residency laws and regulations

8/12/2019 Residency Laws and Regulations

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RESIDENCY LAWS AND REGULATIONS:

EUROPEAN STANDARDS AND

COMPARATIVE STATE PRACTICE

Legal Memorandum

May 2013


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Residency Laws and Regulations, May 2013


EUROPEAN STANDARDS AND COMPARATIVE STATE PRACTICE

Executive Summary

The purpose of this memorandum is to provide an overview of laws

regulating residency, voting, and social services and benefits through an

examination of state and European Union (EU) practices and an analysis of how

states and the EU have provided for those rights.

One of the fundamental principles of the European Union is the freedom of

movement of citizens between member states. Accordingly, all EU states (as well

as Switzerland, which guarantees freedom of movement through bilateral treaties

with the EU) have laws that provide flexibility for people moving across and

within their borders.

At the state level, Germany, Spain, Belgium, and Switzerland regulate

residency through their constitutions and legislation. The right to vote and the

right to social services and benefits may be available to a person residing in a host

state but come with requirements, such as living in the host state for a certain

period of time, registering residency at the town hall, or contributing a portion of a

citizens income to receive certain social services and benefits.


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Residency Laws and Regulations, April 2013

TABLE OF CONTENTS

Statement of Purpose 1

Introduction 1

Residency Rights and Standards in the European Union 1

The Right of Residence and Freedom of Movement 3

Temporary Residence 4

Permanent Residence 5

The Right to Vote 5

The Right to Social Services and Benefits 7

Residency Rights and Standards in Germany 9

The Right of Residence and Freedom of Movement 9The Right to Vote 10


Residency Rights and Standards in Spain 13


The Right to Vote 15


Residency Rights and Standards in Belgium 16




Residency Rights and Standards in Switzerland 21




Conclusion 26


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EUROPEAN STANDARDS AND COMPARATIVE STATE PRACTICE

Statement of Purpose

The purpose of this memorandum is to provide an overview of laws

regulating residency, voting, and social services and benefits through an

examination of state and European Union (EU) practices and an analysis of how

states and the EU have provided for those rights.

Introduction

The right to residence, the right to freedom of movement, the right to vote,

and the right to social services and benefits are common provisions among states in

the EU. The right to residency and free movement compliment each other and areprotected by both state constitutions and legislation and are common practices in

Germany, Spain, Belgium, and Switzerland. Though Switzerland is not an EU

member, bilateral agreements between Switzerland and the EU give Swiss citizens

freedom of movement within EU states.

Freedom of movement is one of the fundamental principles of the EU. This

means that EU citizens have the freedom to move among the EU member states

with very few restrictions. The EU requires harmonization of legislation among its

member states to ensure that EU citizens rights are not infringed or abused. EU

member states are discouraged from preventing freedom of movement between

states, and are therefore unlikely to prevent freedom of movement within their own

borders.

As long as a citizen of a state follows proper registration and contribution

requirements, he/she is entitled to the right to vote and the right to social services

and benefits. Under EU laws and regulations, states must provide compelling

reasons to take away the right of residency, freedom of movement, right to vote,

and the right to social services and benefits.

Residency Rights and Standards in the European Union

The EU is founded on many basic values, which include respect for human

dignity, freedom, democracy, equality, the rule of law and respect for human


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rights, including the rights of persons belonging to minorities.1 Citizens of EU

states automatically hold EU citizenship in addition to national citizenship.2

Inherent in EU citizenship are the right to move and reside freely within the

territory of any member state,3the prohibition on nationality discrimination,

4and

the right to vote and stand as candidates in the European Parliament and municipal

elections in the persons member state of residence under the same conditions as

nationals of that state.5 Article 18 of the Treaty on the Functioning of the

European Union (TFEU) prohibits discrimination on the grounds of nationality,6

meaning that the constitutions of EU member states apply to both host member

state citizens and residents from other EU member states present in that host

member state, regardless of nationality. For instance, the Spanish Constitution

applies to both Spanish citizens and non-Spanish EU citizens residing in Spain.

The EU has entered into bilateral agreements with the non-EU European

Economic Area (EEA) states (Norway, Iceland, and Liechtenstein), whichincorporates EU legislation relating to the free movement of goods, workers,

capital, and persons.7 The EU has also entered into bilateral agreements with

Switzerland to ensure the free movement of persons, which includes the right to

enter, work, and live between the territories of EU member states and Switzerland.8

1Treaty on European Unionart. 2 (1993), available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0013:0046:en:PDF.2Treaty on the Functioning of the European Unionart. 20 (1958), available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:115:0047:0199:EN:PDF; Treaty on European Unionart. 9(1993), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0013:0046:en:PDF.3Treaty on the Functioning of the European Unionart. 21 (1958), available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:115:0047:0199:EN:PDF.4Treaty on the Functioning of the European Unionart. 18 (1958), available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:115:0047:0199:EN:PDF.5Treaty on the Functioning of the European Unionart. 22 (1958), available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:115:0047:0199:EN:PDF; Treaty on European Unionart.

10(3) (1993), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0013:0046:en:PDF.6Treaty on the Functioning of the European Unionart. 18 (1958), available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:115:0047:0199:EN:PDF.7Agreement on the European Economic Area(1994), available at http://www.efta.int/~/media/Documents/legal-texts/eea/the-eea-agreement/Main%20Text%20of%20the%20Agreement/EEAagreement.pdf; EFTA,EEA

Agreement(Apr. 17, 2013), available athttp://www.efta.int/eea/eea-agreement.aspx.8Schengen Agreement(European Union and Swiss Confederation, 2008), available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:053:0001:0002:EN:PDF; EEAS (European External

Action Service), Switzerland(Apr. 17, 2013), available at http://eeas.europa.eu/switzerland/index_en.htm.


