EU Free Movement: The Permanent Right of Residence (FreizügG/EU)

EU citizens living in Germany are entitled to reside there under the EU free movement rules, but this basic right comes with conditions — employment, self-sufficiency, or qualifying family ties — that must continue to be met. The permanent right of residence removes those conditions entirely.

The status is governed by Section 4a of the Freedom of Movement Act (Gesetz über die allgemeine Freizügigkeit von Unionsbürgern, FreizügG/EU) and by Articles 16 et seq. of EU Directive 2004/38/EC (the Citizens’ Rights Directive). It arises automatically by operation of law once the five-year qualifying period has elapsed and does not require an administrative decision. The foreigners authority (Ausländerbehörde) will issue a certificate of permanent residence upon application, but this certificate is purely declaratory in nature — it confirms a status that already exists rather than creating one.

Once the permanent right of residence has been acquired, there is no further requirement to demonstrate compliance with the conditions of Section 2 of the FreizügG/EU – such as being in employment or having sufficient means of subsistence. The status exists independently of the holder’s economic circumstances.

The fundamental requirement is five years of lawful and uninterrupted residence in the host member state. Residence is lawful where it is based on one of the grounds listed in Section 2 of the FreizügG/EU – for example, as an employed person, a self-employed person, or an economically inactive person with sufficient means of subsistence. In practice, German authorities assess the sufficiency of means against the threshold at which entitlement to social assistance would arise – meaning a person living on savings or investment income must be able to demonstrate they can support themselves without recourse to German state benefits.

Periods during which the conditions for free movement were not met — because, for example, the person concerned was living in Germany without work and without sufficient means – do not in principle count toward the five-year period.

Short absences do not break the qualifying period, though the rules vary depending on the reason for and duration of the absence. Temporary absences of up to six months per year are treated as not interrupting continuity. Continuity is also unaffected by absence for the purpose of compulsory military service or an equivalent alternative service, as well as by a single absence of up to twelve consecutive months for an important reason, in particular pregnancy and childbirth, a serious illness, study, vocational training, or a work-related posting abroad (Section 4a(6) of the FreizügG/EU). An absence due to a custodial sentence or pre-trial detention, however, does interrupt the period.

Section 4a(2) of the FreizügG/EU provides that the permanent right of residence may be acquired before the expiry of the five-year period in certain circumstances — in particular for employed or self-employed persons who, upon retiring, meet specified age and residence thresholds, and for persons who have become permanently incapacitated for work as a result of an occupational disease or workplace accident. Eligibility in these cases depends on individual circumstances and legal advice should be sought.

Third-country national family members — including non-EU spouses, children, and other qualifying relatives such as dependent parents — acquire the permanent right of residence after five years of lawful residence as the family member of an EU citizen. A prerequisite is that the EU citizen was themselves entitled to free movement throughout this period. Once permanent residence has been acquired, the family members’ right of residence is no longer dependent on the EU citizen’s status.

The permanent right of residence differs from basic free movement status in several material respects.

Holders of the permanent right of residence are no longer required to demonstrate to the authorities that they are in employment or have sufficient means of subsistence. The receipt of social benefits may, under the basic free movement rules, indicate that the conditions for free movement are no longer met. With permanent residence status, this basis for challenge no longer applies.

A declaration of loss of the right of residence against a holder of the permanent right of residence is only possible on serious grounds of public policy or public security (Section 6(4) of the FreizügG/EU). This standard is considerably stricter than that applicable to basic free movement status, which can be overcome on the basis of a present threat to public policy. Where a person has resided in Germany for more than ten years, or in the case of minors, only imperative grounds of public security are sufficient.

Holders of the permanent right of residence enjoy an unconditional right of free movement — regardless of employment status or means of subsistence. This also has direct implications for family reunification: third-country national family members may join the holder without the principal rights holder having to demonstrate current compliance with the conditions of Section 2 of the FreizügG/EU. Unlike the position under basic free movement status, there is no risk that a temporary loss of employment or a period of illness will jeopardize a pending application for family reunification or call into question an already existing derived right of residence.

The permanent right of residence under the FreizügG/EU and the settlement permit (Niederlassungserlaubnis) under Section 9 of the Residence Act (Aufenthaltsgesetz, AufenthG) are two distinct legal instruments that are frequently confused.

The essential distinction is as follows. The permanent right of residence applies to EU citizens and their family members and arises by operation of law after five years, without any application, without a language requirement, and without proof of financial self-sufficiency. The settlement permit applies to third-country nationals, requires a formal application, and is subject to a range of additional conditions – including language proficiency, financial self-sufficiency, and periods of contribution to Germany’s statutory pension insurance system.

For third-country national family members of an EU citizen who have acquired the permanent right of residence under the FreizügG/EU, a settlement permit is not generally required – their residence status is already secure. The AufenthG becomes relevant only where EU free movement rights lapse entirely – for example, where a non-EU national can no longer derive free movement rights from a qualifying family relationship. In such cases, a formal residence title application under the AufenthG will be required, and a permanent EU residence permit may also be an option for those who qualify.

