Visa for family members of EU citizens

Who counts as a family member

Article 2(2) of the Directive covers the spouse, a registered partner where the host country treats registered partnerships as equivalent to marriage, direct descendants under 21 or dependent, and dependent direct relatives in the ascending line, in each case also those of the spouse or partner. For other dependants, members of the household and partners in a durable relationship, Article 3(2) requires the host country to facilitate entry.

When the Directive applies

It applies when the EU citizen moves to or lives in an EU country other than their own (Article 3(1)). If the EU citizen lives in their own country and has not used free movement, that country’s national rules apply instead.

The Court of Justice held in Metock (C-127/08) that the family member does not need to have lived lawfully in another EU country first.

A residence card replaces the visa

A valid residence card as the family member of an EU citizen exempts the holder from the visa requirement (Article 5(2)). EU guidance says it allows visa-free travel to all EU countries and to Iceland, Liechtenstein and Norway, and to Switzerland unless the card was issued by Cyprus or Ireland.

At the border without a visa

Under Article 5(4), the border authorities must give a family member every reasonable opportunity to obtain the documents or to prove the family tie by other means. In MRAX (C-459/99), the Court of Justice held that a third-country spouse of an EU citizen who can prove identity and the marriage may not be sent back solely for lacking a visa, where there is no risk to public policy, public security or public health.

If a visa is refused

A refusal must rest on public policy, public security or public health (Article 27) or on abuse of rights or fraud (Article 35), and the person must be told the reasons and have access to redress (Articles 30 and 31). In Commission v Spain (C-503/03), the Court held that a refusal based only on a Schengen Information System alert, without checking that the person is a genuine, present and sufficiently serious threat, breaks EU law.