Bewegungsfreiheit
To understand the background to my request, I sent an email to the European Commission as follows:
'I am a German citizen, my wife is South African and we have lived in the United Kingdom for the last 21 years. Up until last month we have been able to travel together in the European Union because of Article 5 read with Article 10 of Directive 2004/38/EC. However, Article 10 only allows for a residence card to be issued to a family member of a European national if living in a host member state - see the definition at Article 2(3). Until last month, the United Kingdom was a host member state and my wife enjoyed freedom of movement with me because of the vignette in her passport. After Brexit, the United Kingdom is no longer a host member state meaning that Article 10 no longer applies to my wife and her vignette also no longer has any meaning.
I have been through the EU-UK Trade and Cooperation Agreement, especially Part 2, Heading 4 and Annex Servin-5 together with the Protocol on Social Security Coordination. Nowhere could I find any provision that provides an alternative to the Article 10 residence card.
Could you please advise whether any arrangement has been made for people like my wife, who still enjoy the right of freedom of movement with me as the family member of a European national under Article 5 but now have to suffer extra administration because of the removal of a right enjoyed for the last 20 years to have a residence card - a right removed without her agreement or collaboration.
Indirectly, this now also affects my rights of freedom of movement as a European national because the administration involved for my wife creates such a large obstacle that it stops us from travelling to the European Union. I would not be travelling on my own.
Will the European Union and / or the member states be issuing travel cards to non-EU family members of European nationals living in the United Kingdom as a replacement for the Article 10 residence card to ensure that European nationals still enjoy their right to freedom of movement as they have in the past and to remove the new administrative barriers on their non-EU family members that interfere with that right?'
The European Commission replied:
'...
We are fully aware that the United Kingdom’s withdrawal from the European Union holds serious consequences for a great number of citizens – both from the UK and from EU Member States – who had built their lives on the assumption that they would always be protected by EU law.
...
We regret all the disruption many EU citizens will face but it is an outcome of the UK’s decision to withdraw from the EU and its single market, the rules of which so greatly facilitated intra-EU mobility underpinned by free movement laws that the UK was keen to bring to an end in relation to United Kingdom and United Kingdom nationals.
The Withdrawal Agreement protects those EU citizens who have exercised their right to move and reside freely before the end of the transition period (31 December 2020) and live in the United Kingdom. The same goes for United Kingdom nationals living in an EU Member State.
...
The Withdrawal Agreement protects your right to live and work in the United Kingdom. It provides for visa exemption for you and your South African spouse when coming back to the UK but it does not exempt your spouse from the visa requirement in the same way as possession of a residence card issued under Article 10 of the Free Movement Directive did before the end of the transition period. Please note that there are no plans to issue travel cards to non-EU family members of European nationals living in the United Kingdom as a replacement for the Article 10 residence card as no such instrument exists under EU law.
...'
I fully understand that it was not the EU's decision to withdraw and that the EU will not be filling any gaps. However, it was also not my wife's or my decision to withdraw but we are the victims of those gaps. Does the German government intend to assist German citizens and their non-EU spouses with some form of a replacement card to overcome the administrative obstacles when travelling together in the EU?
Thanking you in anticipation.
Anfrage teilweise erfolgreich
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Datum31. März 2021
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4. Mai 2021
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