Although the permanent right of residence arises by operation of law, applying for the certificate from the foreigners authority carries significant risks in practice. Authorities not infrequently refuse applications or call the applicant’s residence status into question, sometimes with far-reaching immigration consequences.

The foreigners authority may refuse to issue the certificate where it takes the view that the conditions of Section 4a of the FreizügG/EU are not met. In practice, the following grounds for refusal arise particularly often:

• Non-recognition of periods of residence: the authority does not recognize certain periods as lawful residence, for example because the person concerned was not employed during that time and cannot demonstrate sufficient means of subsistence.
• Interruption of the five-year period: extended periods abroad, as well as periods without an entitlement to free movement, can lead the authority to treat the five-year period as interrupted. The same applies to time spent serving a custodial sentence. In its judgments of January 16, 2014 (C-378/12, Onuekwere; C-400/12, M.G.), the Court of Justice of the European Union held that periods of imprisonment can neither be counted toward the five-year period nor preserve the continuity of residence. German courts have extended this case law to periods of pre-trial detention that result in a custodial sentence.
• Insufficient evidence: where registration confirmations (Meldebestätigungen, official proof of address registration) are missing for particular periods, or extended absences cannot be evidenced by one of the legally recognized grounds (Section 4a(6) of the FreizügG/EU), the authority may treat continuous lawful residence as interrupted and refuse the certificate.
• Doubts as to family member status: for third-country national family members, the authority examines not only the EU citizen’s status but also whether the family member actually lived together with the EU citizen on a continuous, lawful basis in Germany during the relevant period. Gaps in the principal rights holder’s status or missing evidence of cohabitation can jeopardize the claim.
• A declaration of loss of the right of free movement: where the authority concludes, in the course of examining the application, that the conditions of Section 2(1) of the FreizügG/EU were never met, or ceased to be met at some point, it may issue a declaration of loss (Verlustfeststellung) under Section 5(4) of the FreizügG/EU. A declaration of loss is a declaratory administrative act: it does not itself impose an obligation to leave Germany, but it creates the legal basis for such an obligation to arise and to be enforced by deportation if necessary. It therefore goes considerably further than a mere refusal of the certificate, as refusal of a certificate or residence card alone is not sufficient to give rise to an obligation to leave; an express declaration of loss is required. Until such a declaration is issued, the so-called presumption of free movement (Freizügigkeitsvermutung) applies, meaning the EU citizen is treated, for immigration purposes, as though their right of free movement still exists.

For third-country national family members, current law provides that the declaration of loss alone is sufficient to give rise to an obligation to leave Germany. A separate revocation or withdrawal of an already issued residence card or permanent residence card is no longer required.

If the application for the certificate is refused, the applicant has legal remedies available to them. Which route to take first depends on the federal state (Bundesland) in question. In states where the objection procedure (Widerspruchsverfahren) is still available in immigration matters, such as Baden-Württemberg, for example, an objection must first be lodged with the competent authority. If the original authority does not uphold the objection, the superior objection authority decides by way of a formal objection decision (Widerspruchsbescheid). In many other federal states, including Bavaria and North Rhine-Westphalia, the objection procedure has been abolished for immigration matters, and an action may be brought directly before the administrative court. In both cases, the appropriate form of action is a mandatory action (Verpflichtungsklage) under Section 42(1) of the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung, VwGO), seeking an order that the certificate be issued.

Because every refusal reflects the authority’s assessment of the applicant’s immigration status, those affected should seek legal representation. Our lawyers review the grounds for refusal, assess the prospects of success of an appeal, and represent clients before the foreigners authority and the courts.

The permanent right of residence is not irrevocable. It lapses when the holder’s absence from Germany exceeds two consecutive years and is due to a reason that is not, by its nature, merely temporary (Section 4a(7) of the FreizügG/EU). An extended period abroad, for example, a stay of several years, can therefore lead to the loss of a hard-won status without any administrative decision being required.

The permanent right of residence may also be withdrawn by a formal declaration of loss (Verlustfeststellung) issued by the foreigners authority, but only on serious grounds of public policy or public security. The threshold is considerably higher than that applicable to basic free movement status. In practice, this arises primarily in cases of serious criminal conduct, such as convictions for serious violent or sexual offenses, or for organized drug trafficking. Those facing both criminal proceedings and potential immigration consequences, including the risk of extradition or Interpol involvement, should seek specialist legal advice at the earliest opportunity.

Anyone uncertain whether their permanent right of residence is still in force, or whether it may have lapsed due to a prolonged absence, should seek legal advice at an early stage, as the consequences of an undetected loss of status can be significant. At Schlun & Elseven, our lawyers will assess your situation and advise you on the options available to you.