EU free movement is, first and foremost, a right belonging to EU citizens. Third-country nationals — persons who do not hold the nationality of an EU member state — can, however, benefit from the free movement rights of an EU citizen under certain conditions. Whether and to what extent this applies depends on the family relationship in question, whether the parties are genuinely living together, and the EU citizen’s own residence status.
Free movement rights for third-country nationals differ fundamentally from family reunification under the Aufenthaltsgesetz (the German Residence Act, AufenthG): they are not tied to the German nationality of the sponsoring family member, but to that person’s status as an EU citizen who is exercising free movement rights. The legal requirements under this route are in some respects considerably more favorable — and the protections considerably stronger — than under general residence law.
At Schlun & Elseven Rechtsanwälte, our immigration lawyers advise and represent third-country national family members on all questions relating to derived free movement rights, from initial entry to disputes with the authorities over residence status.
Who Qualifies as a Family Member under EU Free Movement Law?
The Freizügigkeitsgesetz/EU (the German law implementing EU free movement, FreizügG/EU) distinguishes between favored family members who hold an immediate right of residence, and other family members for whom a right of residence arises only under more demanding conditions.
Favored Family Members
Under Section 3 FreizügG/EU in conjunction with Article 2(2) of Directive 2004/38/EC, the following persons hold a derived free movement right, provided they accompany or join the EU citizen:
- Spouses and registered civil partners
- Direct descendants (children and grandchildren) up to the age of 21, or beyond that age if they are financially supported by the EU citizen
- Direct ascendants (parents and grandparents), provided they are financially supported by the EU citizen
Other Family Members
In addition, Section 3a FreizügG/EU in conjunction with Article 3(2) of Directive 2004/38/EC covers persons who do not fall within the above definition but are nonetheless close to the EU citizen. This includes, in particular, unmarried partners in a durable relationship that can be substantiated, as well as other dependent relatives. These persons do not hold an automatic right of residence; however, the authorities are required to facilitate their entry and residence and to carry out a thorough examination of their individual circumstances.
Requirements for the Derived Right of Residence
The right of residence of a third-country national family member is accessory in nature: it exists only for as long as the EU citizen is themselves entitled to free movement and is actually exercising that right. If the EU citizen is not present in the host member state, or does not meet the conditions of Section 2 FreizügG/EU, the family member’s derived right does not, as a general rule, come into existence.
For the EU citizen to qualify, they must fall within one of the categories recognized under Section 2 FreizügG/EU — for example, as a worker, self-employed person, student, or person with sufficient resources to support themselves without recourse to public funds. The family member’s right of residence rises and falls with this status. If the EU citizen loses their right of free movement — for instance, because they are no longer employed and do not have sufficient resources — this can affect the derived right of the third-country national family member as well.
Of practical importance is also the requirement that the family unit must be genuinely lived. A purely formal family relationship or marriage is not sufficient; the authorities examine in particular — where spouses are concerned — whether a genuine marital partnership exists. Both parties should be prepared to demonstrate that they share a household and maintain a real relationship in day-to-day life. This requirement applies not only at the point of application but can be revisited by the authorities at any stage.
Entering Germany: Visa Requirements
Third-country nationals from countries subject to visa requirements generally need a visa before entering Germany. The FreizügG/EU simplifies this process considerably: once the conditions for free movement are demonstrated, the visa must be issued. Unlike family reunification under the AufenthG, no German language certificate is required, and no minimum income threshold applies to the EU citizen sponsor.
Nationals of certain countries are exempt from the visa requirement and may enter Germany without a visa to apply for the residence card directly. Whether a visa is required depends on the applicant’s nationality. Our immigration lawyers can advise on the requirements that apply to your specific situation before you travel.
Applying for the Residence Card (Aufenthaltskarte)
Third-country national family members are required to have their right of residence confirmed by means of a residence card (Aufenthaltskarte) under Section 5 FreizügG/EU. The application is made at the competent Ausländerbehörde after arrival in Germany.
The card is purely declaratory in nature: it confirms a right that already exists by operation of law, but does not constitute or create it. That said, the obligation to apply for the card is a separate legal requirement, and holding the card is important in practice — for example, when demonstrating lawful residence to employers, landlords, or other authorities.
The documentation required as part of the application will depend on the individual circumstances of the case. The residence card is issued for five years and must be renewed if the family member’s residence in Germany continues beyond that period.
