Recently we had an enquiry from a prospective Bulgarian client living in another EU member state. The client is married to a non-EU citizen, whose immigration documents are in order (in the other EU members state).
The Bulgarian client wanted to obtain for her husband Bulgarian residence permit (id card) on basis of their marriage. The idea of the client was that this residence permit card should be on basis of “family member of EU citizen”. So is that possible?
Family member of EU citizen vs family member of Bulgarian citizen
As Bulgaria is fully fledged EU member state, isn’t then the above comparison pointless? Well, not really…
The foreigners law
If a foreigner (non-EU citizen) is married to Bulgarian citizen, then according to the Bulgarian legislation, he is considered to be “family member of Bulgarian citizen”. The rights of such foreigner in Bulgaria is governed by the foreigner’s law, which is quite unfortunate as this law is extremely restrictive.
The law for the EU citizens and their family members
If a foreigner however is married to EU citizen (but not Bulgarian), then his rights in Bulgaria are governed by the law for the EU citizens and their family members. This law is much more liberal and, surprisingly, the non-EU national who is married to non-Bulgarian (but still an EU citizen) has much more rights in Bulgaria than if he was married to Bulgarian national. For this irregularity, we have already filed a case with the State Commission for Discrimination and are looking forward for positive result.
So can our client obtain what she wants for her husband?
No, unfortunately not! What the husband of our client can get however is residence permit as spouse of Bulgarian citizen (this is different than a permit as spose of EU citizen). Unfortunately, to make this possible, the husband of our client will need to go through the trouble of obtaining visa D first. And what is even worse, the percentage of refused visa D applications has been skyrocketing recently.
Contra-intuitively, if our client was not Bulgarian, but citizen of another EU country, all this hassle with obtaining visa D would not be necessary.
Why would the husband of our client need to obtain Bulgarian residence permit anyway
No matter the difficulties that come with the application for visa D, our client’s husband should still apply for and obtain Bulgarian residence permit. Even though he holds another EU country’s residence permit and he can travel freely within the EU, obtaining Bulgarian residence permit (+visa D) will enable him to obtain at one time later Bulgarian permanent residence and even Bulgarian citizenship. And as we all know, getting hold of Bulgarian passport is priceless. And no matter the administrative hurdles, obtaining Bulgarian citizenship is million times better than having any type of residence status in any other EU member state.
I don’t think this is fully correct.
In the Netherlands for example a family member of a Dutch citizen can derive the rights from EU law if they have lived previously for a certain amount of time in another EU country.
“Situations in which Dutch nationals can rely on EU law
In these situations, you, as a Dutch national, have made use of the free movement of persons within the EU. So, you can rely on EU law.
You have stayed in another EU/EEA country or Switzerland with your partner or family member
You meet these requirements:
The stay with your partner or family member in the other EU/EEA country or Switzerland lasted at least 3 continuous months.
Your partner or family member does not have the nationality of an EU/EEA country or Switzerland.
You and your partner or family member stayed in this EU/EEA country or Switzerland under EU law.
Did you stay outside the EU for more than 6 months after your stay in the EU/EEA country or Switzerland? In that case you can no longer rely on EU law.”
Congratulations for your deep knowledge of the problem. And you are absolutely right in what you are saying. However, the problem is that in order to “derive rights” for his non-EU spouse in Bulgaria, the Bulgarian citizen must be settled in another EU member state. For that to work, certain conditions need to be met, more or less same as in the Netherlands. For another EU citizen however, to derive rights for his non-EU spouse in Bulgaria, it is not necessary for him to live in any specific country (either in Bulgaria or in another EU country). And this is ridiculous of course. Pure discrimination.