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The Right of Residence and Freedom of Movement

The TFEU provides that citizens of the EU have the right to move and reside

freely within the territory of EU member states.9 The combination of the right to

free movement and nondiscrimination based on nationality are further elaborated

upon in the Citizenship Directive (CD), Directive 2004/38/EC.10

All EU citizens

have a right of residence for up to three months in another member state without

being subject to any formalities or conditions.11

An EU citizen can take advantage

of this three-month period as long as he holds a valid identity card or passport of a

member state12

and he does not become an unreasonable burden on the social

assistance system of the host state.13

This right is extended to family members of

EU citizens who are not EU citizens themselves.14

Under the CD, the rights to freedom of movement and residence of EU

citizens are subject to restrictions on grounds of public policy, public security, andpublic health, regardless of nationality.

15 Restrictions on the right of entry and exit

must conform with the principle of proportionality, which means that the means

that the restrictions apply must be proportionate to a legitimate aim of the state.16

For instance, inRegina v. Bouchereau, a United Kingdom (UK) court

recommended deportation of a French national who was convicted of illegal

possession of drugs, which is a punishable offense under the Misuse of Drugs Act

1971.17

The European Court of Justice (ECJ) determined that member state

authorities have the discretion to impose certain restrictions on the freedom of

movement of persons as long as there is a genuine and serious threat to public

9Treaty on the Functioning of the European Unionart. 20(2)(a) (1958), available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:115:0047:0199:EN:PDF.10Directive 2004/38/EC of the European Parliament and of the Council(2004), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:158:0077:0123:en:PDF.11Directive 2004/38/EC of the European Parliament and of the Councilart. 6 (2004), available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:158:0077:0123:en:PDF.12Directive 2004/38/EC of the European Parliament and of the Councilart. 6 (2004), available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:158:0077:0123:en:PDF.13Directive 2004/38/EC of the European Parliament and of the Councilart. 14(1) (2004), available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:158:0077:0123:en:PDF.14

Directive 2004/38/EC of the European Parliament and of the Councilart. 14(1) (2004), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:158:0077:0123:en:PDF.15Directive 2004/38/EC of the European Parliament and of the Councilart. 27(1) (2004), available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:158:0077:0123:en:PDF.16Directive 2004/38/EC of the European Parliament and of the Councilart. 27(1) (2004), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:158:0077:0123:en:PDF; Treaty on the European Union

art. 5 (1992), available athttp://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:115:0013:0045:EN:PDF.17Regina v. Bouchereau, Case 30-77, Judgment (Mar. 2, 1977), available athttp://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61977J0030:EN:HTML.


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policy affecting one of the fundamental interests of society.18

However, entry can

only be denied on a case-to-case basis for each individual and cannot be denied on

the basis of previous criminal convictions.19

All EU member states are parties to the European Convention on Human

Rights (ECHR). The ECHR gives a person who is lawfully living in a state the

right to freedom of movement and the freedom to choose where to live.20

The

ECHR also gives a person the freedom to leave any state.21

However, like the CD,

the ECHR allows restrictions on these rights that further interests in national

security or public safety in order to maintain public order, prevent crime, protect

health or morals, or protect the rights and freedoms of others.22

Temporary Residence

Under the CD, the right of residence in another EU member state for longer

than three months is subject to the condition that the EU citizen is working in thehost member state or is self-employed.

23 For periods of residence longer than three

months, a host member state may require an EU citizen to register his/her presence

in its territory with the relevant authorities.24

The deadline of registration may not

be less than three months from the date of arrival in the host state.25

The EU

citizen must have sufficient resources for himself and his family members in order

to not become a burden on the social assistance system of the host state.26

A

worker or self-employed person does not lose this right of temporary residence

when his status changes due to sickness or an accident, or he becomes

involuntarily unemployed after having been employed for more than a year and

registers as a job-seeker, or when the worker begins vocational training.27

18Regina v. Bouchereau, Case 30-77, Judgment (Mar. 2, 1977), available athttp://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61977J0030:EN:HTML.19Directive 2004/38/EC of the European Parliament and of the Councilart. 27(2) (2004), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:158:0077:0123:en:PDF.20Protocol No. 4 of the European Convention on Human Rights, art. 2(1), Sep. 16, 1963, (1963), available at

http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/Convention_ENG.pdf.21Protocol No. 4 of the European Convention on Human Rights, art. 2(2), Sep. 16, 1963, (1963), available at

http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/Convention_ENG.pdf.22Protocol No. 4 of the European Convention on Human Rights, art. 2(3), Sep. 16, 1963, (1963), available at

http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/Convention_ENG.pdf.23

Directive 2004/38/EC of the European Parliament and of the Councilart. 7(1)(a) (2004), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:158:0077:0123:en:PDF.24Directive 2004/38/EC of the European Parliament and of the Councilart. 8(1)-(2) (2004), available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:158:0077:0123:en:PDF.25Directive 2004/38/EC of the European Parliament and of the Councilart. 8(1)-(2) (2004), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:158:0077:0123:en:PDF.26Directive 2004/38/EC of the European Parliament and of the Councilart. 7(1)(b) (2004), available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:158:0077:0123:en:PDF.27Directive 2004/38/EC of the European Parliament and of the Councilart. 7(3) (2004), available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:158:0077:0123:en:PDF.


