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Is Swedish migration law for EU spouses legal? According to EU law for self sufficiency, as long as funds are available to the EU citizen, there is no requirement on where it must come from.

The Swedish Migration Agency however, states that income from partners residing in Sweden with the EU citizen does not count towards the right of residency. In Commission of the European Communities v Kingdom of Belgium Case no. C-408/03 European Court Reports 2006 I-02647 the court stated:

A Member State fails to fulfil its obligations under Article 18 EC and Directive 90/364 on the right of residence if, when applying that directive to nationals of a Member State who wish to rely on their rights under that directive and on Article 18 EC, it excludes the income of a partner residing in the host Member State in the absence of an agreement concluded before a notary and containing an assistance clause in order to assess whether the person concerned has sufficient resources.

Based off my non-legal interpretation, the above clearly states that member states are breaching EU law by disregarding income from partners residing in the host member state.

So my question is, is the Swedish Migration Agency's position legal by denying a residency card on sufficient funds from a partner income in host member state?

Ashley
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There are two things to consider in turn: your partner's right to stay in Sweden and your own. Even if your partner doesn't need a residence card or could reside on another basis like the Nordic agreement, they need to establish that they are making use of their freedom of movement rights for you to enjoy the same rights.

As an EU citizen, there are four ways for your wife to qualify for a right to reside in Sweden for more than three months: being a worker, a student, the partner of another EU citizen, or qualifying as an “economically non-active” resident. It's only in the latter case, staying under article 7(1)(b) of directive 2004/38/EC, that resources (and health insurance) come into play. I therefore assume your partner isn't working in Sweden as that's the only scenario in which the Swedish Migration Agency may ask either of you about financial resources.

Once your EU citizen spouse has established that she has “sufficient resources for themselves and their family members […]” then your right to stay in Sweden with her is straightforward:

  1. The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c).

Note that there are no additional conditions. The Union citizen needs to satisfy the conditions in article 7(1), you (their spouse) do not. You only need to establish two facts: she is making use of her freedom of movement rights (i.e. she resides in Sweden under one of the situation discussed above) and the two of you are indeed spouses living together. Any other requirement is illegal, the only valid reason to deny you the right to live with your spouse is national security and the like.

Leaving aside students and families where all members are EU citizens, there are therefore two obvious scenarios:

  • Your partner works in Sweden, both of you can live in Sweden irrespective of your resources or employment situation
  • Your partner has sufficient resources for the two of you, both of you can live in Sweden but you need to prove that she has sufficient resources to get your residence card

The case you found is about a slightly less obvious scenario when the EU citizen would not be able to reside as a economically non-active person without the resources of the third-country (non-EU) citizen. Even in this case the court found that it would be illegal for a country to deny this family the right to reside under EU law. But you wrote in a comment that you are relying on your wife's savings so you don't even need to rely on this case, your situation ought to be a straightforward application of article 7(2) of the directive.

By contrast, if both of you want to rely on your employment income in Sweden then you would be in an analogous situation. It ought to be possible but it's a more complex argument. The most difficult thing in this case is to secure the right to work for the non-EU citizen in the first place. Once you're working and have an income then yes, it should count but it is easier to rely on the EU citizen's savings if you can.

The Swedish Migration Agency however, states that income from partners residing in Sweden with the EU citizen does not count towards the right of residency. […] So my question is, is the Swedish Migration Agency's position legal by denying a residency card on sufficient funds from a partner income in host member state?

Without having read the decision, it that's really the sole reason they invoked then yes it is clearly illegal.

Note that Sweden has long been breaking EU freedom of movement law in other respects related to their personal number so it wouldn't be surprising if they did it in this case as well. If the website found by JBentley is anything to go by, it's also possible the Agency is breaking local law in this specific decision, something that an appeal ought to resolve.

Whether all this results from improper implementation of the directive in Swedish law, some illegal policy from the Swedish Migration Agency or a mistake in this individual decision doesn't change your rights.

Relaxed
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Frame challenge: it appears that you can rely on income from other people to establish self sufficiency:

As a citizen of another EU or EEA country than Sweden you have right of residence if you can show that you have sufficient funds, i.e., sufficient money to live on and support yourself in Sweden.

...

If you intend to live on another person’s assets

You need to show the following:

  • a letter or document confirming that the other person can support you
  • documents showing that this person is able to support you, such as a bank balance statement

If you think that's wrong, please provide a link to an official Swedish government page stating a policy which supports your claim.

JBentley
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