Residence permit for “other dependant family member” of an EU citizen
More and more often, we have to assist citizens of the European Union who have close relatives in countries from outside the EU. Due to the heavy bureaucracy in the EU, European citizens cannot obtain residence permits for their relatives in their own countries. They therefore, quite logically, wish to exercise their rights under Directive 2004/38/EC. This directive, transposed into the Law on the entry, residence and exit of EU citizens and their family members, grants greater rights to relatives of EU citizens who have chosen to live in another Member State. This of course sounds illogical, but such is often the logic of European bureaucracy.
Residence permit in Bulgaria for the sister of an EU citizen
Today we will look at a case where a Belgian citizen wants to obtain an EU residence permit for his sister, who is disabled. Due to the complex bureaucratic obstacles in Belgium, the Belgian national chooses Bulgaria where he can exercise his rights under Directive 2004/38/EC. This proved to be the only way for him to live with and take care of his sister. In addition, Bulgaria’s membership of Schengen will allow his sister to travel freely anywhere in the EU.
Who are the family members of EU citizens under Bulgarian law and Directive 2004/38/EC
Let’s see who are the family members of EU citizens, both under Bulgarian law and under the EU directive:
Under Bulgarian law
- a) a person with whom the citizen of the European Union has entered into a marriage or has a de facto cohabitation attested by an official document issued by another Member State of the European Union or other documents attesting the circumstances of their de facto cohabitation, with the exception of a written statement by the person;
- b) a descendant of a citizen of the European Union and has not attained the age of twenty-one years, or is a dependant of, or is a descendant of, a person referred to in point (a);
- c) an ascendant who is a dependant of the European Union citizen or of a person referred to in point (a).
Under Directive 2004/38/EC
- a) the spouse;
- b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;
- c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);
- d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);
As we can see, the EU citizen’s sister cannot be considered a member of his family. This is both according to the directive and according to Bulgarian law.
Other members of the family
Fortunately, however, the Directive, duly transposed into Bulgarian law, provides certain additional rights for other family members, namely:
Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:
art. 3, p. 2 от Directive 2004/38/EC
- a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;
And under Bulgarian law:
The right to enter, reside and leave the Republic of Bulgaria in accordance with the provisions of this Law shall also be granted to:
Art. 5, par. 1, p. 1 of the Law on the entry, residence and exit of EU citizens and their family members
- other member of the family, irrespective of his or her nationality, who does not meet the definition in § 1 (1) (a) and who, in the country of origin, is a dependant or a member of the household of the citizen of the European Union who has the right of free movement, or in cases where serious health reasons necessarily require personal care of the family member by the citizen of the European Union;
According to the provisions, the sister of a Belgian citizen who has serious health problems has the following rights:
According to the Directive
Facilitation of entry and stay.
According to the Bulgarian law
Right to enter, reside and leave Bulgaria.
So far so good, but what do these rights mean in practice? How can a Belgian citizen claim these rights and have his sister get a residence permit in Bulgaria?
Legal vacuum in Bulgarian law
Unfortunately, the Bulgarian law lacks any provisions on how the disabled sister of the Belgian citizen can exercise her rights. She is not considered a member of her brother’s family, although she has additional rights.
We consider that the procedures concerning the Belgian citizen’s sister should be identical as for a member of his family. At the same time, in the absence of specifics in the law, the Bulgarian immigration authorities are given a wonderful opportunity to reject such applications for residence. And this makes our job considerably more difficult than in the standard case of spouses of EU citizens. But we do know how to overcome Bulgarian bureaucracy and get what our clients need from us.
In all cases, the Belgian citizen must first obtain a residence card for EU citizens in Bulgaria. And then the real struggle with the Bulgarian administration begins – applying for and obtaining the residence card for his disabled sister. If you are in a similar situation you can contact us for consultation or immediate assistance.