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Permanent Residence

EU citizens can attain the right of permanent residence in a host member

state when they have legally resided in the host state for a continuous period of five

years.28

The five-year requirement may be interrupted for a period of no longer

than six months a year.29

This right applies equally to non-EU family members.30

The right of permanent residency will only be lost following an absence from the

host state for more than two consecutive years.31

The Right to Vote

EU states must respect electoral rights contained in the ECHR and the

TFEU. The First Additional Protocol of the ECHR provides that [p]arties

undertake to hold free elections at reasonable intervals by secret ballot, under

conditions which will ensure the free expression of the opinion of the people in the

choice of the legislature."32

The TFEU gives EU citizens the right to vote and stand as candidates in

elections to the European Parliament and municipal elections in their EU member

state of residence.33

A temporary citizen in a member state may have the

opportunity to vote or stand in as a candidate in European Parliament and

municipal elections as long as the temporary citizen is an EU citizen and satisfies

the same conditions that a member state imposes on its own nationals regarding the

right to vote and stand as a candidate.34

28Directive 2004/38/EC of the European Parliament and of the Councilart. 16 (2004), available at http://eur-




Directive 2004/38/EC of the European Parliament and of the Councilart. 16 (2004), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:158:0077:0123:en:PDF.32Protocol of the European Convention on Human Rights, art. 3, Mar. 20, 1952, (1952), available at

http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/Convention_ENG.pdf.33Treaty on the Functioning of the European Unionart. 20(2)(b) (1958), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:115:0047:0199:EN:PDF.34Council Directive 93/109/ECart 3 (1993), available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1993:329:0034:0038:EN:PDF; Council Directive 94/80/ECart.

3(b) (1994), available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1994:368:0038:0047:EN:PDF.


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EU Directives 94/80/EC and 93/109/EC provide more details on the right to

vote and stand in European Parliament and municipal elections.35

These Directives

require a member state to ensure that an eligible foreign member state citizen can

vote for European Parliamentary and municipal elections at his/her discretion,

unless voting is compulsory and the citizen is obliged to vote.36

A person who is

an EU citizen and not a national of the member state where he/she resides may

vote and stand as a candidate in European Parliament elections in the member state

where he/she resides, provided he/she meets minimum time-period resident

requirements.37

He/she may vote in European Parliament elections either in the

member state where he/she resides, or his/her home member state.38

He/she may

not vote more than once in the same European Parliament election.39

A person who is an EU citizen and not a national of the member state where

he/she resides has the right to vote and stand in municipal elections in the member

state of residence.40 Also, there are exceptions for the right to vote inmunicipalities where there are a certain percentage of residents in a member state

who are not citizens of that member state.41

If the number of residents in a

member state who are not citizens of that member state exceeds 20 percent of the

total population of EU citizens in that member state, then the member state can

impose residency requirements on the right to vote which cannot exceed five years

and the right to stand in elections which cannot exceed 10 years.42

For instance, in

a Spanish province, if the population of non-Spanish EU residents exceeds 20

percent of the total EU citizen population in that province, Spain can implement

residency restrictions on voting and standing in elections.

35Council Directive 93/109/EC(1993), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1993:329:0034:0038:EN:PDF; Council Directive 94/80/EC

(1994), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1994:368:0038:0047:EN:PDF.36Council Directive 93/109/ECart. 8 (1993), available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1993:329:0034:0038:EN:PDF; Council Directive 94/80/ECart.

7 (1994), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1994:368:0038:0047:EN:PDF.37Council Directive 93/109/ECart. 3 (1993), available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1993:329:0034:0038:EN:PDF.38

Council Directive 93/109/ECart. 4(1) (1993), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1993:329:0034:0038:EN:PDF.39Council Directive 93/109/ECart. 4(1) (1993), available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1993:329:0034:0038:EN:PDF.40Council Directive 94/80/ECart. 3 (1994), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1994:368:0038:0047:EN:PDF.41Council Directive 94/80/ECart. 12(1) (1994), available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1994:368:0038:0047:EN:PDF.42Council Directive 94/80/ECart. 12(1) (1994), available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1994:368:0038:0047:EN:PDF.


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The Right to Social Services and Benefits

Social services benefits and the conditions under which they are granted are

a matter of national choice. The Regulation on the Coordination of Social Security

Systems creates a framework for coordination between member states to ensure

equal treatment for persons using social security.43

Coordination of social security

legislation guarantees that a person moving within the EU will retain the social

security rights he has previously acquired.44

The Regulation on the Coordination of Social Security Systems applies to

member state nationals, stateless persons, and refugees residing in a member state

who are subject to the legislation of a member state, as well as their families or

their survivors.45

Persons subject to this Regulation enjoy the same treatment and

benefits as the citizens of the host state, unless otherwise mentioned in the

Regulation.46 This Regulation creates a framework for member state legislation inall traditional social security areas: sickness, maternity, accidents at work,

occupational diseases, invalidity benefits, unemployment benefits, family benefits,

retirement and pre-retirement benefits, and death grants.47

For instance, the

Regulation creates a framework for unemployment benefits, requiring member

states legislation to use the amount of a citizens previous salary or professional

income when calculating unemployment benefits.48

In the field of social assistance, various ECJ cases confirm that lawful

migrant residents overall must receive treatment equal to that of permanent

residents of the host state. In the case ofMartinez Sala, the ECJ decided that it

was unlawful for German authorities to ask a Spanish national for her residency

documents in order to be granted child benefits when a German citizen would not

be asked for similar proof.49

In the case ofBidar, the UK required a three-year

43Regulation No. 883/2004preamble(5) (2004), available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:166:0001:0123:en:PDF.44Regulation No. 883/2004preamble(13) (2004), available at http://eur-


Regulation No. 883/2004art. 2(1) (2004), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:166:0001:0123:en:PDF.46Regulation No. 883/2004art. 4 (2004), available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:166:0001:0123:en:PDF.47Regulation No. 883/2004art. 3 (2004), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:166:0001:0123:en:PDF.48Regulation No. 883/2004art. 62(1) (2004), available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:166:0001:0123:en:PDF.49Martinez Sala vFreistaat Bayern , Case No. C-85/96, Judgment, (May 12, 1998), available athttp://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61996CJ0085:EN:PDF.


