Non-EU family members of EU citizens can obtain long-term residence, court rules

The Court of Justice of the European Union has ruled that non-EU citizens who have residence rights in an EU country as family members of an EU national can acquire EU long-term residence.

Non-EU family members of EU citizens can obtain long-term residence, court rules
Non-EU family members of EU citizens can obtain EU long-term residence (Photo by Kenzo TRIBOUILLARD / AFP)

EU long-term residence is a legal status that non-EU citizens can obtain if they have lived continuously in an EU country for at least five years, have not been away for more than 6 consecutive months and 10 months over the entire period (although the rules are different for Britons covered by the Withdrawal Agreement), and can prove to have “stable and regular economic resources” and health insurance. Applicants can also be required to meet “integration conditions”, such as knowing the language.

Long-term residence status grants equal treatment to EU nationals in areas such as employment, self-employment or education, as well as the possibility to move to other EU countries under certain conditions. 

But the procedure to get this status is not always straight-forward.

In this case, a Ghanian national who had a residence permit in the Netherlands because of a ‘relationship of dependency’ with her son, a Dutch citizen, saw their application for EU long-term residence refused.

The Dutch authorities argued that the residence right of a family member of an EU citizen is ‘temporary in nature’ and therefore excluded from the EU directive on long-term residence.

The applicant, however, appealed the decision and the District Court of The Hague referred the case to the EU Court of Justice for an interpretation of the rules.

On Wednesday the EU Court clarified that non-EU family members of EU citizens who live in the EU can indeed acquire EU long-term residence.

The EU long-term residence directive excludes specifically third-country nationals who reside in the EU temporarily, such as posted workers, seasonal workers or au pairs, or those with a residence permit that “has been formally limited”.

A family member of an EU citizens does not fall into this group, the Court said, as “such a relationship of dependency is not, in principle, intended to be of short duration.”

In addition, EU judges argued, the purpose of the EU long-term residence directive is to promote the integration of third country nationals who are settled in the European Union.

It is now for the Dutch court to conclude the case on the basis of the Court’s decision, which will apply also to the other EU member states.

The European Commission proposed in April to simplify the rules on EU long-term residence, especially when it comes to obtaining the status, moving to other EU countries and the rights of family members. 

These new measures are undergoing the legislative procedure have to be approved by the European Parliament and the EU Council. These rules also concern Britons living in the EU as family members of EU citizens.

Member comments

  1. So does this mean that an Article 50 card holder who is married to an EU National could acquire EU long-term residence status IN ADDITION to their Withdrawal Agreement rights in order to gain free movement in the EU and hence live and work in different EU countries?

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OQTF – What is the ‘notice to quit France’ and can you appeal against it?

You may have seen the acronym OQTF in the headlines, along with politicians vowing to get tough on enforcement, but what exactly is an 'Obligation de quitter le territoire français' and what can you do if you get one?

OQTF - What is the 'notice to quit France' and can you appeal against it?

An Obligation de quitter le territoire français, usually known by the acronym OQTF is ‘an obligation to leave France’ that can be served on any foreigner who is in French territory (ie mainland France or any of its overseas territories).

According to the Interior Minister, 120,000 of these were served in 2020.

This is not the same as expulsion – foreigners expelled from France must leave the country immediately, those served with an OQTF are given a deadline to leave – usually within 30 days of receiving the notice.

Expulsion is reserved for people who are living in France illegally and who represent some sort of threat to the French state – it’s usually used for terror suspects.

Who can get an OQTF?

Broadly, an OQTF is used in three scenarios; on the release of a foreign prisoner after serving a jail term in France, on a foreigner whose residency permit has been withdrawn (the most common reason for this is criminal activity), or a foreigner who does not have the correct residency papers.

This final category is the most common and encompasses people whose application to renew their visa or residency permit has been refused; people whose visa/residency permit has expired and who are therefore living in France illegally; or those who entered France in an irregular manner (eg arriving on a tourist visa and then working in France). It also includes asylum seekers whose claim has been refused and who have exhausted their appeals. 

OQTFs hit the headlines recently after the murder of a 12-year-old girl in Paris, in which the main suspect was an Algerian woman living in France illegally who had been served a notice to quit.

In her case, according to the government spokesman, she had entered France on a student visa but when it expired she did not renew it. She had left France and when she attempted to re-enter the country at Orly airport, border officials noticed her irregular status and she was served with an OQTF – although she was allowed back into the country.

The case has been particularly controversial because she was served the 30-day notice to quit in August, but was still in France at the time of the murder in late September.

According to the Interior Minister, only around 10 percent of OQTFs are enforced – something he has vowed to change. 

The notices can be served on any non-French person, but the categories of people who have had residence permits refused or withdrawn only apply to those who need them in the first place – and that is non-EU citizens.

How do you get it?

An OQTF is issued by your local préfecture (or the Préfecture de Police if you are in Paris) and is usually sent to you by post or email, or both.

It is a formal document outlining the reason that you are being served with the notice, and when you must leave France.

In most cases you have 30 days to leave the country, but some OQTFs give you just 48 hours to leave – this is usually reserved for people who represent some kind of threat to public order, but is also used for people whose residency papers have been refused or withdrawn because of a fraudulent application (ie submitting fake documents or lying on the application).

The 30 days is calculated from the day the decision is issued, but if the deadline falls on a weekend or a public holiday, you have until the next working day to leave France.

Can you appeal?

If you accept the decision, you can apply for financial aid to help cover the costs of your journey home, and you can also apply for an extension to the 30 days if there are exceptional circumstances that justify this.

Taking either of these options involves accepting the notice to quit.

If you do not accept the notice, then you have the right to appeal – the appeal must be lodged within one month of receiving the notice, with the administrative tribunal in your area – find your local tribunal here.

You can appeal either on the grounds that the original decision around your residency papers was unfair, or on the grounds that you cannot be removed.

Circumstances in which you cannot be removed from France include:

  • You have been a legal resident of France for more than 10 years (excluding years spent on a student visa)
  • You have been ordinarily resident in France since you were a child (arriving before your 14th birthday)
  • You have been married to a French citizen for at least three years, and you still live together
  • You are the parent of a French child who is living in France (you must prove that you have contributed to the maintenance of your child either since birth or at least for two years, polygamous relationships are excluded)
  • You are usually resident in France and you need healthcare that is not available in your home country

Find the full list here

According to the fact-checking organisation Les Surligneurs, 12 percent of OQTFs are cancelled on appeal, the majority on the grounds that the person has a settled family life in France, that they risk torture in their home country or that a return cannot be organised (for example, flights cannot currently be organised to Afghanistan). 

You cannot be forced to leave while your appeal is ongoing.

French vocab

Sans papiers – literally ‘without papers’, the informal way of referring to undocumented foreigners

Etranger en situation irrégulière – the more formal way of saying the same thing, a foreigner in an ‘irregular situation’ of not having the correct paperwork

Obligation de quitter le territoire français – Notice to leave French territory (ie mainland France or one of its overseas territories)

Séjournez régulièrement – a regular stay, ie time that you were in France legally with the correct paperwork

Titre de séjour – residency permit, sometimes also referred to as a carte de séjour (residency card) but it means the same thing