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Originally, the rights of nationals of one member state to reside in another were founded on economic activity -- the resident had to be employed, or self employed. Over the years legislation has added to the category of persons that have a right of residence: there are specific provisions for students, retired workers, workers' families, and people who are economically self-sufficient. Eventually, the TreatyOfMaastricht added (in what is now Art. 18) a general right to move and reside, subject to restrictions laid down in the Treaty and legislation. However, because so many different classes of individual are already covered by legislation, it is not clear what new rights, if any, are created by Art. 18. It seems clear that Art. 18 does not create a right of residence for non-nationals who lack the ability to support themselves (Grzlczyk2001). The scope of Art. 18 will be discussed at the end of this article.
In general, a citizen of one EU member state, and his or her family, have a right to reside in another member state for a short period (currently six months, as decided by the ECJ in Antonissen1989). This right derives from the provisions on FreeMovementOfWorkers, which the ECJ has ruled must be extended to those seeking work, as well as those actually employed. No particular documentation need be presented to claim this right -- a national passport or identity card is sufficient.
In order to reside for longer that this, the citizen must become economically self-sufficient. In general this means that he or she must take up gainful employment, or must become self-employed, or enroll as a student. It is generally felt that the six-month period ought to be long enough for a person who stands any chance of finding employment to find it, although the ECJ has not ruled out the possibility that a person could avoid deportation at the end of this period if he could prove that he has a reasonable prospect of finding work.
To work in a particular state for a period of more than three months, the worker must obtain a residence permit from the national authorities. In general, if the period of employment is expected to be longer than one year, the worker is entitled to a permit whose duration is at least five years (Directive 2004/38/EC). Temporary permits may be issued for shorter durations (that is, three months to one year).
If a person takes up employment within a particular member state, and continues to live there for (in general) three years, then he or she acquires a permanent right of residence (the detailed provisions are in Regulation 1251/70). Thereafter the right of residence is not lost if the person ceases to work. Rights of residence, and of permanent residence, apply to the worker's family to the same extent as to the worker, but the ECJ has made it clear that the rights of the family are derivative -- an ex-spouse of a worker would lose any residence rights that derived from the relationship with the worker (but see below).
However, it is clear that if the worker dies, then whatever rights he had before his death extend to his family indefinitely. That is, if the worker has been continuously resident for three years or more, and dies in the fouth year, his or her family will have a permanent right of residence in that country.
Member states are not permitted to expel nationals of other member states solely because they have become unemployed. If a person has acquired a residence permit for a particular period, then in general the state must respect that right of residence even if its holder is unemployed. In other cases, it seems to be presumed that a unemployed person is entitled to remain for the same six-month period that would apply to a person entering the country for the first time.
Where a person is self-employed, member states cannot revoke a work permit on the grounds that the worker becomes temporarily unable to work because of illness or injury. In one sense this suggests that establishment as a self-employed person amounts immediately to what is almost a permanent right of residence. However, a self-employed person who is permanently incapacitated will, presumably, lose the right of residence unless he or she has a acquired a permanent right on the basis of three years residence, as an employed person would.
Finally, a note on Art. 18 and the general right of residence it envisages. It has been accepted until recently that the rights of a worker's family are derivative, not independent rights. A worker's children, for example, on reaching the age of 21 cease to derive a right of residence from their parents. Similarly, the ex-spouse of a worker would be expected to lose any residence rights that derived from the marriage relationship.
Art. 18 creates a general right of residence, but subject to limitations created by the Treaty. It has usually been assumed that Art. 18 has very little scope for action, because most forms of residence rights have already been the subject of legislation. However, in the case of BaumbastAndR2001, the ECJ held that any person who was a `citizen of the Union' was entitled to rely on the rights granted under the Treaty, and this included the right under Art. 18. Since being a citizen did not entail any particular economic or employment status, this meant that the right under Art. 18 was a free-standing right, available to all EU nationals. The ECJ conceded that a member state was entitled to impose limitations on the right of residence, such as an obligation to ensure financial self-sufficiency, but these must be proportionate.
In summary, if the decision in Baumbast is generally accepted, it will mean that any EU national has a general right of residence in any member state, provided he or she is financially self-sufficient and is prepared to comply with the proportionate requirements of that member state.
See also: FreeMovementOfWorkers, FreeMovementOfStudents, FreeMovementOfPersons.
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