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residence period in order to be granted a student loan or grant.50

Bidar was a

French national who met the three-year residence requirement and was legally

residing in the UK to finish his studies.51

Bidar brought this action to the ECJ after

the UK refused to grant a type of student subsidy because Bider was not settled

in the UK, according to the law regarding state-granted maintenance costs.52

The

ECJ decided that the UK requirement in itself was not inconsistent with EU law.53

The ECJ further determined that member states may establish integration

requirements for students in order to ensure that the students do not become an

unreasonable burden on the member state.54

Because Bidar was a lawful resident

under the UK requirements, he could receive the loan to subsidize his education,

and denying him the loan would violate Article 18 of the TFEU, which prohibits

discrimination on the grounds of nationality.55

The right to free movement is closely connected to the notion of non-

discrimination based on nationality. State laws that cannot be objectively justifiedcannot prevent an EU citizen from using his inherent right to move and reside

freely within the EU. Non-discrimination requirements must be applied equally to

both domestic and foreign residents. The TFEU guarantees EU citizens the right to

vote in the member state where they reside. In granting social services and

benefits, certain requirements are allowed in particular situations. The principle of

proportionality is essential in assessing the justification of integration-type

requirements.

50Bidar v. London Borough of Ealing and Secretary of State for Education and Skills, Case C-209/03, Judgment(Mar. 15, 2004), available athttp://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62003J0209:EN:HTML.51Bidar v. London Borough of Ealing and Secretary of State for Education and Skills, Case C-209/03, Judgment

(Mar. 15, 2004), available athttp://eur-





lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62003J0209:EN:HTML.54Bidar v. London Borough of Ealing and Secretary of State for Education and Skills, Case C-209/03, Judgment(Mar. 15, 2004), available athttp://eur-



lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62003J0209:EN:HTML.


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Residency Rights and Standards in Germany

The German Constitution, known as the Basic Law for the Federal Republic

of Germany, protects German citizens rights to residence,56

to freedom of

movement,57

and the right to vote in elections.58

Statutes provide German citizens

with the right to receive social services and benefits.59

If a citizens rights are

violated, then he/she is allowed to bring his/her case to the Ordinary Courts in

Germany.60

Since Germany is a member of the EU, non-German EU citizens

residing in Germany (EU residents) are also protected under the German

constitution and legislation.61

The German Constitution and legislation provide for

the right of residence and freedom of movement, the right to vote, and the right to

social services and benefits to German citizens and EU residents.


The German Constitution gives German citizens and EU residents the right

to move freely throughout the state.62

This right can only be restricted pursuant to

a law, or for reasons of public safety, crime prevention, or accident or natural

disaster assistance.63

The freedom of movement provided in the Constitution

allows German citizens and EU residents to decide where they want to live in

Germany. Under bilateral agreements, residents in Germany from the EEA and

Switzerland have the same movement and residency rights as German citizens and

EU residents in Germany.64

All residents must register with the local police within seven days of arrival

in a new residence in Germany.65

To complete the police registration, the

applicant must provide a passport, a lease or rental agreement, and a completed

56FEDERAL REPUBLIC OF GERMANY CONST. art. 16(1) (1949), available athttps://www.btg-

bestellservice.de/pdf/80201000.pdf.57FEDERAL REPUBLIC OF GERMANY CONST. art. 11 (1949).58FEDERAL REPUBLIC OF GERMANY CONST. arts. 20, 28 (1949).59

Deutsche Sozialversicherug,Introduction(Feb. 28, 2013), available at http://www.deutsche-

sozialversicherung.de/en/guide/introduction.html.60

FEDERAL REPUBLIC OF GERMANY CONST. art. 19(4) (1949).61Treaty on the European Unionart. 3(2) (1993), available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0013:0046:en:PDF.62FEDERAL REPUBLIC OF GERMANY CONST. art. 11(1) (1949).63FEDERAL REPUBLIC OF GERMANY CONST. art. 11(2) (1949).64Saxony.de, German Residency Law(Apr. 16, 2013), available athttp://sachsen.de/en/1454.htm.65Expatica,How to Get a Residence Permit in Germany (Mar. 25, 2013), available at

http://www.expatica.com/de/essentials_moving_to/essentials/how-to-get-a-residence-permit-in-germany-

26889.html#1.


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registration form.66

All residents register at a special municipal office to receive a

registration certificate.67

The registration certificate officially proves a persons

residence in Germany.68

Registration certificates are required for every change of

address.69

In addition to a registration certificate, non-EU/EEA/Swiss residents in

Germany are required to obtain a residence permit, which can either be valid for a

specific period of time that requires renewal or can be valid for an infinite period

of time with no renewal requirement, depending on the basis for residency.70

For a

non-EU/EEA/Swiss resident in Germany to obtain a residency permit, he/she must

provide a valid identity card or passport, two passport photographs, proof of health

insurance, residence certificate, proof of means of support (letter from employer or

proof of adequate financial resources for students and non-employed), a Certificate

of Health for Residence Permit from a German doctor or local health office, and a

Certificate of Good Conduct which is obtained from the persons home embassy orconsulate.

