What If You Qualify for a Visa or Passport… But Your Spouse Doesn’t?

Here are some typical scenarios that arise when I consult with International Living subscribers…

1. A couple applies for a passive income visa in a European country. They quickly learn that only one of them is treated as the main applicant. What about the spouse?
2. One spouse successfully applies for citizenship by ancestry in a European country. How does the other spouse live with them?

The answer is straightforward but little known. Here’s the story…

EU Directive 2003/86/EC sets minimum standards for family reunification rights for non-EU nationals legally living in an EU country for at least one year, and who hold a residence permit that offers the prospect of permanent residence.

That last clause is important. Not all visas qualify towards permanent residence.

For example, the Greek Financially Independent Person visa doesn’t count towards permanent residency status or naturalization. You can remain in Greece as long as you continue to qualify, but it’ll always be a renewable temporary permit with no long-term settlement rights. France’s long-stay visitor visa is the same.

But anyone with residence rights that count towards permanent residency—if you hold Portugal’s D7 passive income visa, for example—has the right for their spouse, minor children, and in some cases, dependent adult children and parents to live with them.

Thanks to that EU directive, the right to family reunification supersedes some national laws.

EU member states have discretion, however, over the conditions of family reunification. Typically, these include a requirement that the family’s accommodation meets national standards, enough income to support the family without relying on welfare, and health insurance that covers all family members.

But some states go further. Italy and France, for example, make applicants who didn’t bring their family with them they applied for their visa, wait up to two years before family can join. Nine countries, including Germany, Austria, and Italy, don’t accept unmarried spouses for family reunification purposes. Each member state can set its own rules about “stable and regular income.” And there is no EU requirement to include dependent adult children and parents… that’s up to each country.

This limited flexibility allows European nations to tweak their residency programs to encourage or discourage particular categories of immigrants.

A recent court case in Portugal showed how this can cause problems.

Portugal’s May elections produced a center-right coalition with support from the far-right Chega Party, now the country’s second largest. Like other nativist parties in Europe, Chega is strongly opposed to most immigration. To secure Chega support for other legislative priorities, the ruling coalition passed a law that would have imposed a two-year waiting period for most immigrants wanting to bring family members to Portugal and limited reunification to spouses and minor children.

Investment visa holders and highly qualified workers, however, would have been exempt from these restrictions, maintaining immediate reunification rights for extended family. And anybody applying for a residence visa for the first time who includes family members on their application, would be processed as usual with no waiting period.

In other words, Portugal’s parliament passed a law that openly discriminates against some immigrants and not others. Some immigrants can bring their families right away but everybody else must wait. Immigrants’ rights groups immediately launched a legal bid to have the law declared unconstitutional.

Portugal’s Supreme Court ruled against the government, declaring that imposing a mandatory two-year waiting period before immigrants can apply for family reunification is “likely to lead to the separation of family members,” violating EU law and Portuguese constitutional protections.

The court, however, also ruled that there was no constitutional barrier to extend special family reunification privileges to certain types of immigrants, i.e., the wealthy and highly skilled. It’s just that the gap between their rights and those of everyone else as proposed in the Foreigners’ Law was a bit too big to pass constitutional muster.

This episode shows how even immigrant-friendly countries like Portugal can change their rules without warning. All it takes is an election.

In this case, Portuguese politicians were aiming at Brazilians and others who come to Portugal to work in low-income jobs who subsequently try to bring their family members into the country. It wouldn’t affect people applying for passive income or digital nomad visas

But cases like this can cause a lot of confusion and even lead some people to abandon an application because they’ve heard news like this and assume it applies to them.

So, if moving to Europe is in your future plans—this episode highlights more than ever that you need a good source of reliable up-to-date information…

(As always, you can book a personal consultation with me right here.)