The right to remain in EU law.


this is what happens when a worker has been in a member state for a period and wishes to remain

article 45 (3) TFEU

right to remain after a time

applies to members of the family even if the worker dies

freedom of movement shall be secured. this entails the abolition of any discrimination based on nationality as regards employment, remuneration and other conditions

this is subject to restrictions on public health, national security

right to accept jobs

right to seek jobs

right to reside after having been employed subject to conditions


article  of directive 2011

employment and equality of treatment

worker who is a national. he may not be treated differently from members of that nation on any respect

he can get reinstatement or re employment

enjoys same social and tax advantages as national workers


article 12 – 2004/38

rights of residence

retention of this right in the event of death of the worker or departure of the worker

  • this does not impact on the right of residence


Union citizen’s death does not take away right of residence for non citizen family members who have been living there for over a year before the death

all Union citizens can live in another member state for over 3 months if they are workers or self employed or have sufficient means not to become a burden and have comprehensive sickness insurance study or are enrolled on a course

before acquiring permanent residence it is subject to the requirements of being workers or having sufficient resources not to need social assistance

members retain right of residence on a personal basis

Baumbast – this is a case of a German who came to the UK in 1990. Father of a family lived with his Colombian wife. They had two daughters. Older daughter was a step daughter – Colombian only. The younger was German-Colombian

the man was working. 1993.. worked outside EU..

1995 wife applied for indefinite leave to remain


she appealed. ECJ said gave her the right to stay despite the fact that her husband was no longer there

social assistance criteria must be same for other EU citizens as host state nationals.


article 13 2004/ 38

divorce or end of partnership

family members can stay after this

right of residence.

divorce, annulment or termination of a registered relationship has no effect on residency.

before getting right of permanent residence the main worker needs to show he is a worker or is financially independent



article 14 of 2004/ 38 directive.

retention of the right. They can stay so long as they make no recourse to public funds

in specific cases where there is a doubt about whether a citizen or family members satisfy the conditions then the state can verify whether the conditions are fulfilled.

these checks must not be systematic – i.e. against all people from a certain state

no explusions of workers or job seekers – so long as they provide evidence of seeking a job and have a genuine chance of being hired

see Antonissen – Gustav Antonissen was a Belgian. challenged a deportation order after he was convicted of possession of cocaine. Had sought work for 2 years. The UK tended to expel people after 6 months joblessness.

ECJ had a rule referred to it. job seekers are protected for a while. ECJ said 6 months was sufficient. 6 months can be extended if the person is still seeking work

Lasalle case – court said it is v important to have the right to

article 16.


Union citizens and their kin

Union citizens who have resided legally for 5 years shall have permanent residence. this is not subject to being employed or seeking work. This applies to kin who are not members of an EU state

legally resided

sowolkovski and sezer

article 7 para 1.

continuity of residence is not effected by temporary absences of under 6 months. or one absence of 12 months for a good reasons such as pregnancy, study etc… or compulsory military service

right of permanent residence is lost only by absence for over 2 years

retirement? Article 17. exemptions for persons no longer working

para 1. derogation – right of permanent residence

shall be completed by workers or self employed persons have reached age for pension

workers who take early retirement so long as they lived there wfor at least 3 year and worked for 1 year or more

age conditions usually deemed to have been met at 60

no condition imposed as to length of residence in the case of incapacity.

for entitlement to right referred to – periods of employment spent in member state shall be regarded as having been spent in the host member state

involuntary unemployment, periods not worked not of the person’s own making shall be regarded as periods of employment







About Calers

Born Belfast 1971. I read history at Edinburgh. I did a Master's at UCL. I have semi-libertarian right wing opinions. I am married with a daughter and a son. I am allergic to cats. I am the falling hope of the not so stern and somewhat bending Tories. I am a legal beagle rather than and eagle. Big up the Commonwealth of Nations.

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