Loss of EU Free Movement Rights

Loss of EU free movement rights refers to the formal determination by the relevant authority that a person does not, or no longer, hold the right to reside in Germany under the Freedom of Movement Act (Gesetz über die allgemeine Freizügigkeit von Unionsbürgern, FreizügG/EU). The foreigners authority (Ausländerbehörde) issues a written declaration of loss (Verlustfeststellungsbescheid), which immediately alters the person’s residence status.

The legal basis is Section 6 of the FreizügG/EU in conjunction with Articles 27 et seq. of EU Directive 2004/38/EC (the Citizens’ Rights Directive).

The most common basis for a declaration of loss is the existence of a threat to public policy or public security. Strict requirements apply: a criminal conviction alone is not sufficient. What is required is that the person’s individual conduct represents a genuine, current, and sufficiently serious threat affecting a fundamental interest of society. Past conduct alone does not meet this threshold.

In practice, this is regularly contested in proceedings with the authorities — particularly where a conviction dates back some time, or where the basis for a prognosis of reoffending is not convincingly established.

A typical example: an EU citizen is convicted of a drug offense and serves a custodial sentence. After release, the foreigners authority initiates loss proceedings. What matters is not the conviction itself, but whether there are concrete grounds to conclude that the person continues to pose a threat — for example, because they have not undergone treatment or lack social integration. If, by contrast, the person has fully served their sentence, completed treatment, and has had no further criminal record over several years, it becomes considerably harder to establish a current threat.

A declaration of loss may also be issued under Section 5(4) of the FreizügG/EU in conjunction with Article 14 of the Citizens’ Rights Directive where the conditions for free movement are no longer met. For example: an EU citizen working as an employee in Germany holds free movement rights on that basis. They lose their job, fail to register as unemployed, and take up no new employment. After some time, the foreigners authority determines that neither employment nor sufficient means of subsistence are present and initiates loss proceedings.

The authority may not, however, withdraw free movement rights in a mechanical or automatic way. Article 14(3) of the Citizens’ Rights Directive expressly provides that the mere receipt of social benefits may not automatically lead to a declaration of loss. The authority must carry out a proportionality assessment in each case — taking into account the length of residence, personal ties, and the specific circumstances behind the loss of qualifying status.

Where free movement rights were obtained by deception, fraud, or abuse, a declaration of loss may be issued under Section 2(4) of the FreizügG/EU. The most significant case in practice is the marriage of convenience: a third-country national derives their right of residence from an EU citizen despite the absence of a genuine marital relationship, the marriage having been contracted solely for the purpose of obtaining residence rights. Other scenarios include false declarations about employment status or the level of financial means.

The authorities are entitled to carry out necessary checks in such cases, but may not systematically intrude on the private lives of those concerned. Mere suspicion or circumstantial evidence is not sufficient to support a declaration of loss — the deception must be established.

The law provides tiered levels of protection determined by length of residence. Persons who hold the permanent right of residence — acquired after five years of lawful residence — may only lose their free movement rights on serious grounds of public policy or public security. Persons with more than ten years of residence in Germany, and minors, may only be expelled on imperative grounds of public security — a significantly higher threshold that is rarely met in practice.

These tiered protections are set out in Sections 6(4) and 6(5) of the FreizügG/EU and have been further defined through the case law of the Court of Justice of the European Union and the German administrative courts.

The declaration of loss is issued by the foreigners authority at the person’s place of residence. It takes the form of a written administrative decision and is typically accompanied by a requirement to leave the country and, in most cases, an entry and residence ban.

Before the decision is issued, the person concerned must as a rule be given the opportunity to be heard. This stage of the proceedings matters: it is the opportunity to put forward mitigating circumstances and personal ties — such as family situation and professional integration — before the authority makes its decision. Legal representation at this stage is advisable, as a well-prepared submission can materially influence the outcome.

The following remedies are available against a declaration of loss.

• Objection (Widerspruch): An administrative objection may be lodged with the issuing authority within the period specified in the decision. The objection generally has suspensory effect, meaning the obligation to leave Germany cannot be enforced while proceedings are pending.
• Action before the administrative court (Anfechtungsklage): If the objection is unsuccessful, the next step is to bring a legal challenge before the relevant administrative court (Verwaltungsgericht). The court conducts a full review of the declaration of loss, examining both the facts and the applicable law.
• Application for suspensory effect: Where the authority has excluded the suspensory effect of an objection or legal challenge, interim relief may be sought from the administrative court to prevent enforcement of the decision while proceedings continue.

Given the strict deadlines involved and the complexity of the proceedings, legal advice should be sought immediately upon receipt of the decision.