Discrimination and reverse discrimination in the EU
We have often written about the absurdities of the Bulgarian legislation and the various forms of discrimination. The most unacceptable of which are the cases of reverse discrimination. These are namely when Bulgarian citizens have fewer rights in Bulgaria than citizens of other EU member states.
Today we will focus on another phenomenon – reverse discrimination in another EU member state. We will discuss a case when a citizen of another EU country has fewer rights in his own country than in Bulgaria. By the way, the same applies to Bulgarians who often enjoy more rights in another EU country than in Bulgaria.
If you’re already confused about who has what rights and why they’re fewer or more, we’ll discuss the following real-life situation. Some facts have been changed in accordance with European data protection regulations.
The case of Oscar – citizen of Sweden
Oscar is a professional athlete and a citizen of Sweden. He is married to Zara – a citizen of a non-EU country. In order for Zara to obtain residence permit in Sweden, as Oscar’s wife, she has submitted the necessary documents under Swedish national law a year ago. Unfortunately, the procedure is slow and takes about 15-16 months (and often more). In this way, Zara is expecting to receive her Swedish residence permit sometime in December 2022 – January 2023. The excessively long period for obtaining residence permit in Sweden is disappointing. On top of that, cases of refusals to issue a residence permit are not rare. As a company that is being actively engaged in assistance in obtaining residence permits, this doesn’t surprise us. The reason is that in Sweden, Zara is not a beneficiary of and does not derive any rights from Directive 2004/38/EC of the European Parliament and of the Council.
Similar situation for the Bulgarian citizens
It should be noted that Bulgarian citizens who have married foreigners from non-EU countries also face problems and delays in obtaining residence permits for their spouses. We recommend you reading about the story of Gergana and her Pakistani husband Akil (in Bulgarian), who have been (successfully) fighting the Bulgarian bureaucracy for 5 years for their right to live in Bulgaria.
Oscar and Zara in Bulgaria
The legal situation of Oscar – EU citizen (Sweden)
Recently, Oscar has signed a contract to compete for one of the best sports clubs in Bulgaria. For this purpose, logically, he and his wife are planning to move (temporarily) to live in Bulgaria. According to the European legislation, transposed in the Law on the entry, residence and departure of the citizens of the European Union and their family members, Oscar has the right to stay in Bulgaria for up to three months without any administrative formalities. If he is planning a longer stay, Oscar should obtain a long-term residence permit in Bulgaria. This permit is issued for a maximum period of up to five years. In the event that Oscar is granted the residence permit, then he and his family (Zara), will benefit from the rights of Directive 2004/38/EC. And these rights, as we will explain below, are extremely important.
This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.
art. 3, p. 1 of Directive 2004/38/EC
The legal situation of Zara – non-EU citizen
While Zara is still waiting for her residence permit in Sweden, a new legal opportunity has opened up for her. Due to her husband’s relocation to Bulgaria, her immigration status now falls within the scope of Directive 2004/38/EC. Because of this, her residence permit in Bulgaria will be issued in accordance with the provisions of the Law on the entry, residence and exit of the Republic of Bulgaria for EU citizens and their family members, and not the Law on the Foreigners in the Republic of Bulgaria. And this makes a huge difference.
This is precisely the problem of Zara in Sweden. Her application there is considered according to the Swedish analogue of the Bulgarian Foreigners’ Law. Her case doesn’t not fall under the Swedish law, which transposes Directive 2004/38/EC. This is the reason why Zara has not yet received a residence permit in Sweden. And it is not even clear when or if she will receive it at all.
More good news for Zara in Bulgaria
As we hope you understood from the above, in Bulgaria Zara has significantly more rights regarding her immigration status than she has in Sweden (illogical, right?). But the good news for Zara, related to Bulgaria, does not end there. If she and Oscar receive residence permits in Bulgaria, upon her return to Sweden, Zara will have more rights than she has now. This is because she becomes a beneficiary under Directive 2004/38/EC. And accordingly, she will not have to wait the ridiculous 15-16 months for a residence permit.
If you are confused again about who should get what and where, let’s explain what is the legal and easiest way for Zara to legalize her stay in the EU.
The action of Oscar and Zara to legalize Zara’s stay in Bulgaria
Considering Oscar’s move from Sweden to Bulgaria, he and Zara need to take the following steps to obtain residence permit in Bulgaria.
Arrival in Bulgaria
Since Zara is a citizen of a country that has visa-free agreement with the EU, she can enter Bulgaria without a visa. But even if Zara needed visa for Bulgaria, as Oscar’s wife, she could get one under extremely relaxed conditions.
Obtaining Bulgarian long-term residence permit for Oscar
After his arrival in Bulgaria, Oscar should apply for long-term residence permit. According to Art. 8, para. 1 of the Law on the entry, residence and departure of EU citizens and their family members from the Republic of Bulgaria, he has the right to be issued one, since he is:
- worker or self-employed person in Bulgaria OR;
- has health insurance and the necessary financial means to cover the costs of his residence and those of his family members without being a burden on the social assistance system.