71

The Right to Vote

Any German citizen over the age of 18 has a right to vote in state elections

and stand for election for office.72

In addition, after living in Germany for three

months, EU residents are eligible to vote and stand in for in local communal and

European Parliamentary elections.73

EEA residents, Swiss residents, and non-

66Expatica,How to Get a Residence Permit in Germany (Mar. 25, 2013), available at

http://www.expatica.com/de/essentials_moving_to/essentials/how-to-get-a-residence-permit-in-germany-26889.html#1.67InterNations,Residency in Germany (Feb. 28, 2013), available athttp://www.internations.org/germany-

expats/guide/15983-visa-administration/how-to-get-a-german-residence-permit-15953/residency-in-germany-2.68InterNations,Residency in Germany (Feb. 28, 2013), available athttp://www.internations.org/germany-

expats/guide/15983-visa-administration/how-to-get-a-german-residence-permit-15953/residency-in-germany-2.69InterNations,Residency in Germany (Feb. 28, 2013), available athttp://www.internations.org/germany-

expats/guide/15983-visa-administration/how-to-get-a-german-residence-permit-15953/residency-in-germany-2.70

InterNations,Residency in Germany (Feb. 28, 2013), available athttp://www.internations.org/germany-expats/guide/15983-visa-administration/how-to-get-a-german-residence-permit-15953/residency-in-germany-2.71Just Landed, Germany Guide: Residency Permits, Types of Permits and Application Procedures (Mar. 24, 2013),

available at http://www.justlanded.com/english/Germany/Germany-Guide/Visas-Permits/Residency-permits.72FEDERAL REPUBLIC OF GERMANY CONST. art. 19(4) (1949); AngloInfo, Voting in Germany(Feb. 28, 2013),available athttp://berlin.angloinfo.com/information/moving/voting/; See alsoFederal Elections Actart. 12

(Germany, 1993), available at

http://www.bundeswahlleiter.de/en/bundestagswahlen/downloads/rechtsgrundlagen/bundeswahlgesetz_engl.pdf.73AngloInfo, Voting in Germany(Apr. 15, 2013), available at

http://berlin.angloinfo.com/information/moving/voting/.


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EU/EEA/Swiss residents are not eligible to vote in elections Germany.74

Alternatively, EEA residents, Swiss residents, and non-EU/EEA/Swiss residents

may be elected by other EEA residents, Swiss residents, and non-EU/EEA/Swiss

residents to a local communitys Foreigners Advisory Board, which addresses

local politics.75

All eligible voters, whether German citizens or EU residents in Germany,

must complete the mandatory police registration procedure for a voting card and

provide proof of identity and residency in Germany in order to vote.76

This is part

of the same registration process that German citizens and EU residents must go

through upon moving to a new residence in Germany. EEA residents, Swiss

residents, and non-EU/EEA/Swiss residents are not eligible for a voting card when

completing the mandatory police registration. German citizens and EU residents

who have completed the police registration and are eligible to vote will

automatically receive a voting card.77 An EU resident may vote for EuropeanParliamentary elections in Germany, instead of voting in his/her member state of

citizenship.78

Electoral areas of Germany are divided into constituencies, and each

constituency is divided into polling districts.79

Each voter in Germany is allowed

two votes: one vote for a member of Parliament to represent the constituency and

one vote for the Land list.80

A Land list contains the list of candidates for office in

the Land (the local province).81

The law also provides that only German citizens

and EU residents who are registered to vote in a polling district or have a polling

card are allowed to vote.82

German citizens and EU residents in Germany can only

74Kees Groenendijk, Voting Rights for Non-Nationals in Europe: What We Know and What We Need to Learn,

TRANSATLANTIC COUNCIL ON MIGRATION,4 (2008), available athttp://www.migrationpolicy.org/transatlantic/docs/Groenendijk-final.pdf.75AngloInfo, Voting in Germany(Apr. 15, 2013), available at

http://berlin.angloinfo.com/information/moving/voting/.76AngloInfo, Voting in Germany(Feb. 28, 2013), available at

http://berlin.angloinfo.com/information/moving/voting/.77AngloInfo, Voting in Germany(Feb. 28, 2013), available at

http://berlin.angloinfo.com/information/moving/voting/.78

AngloInfo, Voting in Germany(Mar. 25, 2013), available athttp://berlin.angloinfo.com/information/moving/voting/.79Federal Elections Actart. 2(2)-(3) (Germany, 1993), available at

http://www.bundeswahlleiter.de/en/bundestagswahlen/downloads/rechtsgrundlagen/bundeswahlgesetz_engl.pdf.80Federal Elections Actart. 5 (Germany, 1993), available at

http://www.bundeswahlleiter.de/en/bundestagswahlen/downloads/rechtsgrundlagen/bundeswahlgesetz_engl.pdf.81Federal Elections Actart. 127 (Germany, 1993), available at

http://www.bundeswahlleiter.de/en/bundestagswahlen/downloads/rechtsgrundlagen/bundeswahlgesetz_engl.pdf.82Federal Elections Actart. 14(1) (Germany, 1993), available at

http://www.bundeswahlleiter.de/en/bundestagswahlen/downloads/rechtsgrundlagen/bundeswahlgesetz_engl.pdf.


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vote in the polling district where they are entered into a voters register.83

The

local commune district is indicated on the voting card that the person received

upon completion of the police registration process. However, a polling card

provides German citizens and EU residents more flexibility in voting location; if

an eligible voter has a polling card, he/she can vote in the constituency where the

polling card was issued, either in person in that particular polling district or by

mail.84


Statutes control the system of social benefits in Germany.85

The central

government formulates the social insurance policies and the implementation of the

programs is decentralized.86

The social welfare system is divided into three types

of entitlement programs.87

The most common type is a contributory social

insurance program that protects people who contribute from unexpected expenses,such as illness, unemployment, or an accident.

