Alicante & Castellon Tarragona & Valencia. See anyone you Know?
Maintaining Spanish Property
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Written by David Burrage
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E.U. Directive 2004/38/EC - Frequently asked questions - 19/04/07
Some frequently asked questions about your new rights. We do not attempt to address the new Directive in its entirety since it is there for you to read. What does this new Directive mean to you as a European Citizen?
Here we attempt to answer only some of the more frequently asked questions, but depending upon your circumstances, where you may require a more specific answer, we ask you to treat this page as a guide and refer to the Directive for the more precise law. Please note that David Burrage has digested a 47 page Directive and reduced it to less than 10% of the original content, in order to produce this FAQ page.
That said, it follows therefore that this article cannot be all embracing but does cover the bulk of questions that we are regularly asked to answer. My co-founder David Burrage must take a huge round of applause for his detailed analysis of this important E.U. Directive. If any Member wishes to read the entirety of this Directive please go to www.ukgovabusesexpats.co.uk
Firstly, despite our Alicante Consul - Russell Thomson saying to the contrary, this Directive does abolish Resident’s Cards for all European Citizens. It now adds, in addition to your right of ‘free’ movement without ‘obstacle’ within the Member States. Your additional right of free movement with ‘dignity’ and without ‘formality’. This Directive also creates for the first time, your right of permanent residence, following a period of 5 years of residency, from which time you will acquire almost all of the rights of a National citizen of your host Member State.
Although you will not have a right to vote in a National Assembly. This latter matter is currently under investigation, at the request of the European Parliament - following a petition by our Association, since certain expatriate European citizens will have been disenfranchised of any national vote within the European Union.
Question 1
When did the Directive first become law?
Answer
The Directive received the approval of the European Parliament on 29 April 2004. It was published in the Official Journal Of the European Union on 30 April 2004. The latter date was the date it became law. However, each Member State was allowed two years to enshrine this law into their national legislation. This is known as the ‘Transposition’ date. In this case the latest date for that to have happened was 30 April 2006. Spain failed to transpose the Directive until 28 March 2007, following our intervention, when we caused ‘Infringement’ proceedings to be opened against Spain.
Those proceedings are still ongoing.
Question 2
Where can I find my right to take up residence in another E.U. Member State?
Answer
This right is enshrined in Article 7 of the Directive and is probably the most important Article.
Question 3
I am, for example a British Citizens and have contributed to the Spanish Social Security system through employment. I have been told that it has hitherto no longer been necessary for me to apply for a Community Resident’s Card. Is this correct?
Answer
Yes that is true, since by virtue of Royal Decree 178 of 14 February 2003 it had no longer been necessary for workers, self-employed persons and Students to apply for a Community Resident’s Card. However, even though this was national law various agencies of the Spanish administration, including Notary Publics, refused to obey the law. This particular Decreto received Royal assent in Spain, following a meeting between Spain, France, Germany and Italy as the result of an agreement reached between these 4 E.U. States in Marseille in the summer of 2000. At is paragraph (3) in its pre-amble of the new Directive, it can be seen that it now seeks to codify all present legislation, in order to simplify and strengthen the right of free movement and residence of all Union citizens, and it most specifically refers to embracing all non-active persons (State Pensioners, early retirees.) This also includes close family members.
Question 4
Up to what period in time do I have the right to be resident in any Member State, without any conditions?
Answer
You need to have been in permanent residence in a period of 5 years of continuous residence.
Question 5
After what period of time to I acquire further rights, including the right to permanent residence.
Answer
This will be after a period of 5 years of continuous residence.
Question 6
What are my rights of residence after the expiry of 3 months?
Answer
Where Spain does not enlarge upon the 3-month period then this is dealt with in Article 7.
You must be: -:
(a) Either a worker, or self employed.
(b) Have sufficient resources for yourself and your family members, so as not to become a burden upon the social assistance system of the host State. In proper accordance with the Directive a Member State may not routinely request you proof you have such means. They may only do this where they have proper cause to suspect that you may not.
(c) Have comprehensive sickness insurance cover, or be enrolled in a national scheme.
Question 7
As a Union citizen can I be refused entry to another Member State, if I have forgotten my passport or identity card?.
