Exotic residence rights: The right of residence under Article 21 TFEU

Some legal norms are applied less frequently in migration law than others. This applies, for example, to Article 21 TFEU . This norm is special because it is unusual to derive a right of residence directly from the European treaties . While this is also possible in other constellations such as the Vander Elst visa , the establishment of residence rights is normally only customary through laws such as the Residence Act (AufenthG) or the Freedom of Movement Act (FreizügG/EU) . Nevertheless, case law also recognizes the establishment of a residence on the basis of Article 21 TFEU. The idea behind this is probably that, for example, in a parent-child relationship, residence in another EU country within the meaning of Article 21 TFEU is impossible if the person with custody cannot accompany the child.

The right of residence under Union law according to Article 21 TFEU

Article 21(1) TFEU grants Union citizens the right to move and reside freely within the territory of the Member States . Therefore, according to its wording, the provision does not initially establish a right of residence for third-country nationals, but initially only for EU citizens. However, under certain conditions, the right under Article 21 TFEU can also be extended to family members who are not themselves Union citizens. In its judgment of June 13, 2024 (1 C 5.23), the Federal Administrative Court (BVerwG) clarified that such a derived right of residence under Article 21 TFEU can also exist if the third-country national already has another right of residence under national law. The court thus continues its previous case law (cf. BVerwG, judgment of 23 September 2020 – 1 C 27.19 ) and strengthens the residence rights of parents of minor Union citizens based on Union law. Requirements for a right of residence under Article 21 TFEU

According to the decision of the Federal Administrative Court (BVerwG, para. 23), the right of residence of a third-country national parent derived from Article 21 TFEU requires three cumulative conditions:

1. Cross-border stay of the Union citizen

The minor EU citizen must reside in a Member State other than the one of which they are a national. This ties in with the EU law definition of freedom of movement as set out in Article 3(1) of Directive 2004/38/EC . In this respect, it is recognized that EU citizens cannot invoke freedom of movement rights within their own Member State (e.g., for family reunification ; so-called discrimination against nationals).

2. Actual exercise of parental authority by the third-country national

The right of residence is granted only to the parent who assumes effective care and responsibility for the EU citizen child. This effective relationship is crucial to protecting family life within the meaning of Article 7 of the Charter of Fundamental Rights of the European Union .

3. Right of free movement of Union citizens

The child must be entitled to freedom of movement within the meaning of EU law. The right of residence may not be merely derived from it. This requirement is often problematic, as minor EU citizens – for example, as employees, self-employed persons, or students – generally do not meet the requirements set out in Section 2 (2) of the Freedom of Movement Act/EU.

Conclusion on the right of residence under Article 21 TFEU

The right of residence under Article 21 TFEU is a comparatively rarely used but doctrinally highly interesting instrument of European migration law. It demonstrates that, in specific circumstances, EU law can extend beyond the scope of national residence law to ensure the effective protection of family ties and the freedom of movement of EU citizens. In particular, the Federal Administrative Court's decision of June 13, 2024, and the preceding case law, make it clear that the right of residence under EU law can also exist alongside national residence law and thus has an independent, complementary function.

Article 21 TFEU thus becomes particularly important in cases where a minor Union citizen is dependent on the actual presence and care of a third-country national parent. The recognition of a derived right of residence not only safeguards the right to freedom of movement, but also the family life protected by the Charter of Fundamental Rights. Overall, Article 21 TFEU makes it clear that Union law can establish a direct right of residence in exceptional cases – and thus, as an "exotic" legal instrument, makes an important contribution to protecting family unity in a European context.