88 The contributory social insurance

scheme is divided into four contribution areas: pension insurance; unemployment

insurance; health insurance; and nursing care insurance.89

The second type is a

noncontributory social compensation program that is financed by taxes and gives

assistance to those in the public service sector who suffer from income loss or

disability as a result of their occupation.90

The third type of social welfare program

provides assistance to people who are not eligible for the other two programs or

who need additional assistance.91

All persons employed in Germany must

83Federal Elections Actart. 14(2) (Germany, 1993), available at

http://www.bundeswahlleiter.de/en/bundestagswahlen/downloads/rechtsgrundlagen/bundeswahlgesetz_engl.pdf.84Federal Elections Actart. 14(3) (Germany, 1993), available at

http://www.bundeswahlleiter.de/en/bundestagswahlen/downloads/rechtsgrundlagen/bundeswahlgesetz_engl.pdf.85Deutsche Sozialversicherug,Introduction(Feb. 28, 2013), available at http://www.deutsche-

sozialversicherung.de/en/guide/introduction.html.86MongaBay, Germany-Provisions of the Social Welfare System(Mar. 6, 2013), available at

http://www.mongabay.com/history/germany/germany-provisions_of_the_social_welfare_system.html.87

MongaBay, Germany-Provisions of the Social Welfare System(Mar. 6, 2013), available at

http://www.mongabay.com/history/germany/germany-provisions_of_the_social_welfare_system.html.88

MongaBay, Germany-Provisions of the Social Welfare System(Mar. 6, 2013), available at

http://www.mongabay.com/history/germany/germany-provisions_of_the_social_welfare_system.html.89Expatica, Guide to German Social Security(Mar. 5, 2012), available at

http://www.expatica.com/de/finance_business/pensions_insurance/guide-to-german-social-security--3747_9948.html.90MongaBay, Germany-Provisions of the Social Welfare System(Mar. 6, 2013), available at

http://www.mongabay.com/history/germany/germany-provisions_of_the_social_welfare_system.html.91MongaBay, Germany-Provisions of the Social Welfare System(Mar. 6, 2013), available at

http://www.mongabay.com/history/germany/germany-provisions_of_the_social_welfare_system.html.


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contribute to the social insurance programs, and they are eligible for social security

and unemployment benefits.92

The German Constitution and various statutes provide German citizens and

EU residents in Germany the right to free movement, the right to vote if they meet

residency requirements, and access to social insurance programs. EU residents are

allowed to vote in Germany as long as they fulfill the residency registration

requirements. EEA residents, Swiss residents, and non-EU/EEA/Swiss residents

are not eligible to vote in Germany. All persons working in Germany and

contributing to social insurance programs will receive benefits from the social

insurance programs.

Residency Rights and Standards in Spain

Under the Spanish Constitution, the Spanish state is decentralized and grantssignificant autonomy to regional governments known as Autonomous

Communities (ACs).93

ACs are comprised of groups of provinces that share

common cultural, historical, and economic characteristics.94

AC Statutes are the

equivalent to a constitution, but they are subordinate to the Constitution of Spain.95

ACs assume all provincial powers and responsibilities.96 Because Spain is a

member of the EU, non-Spanish EU citizens residing in Spain (EU residents) are

also protected under the Spanish Constitution and legislation.97

The Spanish

Constitution and legislation provide for the right of residence and freedom of

movement, the right to vote, and the right to social services and benefits to Spanish

citizens and EU residents.The Right of Residence and Freedom of Movement

The Constitution provides that Spanish citizens and EU residents have the

right to freely choose where they want to live and the right to freely move within

92Expatica, Guide to German Social Security(Mar. 5, 2012), available at

http://www.expatica.com/de/finance_business/pensions_insurance/guide-to-german-social-security--

3747_9948.html.93

SPAIN CONST. art. 143 (1978), available athttp://www.congreso.es/portal/page/portal/Congreso/Congreso/Hist_Normas/Norm/const_espa_texto_ingles_0.pdf.94SPAIN CONST. art. 19 (1978).95Danial Gonzalez Herrera, Spains Government Tiers Reflect the Historic Struggle Between Regionalists and

Centralists, CITY MAYORS (Dec. 27, 2006), available athttp://www.citymayors.com/government/spain_government.html.96MongaBay, Spain-Government(Mar. 6, 2013), available at

http://www.mongabay.com/reference/country_studies/spain/GOVERNMENT.html.97Treaty on the European Unionart. 3(2) (1993), available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0013:0046:en:PDF.


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the states territory.98

Under bilateral agreements, EEA and Swiss residents in

Spain have the same residency and movement rights as Spanish citizens and EU

residents.99

All people residing in Spain for more than three months must obtain a

residence certificate.100

To become a legal resident in Spain, a person needs an

identification number known as aNmero de Identidad de Extranjero(NIE) and a

Tarjeta de Residencia.101

To receive this, one must provide a current passport, a

photocopy of three recent passport photographs with the applicants name written

on the back, and a completed application form with three additional copies.102

The

registration office may require a medical certificate depending on state of origin

and recent residency.103

Anyone who will reside in Spain for more than six months per year must

register at the local town hall with the municipal census record.104

The registration

serves as an official tally of people living in an area, and a person who registers

with a municipal register (Padrn Municipal) is considered an official resident ofthe municipality.