Answer
No, not immediately, since you must be offered reasonable time to produce your passport, NIE. card, or other documentary evidence, to prove your entitlement to Union citizenship.
Question 8
How will these registration certificates be issued?
Answer
Registration certificates must be issued to you immediately upon your 1st registration. You will find this referred to in Article 8.of the Directive. They will be issued by your nearest national police station, but read the answer in question 18, as regards to the issue of the permanent residence certificates.
Question 9
What documents do I need to produce?
Answer
You will be required to produce: -:
(a) Your passport or valid I.D. card issued by your national State.
(b) Confirmation from an employer as to your employment or proof that you are self-employed. Non-active citizens e.g. State pensioners, early retirees etc., must produce proof of health protection cover, although in the case of citizens, where they receive a State pension, proof that they have registered their E121.
(c) A declaration that you have sufficient resources to support yourself. If demanded, documentary proof of your family relationship.
(d) There is no requirement set out in the Directive where you must produce an extract from the ‘Padron’.
Question 10
Can the host State lay down a fixed amount, which they regard as ‘sufficient resources’?
Answer
No, but they must take into account the personal situation of the person concerned and when considering ones resources, the amount must not be higher than the threshold below which nationals of the host State, become eligible for social assistance upon the same criteria as its own citizens. But this must not be routinely carried out.
Question 11
What if I am a European citizen and have close family links with a non-European citizen?
Answer
This situation is specifically catered for in Article 2.They will acquire nearly all your rights, but they will still have to apply for a ‘Resident’s Card’ much as before. Family relationships will also be considered as coming within the meaning of the Directive. This also includes registered ‘Civil Partnerships’ where they are recognised by the host State.
Question 12
Can I be requested to prove my family relationships?
Answer
This is a matter for the host State, but you may be asked to produce a document or documents attesting to your family relationship. For further guidance we would direct you to Article 8. See www.ukgovabusesexpats.co.uk/
Question 13
Can I be subjected to some sanction, such as a fine, if I fail to register myself before the 3 month expiry period, or a later period where the host State opts to enlarge upon the 3 month period?
Answer
Yes you can – for further guidance see Article 9.
Question 14
What sort of document will I be issued with?
Answer
This will be a certificate bearing your full name, address, nationality, N.I.E. number and the date of 1st issue. Subsequent certificates must continue to always show the date of 1st issue, since this has implications on ‘permanent’ residence status, acquired after 5 years of uninterrupted residence and without any expulsion order, you must be issued this certificate, in the 1st instance immediately, and without formality, no photographs or fingerprints, since that would constitute an unacceptable ‘formality’.
Question 15
How much will the above certificate cost?
Answer
The Directive issues guidelines and refers to this certificate) being issued ‘free’, but where a charge is made. This charge must be no greater than it applies to the Member States own citizens. In Spain this is currently free.
Question 16
For how long will the certificate of my registration be valued?
Answer
Where you have newly arrived to take up residence in another Member State, then this will be for a period of 5 years – But see answer to next question.
Question 17
From what date of the 5 years of residence, will qualify me for ‘permanent’ residence?
Answer
We have taken advice on this from the Directorate Genera, European Commission of Justice, Freedom and security. Your 5 years starts from when you actually 1st took up took up residence, so that as of 30 April 2006, latest transposition date, where you have already been resident in your host Member State for 5 years or more, you immediately acquire the status of a permanent citizen.
Go to www.ukgovabusesexpats.co.uk to read their letter of advice. This can be found in Article 16.
Question 18
What is the validity period of the certificate of permanent residence?
Answer
This certificate will be valid for 10 years and must be issued as soon as possible and no later than after 6 months of application.
Question 19
Within what period of time must I renew my application.
Answer
You must apply for renewal before your old certificate expires, since you can be fined for not doing so.
Question 20
Once I have acquired the status of a permanent residence. How long may I be absent from my host State before losing this right?
Answer
2 years, but up until you acquire that status then your right to retain residence, without re-applying, is 6 months. However, this can be extended up to 12 moths for reasons of health, including pregnancy and vocational training etc., Article 20 deals with this.
Question 21
What additional rights do I acquire as a permanent resident?
