With the Act on the Adaptation of the Freedom of Movement Act/EU and Other Provisions to Union Law, the legal status of related persons was included in the freedom of movement law in November 2021. The new provision was made to avert a conviction in an infringement procedure of the European Commission (number 2011/2086).
The inclusion of § 3a of the Freedom of Movement Act/EU raises a number of questions, as the legislator mixes the scope of application of the Residence Act and the Freedom of Movement Act.In particular, the provision of section 11(5) of the Freedom of Movement Act/EU makes it clear that it is not a matter of freedom of movement in which a legal status under Union law is only implemented declaratorily. The provision of Section 3a of the Freedom of Movement Act/EU is a national residence title that constitutively establishes the rights of close relatives. Consequently, the legal status is conferred and not merely certified - as is otherwise customary. Furthermore, the rights are not certified ex officio, but require an application. If one adds the necessity of securing a livelihood, compliance with the visa procedure and the possibility of subsequently shortening the period of validity of the right of residence, the thought suggests itself that the new regulation would have been better located in § 36 Residence Act.
The location within the framework of Section 36 of the Residence Act also seems appropriate in view of the group of persons benefiting from it: Relatives of the Union citizen in the collateral line, foster children or children under guardianship, as well as de facto life partners.
Since the Court of Justice of the EU had clarified in the Rahman case that Union law does not require a right of entry and residence, but merely contains the obligation to include a facilitating provision in national law that puts the aforementioned group of persons in a better position than other third-country nationals, it was not necessary to include the provision in the Freedom of Movement Act/EU.
Including this legal status will entail a number of application problems that will be difficult to reconcile with the basic concept of the law on the free movement of persons.