Independent Right of Residence after Dissolution of the Family Unit
As a general rule, the derived right of residence ends when the family unit is dissolved. The FreizügG/EU provides, however, for important exceptions in Section 3(4) and (5) FreizügG/EU:
- On the death or departure of the EU citizen, the family member’s right of residence is retained under certain conditions — in particular where the family member has already resided in Germany for at least one year.
- On divorce or dissolution of a registered civil partnership, an independent right of residence can arise where the marriage or partnership lasted for at least three years, of which at least one year was spent in Germany, or where the third-country national partner holds parental responsibility for the EU citizen’s children.
- Where domestic violence has occurred within the marriage, an independent right of residence can arise regardless of the length of the marriage.
EU Free Movement vs. Standard Family Reunification: Key Differences
For many third-country nationals, understanding which legal route applies is the first and most important question. The table below sets out the principal differences between the EU free movement route under the FreizügG/EU and the standard family reunification route under the AufenthG.
| EU Free Movement (FreizügG/EU) | Standard Family Reunification (AufenthG) | |
|---|---|---|
| German language requirement | Not required before entry | Generally required at A1 level before entry |
| Minimum age | None | Both spouses generally required to be at least 18 |
| Income threshold | Not required where EU citizen is employed or economically active | Sponsor must demonstrate sufficient income |
| Protection against loss of residence | Stronger — governed by the FreizügG/EU | Standard AufenthG framework applies |
| Applicable to German nationals | Only where the German national has previously exercised free movement rights abroad | Yes — the standard route for reunification with German nationals |
These differences can be significant in practice. Whether the EU free movement route is available in your situation, and whether it is the more advantageous path, depends on the specific circumstances. Our immigration lawyers can assess both routes and advise on which applies.
Distinction from Family Reunification under the AufenthG
Free movement rights presuppose that an EU citizen has exercised the right to move to another member state. A German national who has always lived in Germany has never exercised that right, and their third-country national partner therefore falls, as a general rule, outside the scope of the FreizügG/EU — meaning that reunification must instead be pursued under the AufenthG. This route typically involves stricter requirements, including a language certificate.
The position is different where the German national has genuinely made use of their free movement rights — for example, by living and working in another member state for several years before returning to Germany with their partner. In such cases, the Court of Justice of the European Union has held that the FreizügG/EU applies, and that the partner is entitled to benefit from its more favorable provisions. This point is frequently overlooked in practice, with the result that those affected unnecessarily take the more demanding route under the AufenthG.
EU Free Movement for Third-Country Nationals: How Schlun & Elseven Can Help
At Schlun & Elseven Rechtsanwälte, our immigration lawyers have advised international clients on German immigration and residence law for over a decade. We work in English and represent clients from across the world — whether you are applying for a residence card from abroad, are already in Germany, or are dealing with a change in circumstances such as separation or divorce. As a full-service firm, we are well placed to advise on the wider legal questions that frequently arise alongside free movement matters, from employment and family law to questions of parental responsibility. We operate on a digital-first basis, meaning our services are fully accessible regardless of where you are based.
Frequently Asked Questions on EU Free Movement for Third-Country Nationals
This depends on your nationality. Third-country nationals from visa-required countries — such as India, Morocco, Algeria, and Nigeria — require an entry visa. That visa must, however, generally be issued where the conditions of the FreizügG/EU are demonstrated.
As a general rule, yes – the right of residence is accessory in nature. Exceptions apply, for example, in the event of the EU citizen’s death, or where specific protective grounds exist. Where an independent right of residence has already arisen – such as through three years of marriage spent in Germany – that right is retained.
An independent right of residence can arise where the marriage lasted for at least three years and at least one of those years was spent in Germany, or where you hold parental responsibility for children of the marriage. A special rule applies in cases of domestic violence, independently of the length of the marriage.
As a general rule, no — reunification with a German national is governed by the AufenthG. An exception applies where the German partner previously exercised free movement rights in another EU member state and has since returned to Germany.
Unmarried partners are not treated as favored family members under the FreizügG/EU in the same way that spouses are, but they are not excluded entirely. Where a durable relationship can be substantiated – demonstrated through evidence of a genuine, long-standing partnership – the authorities are required to facilitate entry and residence and to examine the individual circumstances of the case. The outcome is less certain than for married couples, and the evidentiary requirements are more demanding. Legal advice is particularly important in this situation.
The documentation requirements vary depending on the individual case and the Ausländerbehörde handling the application. Our immigration lawyers can advise on what will be required in your specific situation before you submit your application.
Practice Group: Our German Immigration Lawyers
Practice Group:
Our German Immigration Lawyers