Answer
You will: -
(a) No longer be required to provide proof of employment
(b) You will no longer be subject to a declaration that you have sufficient means to support yourself, or that you have health protection cover. Articles 12 and 13 cover this. Indeed you will acquire all the rights accorded a national citizen of your host State, save where expressly excluded by the Treaty or its secondary laws
Question 22
Will I become entitled to receive social security upon the same basis as the national citizens of my host State?
Answer
Yes you will under certain circumstances, but please read the Directive. See www.ukgovabusesexpats.co.uk/
Question 23
As a resident in another Member State, can I be made the subject of an expulsion order?
Answer
Yes you can on the following grounds
(a) Public Policy. This is set out fully in Article 27.
(b) On grounds of health, although this can only be in respect of serious infectious diseases as determined by the W.H.O. (This is set out in Article 29) or
(c) On grounds of State Security.
Question 24
If I become subject to an ‘expulsion order’. Do I have any right to appeal?
Answer
Yes you do, since any such ‘Order’ must be for compelling reasons. This order must be made by a court of law and you, not only have a right of appeal. The grounds for the expulsion must satisfy the criteria of the E.U. This is dealt with in Article 28.
Question 25
We have already experienced examples whereby different agencies of the Member States, either misinterpret E.U. Law, or are not aware of the law. How can we be sure that this will not happen?
Answer
We cannot give such a guarantee. All we can do at is to advise you at this time, is that under Article 34 Member States shall be responsible for dissemination, concerning the rights and obligations by means of awareness raising campaigns, conducted through national and local media and other means of communication. So far this has not been carried out in Spain.
Question 26
Will I be required to carry with me my passport with me at all times?
Answer
We submit not, but must await any decision from Spain, before we make any petition, since we take the view that since Spanish nationals are not required to do so then this would constitute discrimination. It would also breach our right our free movement, without ‘obstacle’, without other ‘formality’ and our right to ‘dignity. All of which are enshrined in the new Directive.’ Further we rely upon the fact, as set out under item. We also rely upon that set out in the answer at item 7 above. Further it would not be reasonable, or prudent to send our 4 year olds to school with their passports, or even where we visit the beach. These documents are very valuable instruments and if lost or stolen stolen, they may fall into the wrong hands where they can be adapted for I.D. fraud, or even for terrorist purposes. We will, where necessary return to the Justice Commission and the European Parliament. But for the present we must first monitor Spain’s determination.
Question 27
How will I be able to cash use my credit /check card when shopping?
Answer
Certain Banks already issued their cards bearing one’s photograph, (e.g. Caixa Bank of Altea). If yours does not, then ask them to do so forthwith, under the threat that you will go elsewhere. There is also ‘chip and pin’, although caution must always be employed when using this facility. Where retail outlets refuse to accept such cards, then dump your purchase and shop elsewhere. They will soon get used to the idea, It will however, take a little education. Credit card fraud in Spain, even with I.D. cards, the now abolished residence cards and the production of a passport, is several-fold higher in Spain, than the U.K. where no such identification is demanded. Remember the Spanish want your business and more importantly they could not exist on the Costa’s without your money.
Question 28
What will be the situation where any Member State fails to ‘Transpose’ this new legislation correctly into its own national law?
Answer
We have already taken a number of reasoned legal opinions, but we will not deal with them all here. Suffice to say that the E.U. citizens ‘Legal Experts’ replied, You may plead ‘legitimate Expectation’ Put in the words of the response from the office of the Directorate-General Justice, freedom and Security department of the E.U. Commission, “In the absence of transposition of Directive 2004/38 into national legislation you could invoke its direct applicability.”
Go to www.ukgovabusesexpats.co.uk to read their letter of response to our Association. European Law supersedes the laws of Member states in this particular matter.
All members must realize that this appraisal, is not only not the last law in this matter, since even this page will need to be up-dated once we learn more, but you can all rest assured in the knowledge that our Association will do whatever is necessary to bring you your rights and ensure that this Directive works to your advantage. Residence cards are no more and any observation about them amounts to negative thinking and we will delete such observations by our members. We must now look forward and not back.
Need more information go to www.ukgovabusesexpats.co.uk/
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