For this purpose, Oscar must submit the following documents:
- valid identity card or valid passport;
- documents certifying that Oscar is a worker, self-employed or has health insurance and financial means;
- document for paid state fee;
- a title deed or other document proving the ownership or use of the property where Oscar will reside (to obtain residence permit in the form of a plastic card) OR;
- declaration by the owner of provided address of residence; in case the declaration is not submitted personally by the owner or by a person authorized by him, it should be with a notarized signature;
Oscar’s long-term residence permit is issued on the same day when the application is submitted!
Obtaining Bulgarian long-term residence permit for Zara
Zara is a citizen of a non-EU country. And here comes a small problem with the Bulgarian legislation. We believe that the Bulgarian legislator has incorrectly transposed Council Regulation (EC) No. 1030/2002 of June 13, 2002 (and Directive 2004/38/EC) when applying it in Art. 9a and Art. 10 of the Law on the entry, residence and departure of EU citizens and their family members from the Republic of Bulgaria. Our opinion is supported by decision No. 3402 of the Administrative Court of Sofia, first department, 19th chamber, judge Dobroslav Rukov, from 05/15/2015. Here is what the Court says (automatic translation by Google):
The present judicial panel finds that Regulation (EC) No. 1030/2002 of the Council of June 13, 2002 was not correctly transposed by the provision of Art. 9a of the Law. According to Art. 5 of Council Regulation (EC) No. 1030/2002 of June 13, 2002, it does not apply to third-country nationals who are family members of European Union citizens exercising their right to free movement. “Citizen of a third country”, according to Article 1, item 2, b. “b” of the regulation, means a person who is not a citizen of the European Union within the meaning of Article 17, paragraph 1 of the Treaty.
from the court’s decision
The analysis of the referred provisions of the referred act of the secondary law of the EU, necessitates the conclusion that the relations related to the issuance of residence documents on the territory of the EU to members of the families of EU citizens who are not citizens of the EU are excluded from its regulation the union. These relations are regulated in Art. 10 of Directive 2004/38 EC, according to which item 1, the right of residence of family members of a citizen of the Union, who are not citizens of a member state, is proven by the issuance of a document called “Residence Card of a member of the family of a citizen of the Union”, no later than six months from the date of submission of the application. A certificate that the person has applied for a residence card is issued immediately. The Directive does not set any additional requirements as to whether the person has exercised his right to free movement or whether he accompanies or joins a citizen of the European Union, as stated in Article 9a and Article 12 of the Law. It is no coincidence that in Article 1 of Regulation (EC) No. 1030/2002 of the Council of On June 13, 2002, the term “residence permit” was used, and in Directive 2004/38 “Residence card of a family member of a citizen of the Union”. The meaning put into the two types of documents by the European legislator is completely different. “Residence permit” means any permit that is issued by the authorities of a Member State and allows a national of a third country to reside in its territory. The same may be issued for the exercise of an employment activity, for training, for treatment, etc. n., while “Residence card of a member of the family of a citizen of the Union” is issued under only one condition – that the applicant is not a citizen of the EU, but is a member of the family of a citizen of the Union.
In connection with everything so far, we believe that Zara should submit an application to obtain a long-term residence under Art. 10 of the Law, and not under Art. 9a. This is because Art. 5 of Regulation 1030/2002 states that:
This Regulation shall not apply to third-country nationals who are members of the families of citizens of the Union exercising their right to free movement
We believe that Zara, by submitting her application for long-term residence in Bulgaria, is already exercising her right of free movement. Thus, we believe that the Bulgarian legislator should not have created Art. 9a of the law, which currently incorrectly transposes Art. 5 of Regulation 1030/2002. In our opinion, the legislator has incorrectly adopted the tense form of the verb “exercises (currently and in the future)” as “exercises (in the past and until now)”.
The good news for Zara is that if the application is properly submitted, she will be issued a temporary certificate immediately. Thus:
Zara, Oscar’s wife, will not have to leave Bulgaria and be separated from Oscar, even though the 3-month EU/Bulgaria visa-free period will have expired
Zara must attach the following documents to her application:
- valid national passport;
- a document certifying that she is Oscar’s wife;
- the long-term residence permit of Oscar;
- document for paid state fee.
The long-term residence permit will be issued to Zara within three months, but she will immediately receive a temporary certificate.
Obtaining long-term residence in Sweden
We believe that Zara’s current application to obtain residence permit in Sweden need not be upheld in the future. This is because after returning to Sweden from Bulgaria in the future, she will become a beneficiary under Directive 2004/38/EC. In this way, she will be issued (if she needs it at all, after obtaining a Bulgarian permit) a Swedish residence permit under another, significantly more favorable law for her in Sweden.
The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called “Residence card of a family member of a Union citizen” no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately.
Art. 10, p. 1 of Directive 2004/38/ЕО
Please contact us for any additional information you might require on the topic.
author: Alexander Dobrinov
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