105 To register with the Padrn Municipal, all residents must

submit a completed application form, identification, such as a passport, and proof

of address, such as a utility bill or rental agreement.106

The registration certificate

lists the residents name, home address, nationality, date of registration, and

NIE.107

For each resident registered, a municipality will receive funding for

services such as police, cleaning and maintenance, and health centers.108

98SPAIN CONST. art. 19 (1978).

99Blevins Franks, Spains Residence Rules (Apr. 16, 2013), available at

http://www.blevinsfranks.com/EN/news/104/949?newsCategoryPK=0.100AngloInfo,Introduction to Residency in Spain (Apr. 16, 2013), available at

http://spain.angloinfo.com/moving/residency/.101Just Landed, Spain Guide: Residency and NIE, How to Become an Official Resident in Spain (Mar. 24, 2013),

available athttp://www.justlanded.com/english/Spain/Spain-Guide/Visas-Permits/Residency-and-NIE.102Just Landed, Spain Guide: Residency and NIE, How to Become an Official Resident in Spain (Mar. 24, 2013),

available athttp://www.justlanded.com/english/Spain/Spain-Guide/Visas-Permits/Residency-and-NIE.103Just Landed, Spain Guide: Residency and NIE, How to Become an Official Resident in Spain (Mar. 24, 2013),

available athttp://www.justlanded.com/english/Spain/Spain-Guide/Visas-Permits/Residency-and-NIE.104

AngloInfo, Certificado de Empadronamiento (Feb. 28, 2013), available at

http://spain.angloinfo.com/moving/certificado-de-empadronamiento/.105

AngloInfo, Certificado de Empadronamiento (Feb. 28, 2013), available at

http://spain.angloinfo.com/moving/certificado-de-empadronamiento/.106AngloInfo,Register the Padrn Municipal de Habitantes(Mar. 25, 2013), available at

http://spain.angloinfo.com/moving/certificado-de-empadronamiento/how-to-register/.107SpainExpat,EU Residency in Spain for EU Citizens, Their Spouses and Family Members(Feb. 21, 2013),

available at

http://www.spainexpat.com/spain/information/eu_residency_in_spain_for_eu_citizens_and_their_family_members/.108AngloInfo, Certificado de Empadronamiento(Feb. 28, 2013), available at

http://spain.angloinfo.com/moving/certificado-de-empadronamiento/.


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Any change in residency status, such as a birth, marriage, or a move must be

reported to the Padrn Municipal.109

Moving within the same community is

updated by notifying the local Padrn Municipal.110

However, when moving to a

different municipality, a person must repeat the registration process with the new

communitys Padrn Municipal, and the new Padrn Municipal will notify the old

Padrn Municipal of the move.111

The Right to Vote

The Spanish Constitution provides Spanish citizens and EU residents with

the right to participate in public affairs, including running for public office or

voting.112

EU residents in Spain may vote in the European Elections and in

Spanish local elections.113

An EEA, Swiss, and non-EU/EEA/Swiss resident may

vote in Spain if his/her home state has signed a reciprocity agreement with

Spain.114 Norway is the only state that has signed a reciprocity agreement withSpain.

115 Only those Spanish citizens, EU residents, and Norwegian residents who

have registered with the census at the local town hall census record may vote.116

Once on the town hall register, the applicant will be sent a Tarjeta Cencal(census

card), which has the registration details and indicates where the Spanish citizen,

EU resident, or Norwegian resident votes.117

Once on the town hall register, the

Spanish citizen, EU resident, or Norwegian resident must visit the town hall to

verify he/she is on the register and declare that he/she wants to be included on the

electoral roll.118

Voters of each AC elect their political leaders through universal

suffrage in a parliamentary system.119

Both Spanish citizens and EU residents are

109AngloInfo,Register the Padrn Municipal de Habitantes(Mar. 25, 2013), available at

http://spain.angloinfo.com/moving/certificado-de-empadronamiento/how-to-register/.110AngloInfo,Register the Padrn Municipal de Habitantes(Mar. 25, 2013), available athttp://spain.angloinfo.com/moving/certificado-de-empadronamiento/how-to-register/.111AngloInfo,Register the Padrn Municipal de Habitantes(Mar. 25, 2013), available at

http://spain.angloinfo.com/moving/certificado-de-empadronamiento/how-to-register/.112SPAIN CONST. art. 23(1) (1978).113AngloInfo, Voting in Spanish Elections(Mar. 25, 2013), available athttp://spain.angloinfo.com/moving/voting/.114SpainExpat, Voting in Spain(Jan 13, 2013), available at

http://www.spainexpat.com/spain/information/voting_in_spain_voting_from_spain/.115

Kees Groenendijk, Voting Rights for Non-Nationals in Europe: What We Know and What We Need to Learn,TRANSATLANTIC COUNCIL ON MIGRATION,5 (2008), available at

http://www.migrationpolicy.org/transatlantic/docs/Groenendijk-final.pdf.116SpainExpat, Voting in Spain(Jan 13, 2013), available at

http://www.spainexpat.com/spain/information/voting_in_spain_voting_from_spain/.117AngloInfo, Voting in Spanish Elections(Mar. 25, 2013), available athttp://spain.angloinfo.com/moving/voting/.118AngloInfo, Voting in Spanish Elections(Mar. 25, 2013), available athttp://spain.angloinfo.com/moving/voting/.119Danial Gonzalez Herrera, Spains Government Tiers Reflect the Historic Struggle Between Regionalists and

Centralists, CITY MAYORS (Dec. 27, 2006), available at

http://www.citymayors.com/government/spain_government.html.


