francescomarl wrote: ↑Sat Oct 13, 2018 9:09 am
I need help with this issue. I am an EU national from Netherlands and currently in the Netherlands. My wife is from Ghana and we have been married since 2006. My wife holds a Ghanaian passport. We have two children aged 7 and 4 years and they both hold Dutch passports and live in Ghana with my wife.
My wife wants to travel to Germany with one of our children who holds a Dutch passport in December, 2018 for 12 days on a holiday trip, and my question is:
Can she exercise the right to freedom of movement as a family member of an EU citizen? In which case there is no legal requirement that she submits bank statements, pay slips, letters from her employer, letter of reference, airline tickets, proof of travel insurance, confirmed hotel bookings?
Is she entitled to a free visa or does she have to pay for the visa application?
NB: She has all the necessary documentation (eg. marriage and birth certificates, and passports of our children and a copy of my passport) to proof our relationship and she as a family member of an EU citizen.
Okay this is a very interesting question. I am not a lawyer please bear in mind.
The answer to your question is lies in the actual Mrs. Chen ECJ
https://eur-lex.europa.eu/legal-content ... 2002CJ0200
Mainly ''
42
Article 1(2)(b) of Directive 90/364, which guarantees ‘dependent’ relatives in the ascending line of the holder of the right of residence the right to install themselves with the holder of the right of residence, regardless of their nationality, cannot confer a right of residence on a national of a non-member country in Mrs Chen’s situation either by reason of the emotional bonds between mother and child or on the ground that the mother’s right to enter and reside in the United Kingdom is dependent on her child’s right of residence.
43
According to the case-law of the Court, the status of ‘dependent’ member of the family of a holder of a right of residence is the result of a factual situation characterised by the fact that material support for the family member is provided by the holder of the right of residence (see, to that effect, in relation to Article 10 of Regulation No 1612/68, Case 316/85 Lebon [1987] ECR 2811, paragraphs 20 to 22).
44
In circumstances such as those of the main proceedings,
the position is exactly the opposite in that the holder of the right of residence is dependent on the national of a non-member country who is her carer and wishes to accompany her. In those circumstances, Mrs Chen cannot claim to be a ‘dependent’ relative of Catherine in the ascending line within the meaning of Directive 90/364 with a view to having the benefit of a right of residence in the United Kingdom.
45
On the other hand, a refusal to allow the parent, whether a national of a Member State or a national of a non-member country, who is the carer of a child to whom Article 18 EC and Directive 90/364 grant a right of residence, to reside with that child in the host Member State would deprive the child’s right of residence of any useful effect. It is clear that enjoyment by a young child of a right of residence necessarily implies that the child is entitled to be accompanied by the person who is his or her primary carer and accordingly that the carer must be in a position to reside with the child in the host Member State for the duration of such residence (see, mutatis mutandis, in relation to Article 12 of Regulation No 1612/68, Baumbast and R, paragraphs 71 to 75).
46
For that reason alone, where, as in the main proceedings, Article 18 EC and Directive 90/364 grant a right to reside for an indefinite period in the host Member State to a young minor who is a national of another Member State, those same provisions allow a parent who is that minor’s primary carer to reside with the child in the host Member State.
47
The answer to be given to the national court must therefore be that, in circumstances like those of the main proceedings, Article 18 EC and Directive 90/364 confer on a young minor who is a national of a Member State, is covered by appropriate sickness insurance and is in the care of a parent who is a third-country national having sufficient resources for that minor not to become a burden on the public finances of the host Member State, a right to reside for an indefinite period in that State. In such circumstances, those same provisions allow a parent who is that minor’s primary carer to reside with the child in the host Member State.
Costs
48
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (sitting as a full Court) hereby rules:
1.
In circumstances like those of the main proceedings, Article 18 EC and Council Directive 90/364/EEC of 28 June 1990 on the right of residence confer on a young minor who is a national of a Member State, is covered by appropriate sickness insurance and is in the care of a parent who is a third-country national having sufficient resources for that minor not to become a burden on the public finances of the host Member State, a right to reside for an indefinite period in that State. In such circumstances, those same provisions allow a parent who is that minor’s primary carer to reside with the child in the host Member State. ''
Therefore in MY opinion, mother has to prove she has enough resources to support the child as well as take out insurance. The typical exemptions of not showing finances and such does not apply because of point 44 and the actual ruling point 48 based on Pt.44. And I also believe the mother will not fall under the ascending line to invoke the 3 month unconditional stay under directive 2004/38. If you really need to be sure, maybe you need a lawyer.
