the immigrations service was apparently forced to tighten its interpretation of the directive. Which by the way seen to have happened once more after a policical agreement in late 2009.

So this is presumably, how the 3 weeks got into the equation, but this is not a practice, that is being followed in Denmark anymore. On the contrary there are now published decisions, where a 3 week stay was deemed to short.

What we all have to lean on is the report, that the commission made in the summer of 2009 about interpretation of the directive. And here a 3 week stay at a hotel is pointed out as an example of "abuse of rights".

Obviously the danish and dutch government will try to enterpret the rules as strictly as possible, but in the end, the EU-court will have the last word, if more cases are put forward to the court.

Thank you again, are there any cases in courd about the lenght of time, needed?

Not that I know of. Also the center of interest for ÆUG is more on the quantity of documentation, that people are required to present, and why there are so relatively many rejections in Denmark currently (more than 50%).

From your link http://www.brusselsjournal.com/node/3457 it is obvious that the “just a couple of weeks” is a journalist’s interpretation – and as I suppose most of us are aware of, journalists are seldom over-cautious in their interpretations and very rarely schooled in juridical interpretation. In other words the “just a couple of weeks” from this journal’s reference of what a journalist in the Danish Radiobroadcast may or may not have said/written (it does not appear to be an exact quote), has no legal value whatsoever. That is: no-one can rely on it in court.

What you CAN rely on are the decisions in C-139/85 (12 hours/week), C-444/93 (8-12 hours/week). In C-14/09 it was established that rights to salary during holidays, illness and the amount of hours/week plus whether the employee was under collective agreement are relevant criteria for establishing whether or not the employee is an employee in the sense of the EU-legislation. Further it was established in C-413/01 that 10 weeks of employment were sufficient to render the employee an employee in the sense of the EU-legislation.

@fundiver: you can find links for them on: http://www.nyidanmark.dk/da-dk/Ophold/f ... bejdstager

I joined a meeting yesterday, where Immigration Service informed about the rules. In accordance to this very topic, the EU-expert Michael Bernbom replied, that the length is not a factor to them. They focus on the documentation first of all. He added, that if a person has been staying in another member state for 6 month or more, then of course time length is a factor. But for short stays, it is not.

Thank you very much. Do you people also know what are the required documents? And what cases are denied, if they do look at the time period?

Here in Holland, the highest courd dicided, that in the case of a couple that stayed in a hospital, but both of them, never legally registered in Belgium whule in the hospital there. That just the fact that they could prove that the EU citizen had been admitted there for 5 months, and his spouse were in the gast house, they had proven that they had had the right to be there and to the courd, they had proven it too. But they never regestered with the autorities! That was not a problem. In my casus, were my man was not with me in the other member state, they demanded, that had he registered in Belgium were I was at the time, he had than proven to have that right. He was there with me but not for long, 3 weeks and it was dinied. Now I have to start all over again, and then with the two of us.

Did you people hear about this case? Read further, it has coused expectations here, but I dont think that they will grant that right to those whom have not used their rights to free movement and labor! Becouse it was agreed that way and why should de HvJ then approve of it now? I am intrested in hearing your opinions?

Reference for a preliminary ruling from the Tribunal du
travail, Brussels (Belgium) made on 26 January 2009 —
Gerardo Ruiz Zambrano v Office national de l’emploi
(ONEM)
(Case C-34/09)
(2009/C 90/15)
Language of the case: French

http://eur-lex.europa.eu/LexUriServ/Lex ... 010:EN:PDF

Questions referred
1. Do Articles 12, 17 and 18 of the Treaty establishing the
European Community, or one or more of them when read
separately or in conjunction, confer a right of residence
upon a citizen of the Union in the territory of the
Member State of which that citizen is a national, irrespective
of whether he has previously exercised his right to move
within the territory of the Member States?

I am not sure, that I really understand the content of that case in the EU-court, to which you refer. So perhaps some more explanation or a link to a more complete text would be a good idea.

Regarding your own case, it is one of the conditions for bringing your spouse with you to Denmark after EU-rules, if you are a danish citizen, that your spouse actually lived with you in the other EU-country. Moreover the couple is required to move to Denmark at the same time.

So if you want to use EU-rules for the purpose of family reunification in your own country, you need to be able to prove the presence of your spouse in the other country, and the spouse can therefore not move directly from his home country to your country. In your case to Holland.

So it sounds to me, like the dutch authorities may have rejected your case on the ground, that you did not fulfill these conditions.

The reasoning behind the various rulings by the EU-court on this subject was, that a EU-citizen might give up on using his right to free movement, if he can not be sure of the possibility to continue the family life, which he might have established in another EU-country, if he move back to his own country.

So in other words there must be an actual family life in e.g. Belgium, which is to be continued upon the dutch citizens return to Holland, and this family life must remain uninterrupted during the transfer from Belgium to Holland.

And therefore it is necessary to document the presence in Belgium not only of the dutch citizen but also the non-EU spouse of the dutch citizen. It is however not required, that the non-EU spouse had a residence card issued in Belgium or even applied for such a card, as the existence of a family life can also be proved by other means like his participation in a language course, having his name on the rental contract, fotos of the couple together showing a date and a place in Belgium or whatever else might come to mind.

But obviously the by far easiest way to prove the presence of your spouse is to let him/her apply for a residence card, so it is the recommendation of ÆUG, that people always do this.

At your service, fundiver199
I will write more to you about the details of our case that we lost here in the Netherlands, to you when I can.

http://www.lex.unict.it/eurolabor/en/do ... c34-09.pdf

http://adjudicatingeurope.eu/?p=494

http://www.bloggingportal.eu/reader/blog/774

A Union under the Rule of Law? NEW
Adjudicating Europe 2 Weeks, 4 Days, 1 Hour, 53 Minutes ago
On 30 September 2010, Advocate General Sharpston delivered her Opinion in the awaited Case C-34/09 Ruiz Zambrano. In a nutshell, this reference from the Tribunal du travail de Bruxelles deals with the scope of the right of residence for third country...
Details

Greetings and goodnight, for now, ZandvoortZandvoort

The outcome of the Gerardo Ruiz Zambrano-case will be really interesting. In short the question is whether the non-EU-citizen parent of a child who is a EU-citizen, and who has never lived anywhere else but it's national state (that is: have never exercised the right of free movement), may have a right to reside in his child's national state, based on the child's right to enjoy family life. If the answer would be 'yes' it would cause the Danish DF to howl and scream, even though it would not mean that the (in)famous floodgates would be opened.