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eligible to vote in European Parliamentary elections.120

If an EU resident votes in

Spains European Parliamentary elections, he/she may not vote in the European

Parliamentary elections in his/her home member state.121


The Constitution provides that the Spanish government will maintain a

social security system for its citizens in order to guarantee assistance and benefits

during times of hardship.122

The central government maintains competence over

the legislation and financial system of social security.123

All workers legally

residing in Spain must enroll in the General Social Security Fund.124

Any legal

resident of Spain can benefit from the social security system if he/she is employed,

self-employed, a student, a worker affiliated with a co-operative, a civil servant, or

military personnel.125

The Spanish Constitution and various statutes provide Spanish citizens and

EU residents in Spain the right to free movement, the right to vote, and access to

social insurance programs. Bilateral agreements provide EEA and Swiss residents

in Spain the same freedom of movement and residency rights as Spanish citizens

and EU residents. EU residents are allowed to vote in European Elections and

Spanish local elections as long as they register with the local census. Norwegian

residents in Spain are the only non-EU residents eligible to vote in Spain. All legal

residents working in Spain are entitled to receive social services and benefits.

Residency Rights and Standards in Belgium

The federal state of Belgium has three Communities: the French

Community, the Flemish Community, and the German Community.126

The state

also has three Regions: Flanders, Wallonia, and Brussels;127

and four linguistic

120SpainExpat, Voting in Spain(Jan 13, 2013), available at

http://www.spainexpat.com/spain/information/voting_in_spain_voting_from_spain/.121

Council Directive 93/109/ECart. 4(1) (1993), available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1993:329:0034:0038:EN:PDF.122

SPAIN CONST. art. 41 (1978).123SPAIN CONST. art. 149(17) (1978).124AngloInfo, Social Security and Health Insurance in Spain(Apr. 15, 2013), available at

http://spain.angloinfo.com/healthcare/health-system/health-insurance/.125AngloInfo, Social Security and Health Insurance in Spain(Feb. 28, 2013), available at

http://spain.angloinfo.com/healthcare/health-system/health-insurance/.126BELGIAN CONST. art. 1-2 (1994), available at

http://www.dekamer.be/kvvcr/pdf_sections/publications/constitution/grondwetEN.pdf.127BELGIAN CONST. art. 3 (1994).


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regions.128

The Federal State has powers over areas such as social security and

public health.129

The Communities have competency over cultural issues, such as

theatre, libraries, and education.130

The Regions have powers relating to the

economy, employment, agriculture, housing, and public works.131

Because

Belgium is a member of the EU, non-Belgian EU citizens residing in Belgium (EU

residents) are also protected under the Belgian Constitution and legislation.132

The

Belgian Constitution and legislation provide for the right of residence and freedom

of movement, the right to vote, and the right to social services and benefits to

Belgian citizens and EU residents.


Freedom of movement applies in Belgium through the fundamental rights of

the EU.133

Through bilateral agreements, this right applies to EEA and Swiss

residents in Belgium. EU, EEA, and Swiss residents do not need to register for aresidency permit.

134 However, non-EU/EEA/Swiss residents who intend to stay in

Belgium for over three months and Belgians who have been living abroad and

return to Belgium must report to the municipality where they intend to reside

within eight days of arrival.135

To register at the local town hall, non-EU/EEA/Swiss residents must present

a valid passport or identity card, three passport photographs, proof of means of

support, such as a letter from an employer, proof of accommodation, such as a

rental agreement, a small registration fee, and sometimes a birth certificate or

marriage certificate.136

Registering with the municipality requires that new

128BELGIAN CONST. art. 4 (1994).129Belgian Federal Government, The Federal Governments Powers(Mar. 6, 2013), available at

http://www.belgium.be/en/about_belgium/government/federal_authorities/competence_federal_government/.130Belgian Federal Government, The Powers of the Communities(Mar. 6, 2013), available at

http://www.belgium.be/en/about_belgium/government/communities/competence/.131Belgian Federal Government, The Powers of the Communities(Mar. 6, 2013), available at

http://www.belgium.be/en/about_belgium/government/communities/competence/.132

Treaty on the European Unionart. 3(2) (1993), available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0013:0046:en:PDF.133

European Commission,Free Movement: Belgium(Mar. 6, 2013), available at

http://ec.europa.eu/eures/main.jsp?acro=free&lang=en&countryId=BE&fromCountryId=RO&accessing=0&content

=1&restrictions=1&step=2.134Expatica,Belgian Residence Permits (Sep. 17, 2012), available athttp://www.expatica.com/be/essentials_moving_to/essentials/belgian-residence-permits-16484_8284.html.135Belgian Federal Government,Moving to Belgium(Mar. 8, 2013), available at

http://www.belgium.be/en/housing/moving_to_belgium/.136Expatica,Belgian Residence Permits (Sep. 17, 2012), available at

http://www.expatica.com/be/essentials_moving_to/essentials/belgian-residence-permits-16484_8284.html.


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residents actually have an address where they plan to reside.137

If a person intends

to be a permanent resident, he/she must apply for a foreigner identity card, which

is renewed every year, and be registered on the official foreign population

register.138

All residents must register for an identity card, which requires two to three

passport photos, a medical certificate, and a work permit or visa for non-

EU/EEA/Swiss residents.139

Municipalities are responsible for keeping updated

information on all residents within their borders, and for updating the National

Register, which is the centralized system that tracks all residents in Belgium.140

The Right to Vote

The right to vote extends not only to Belgian citizens but also to EU

residents in Belgium according to international and supranational obligations.141EEA residents, Swiss residents, and non-EU/EEA/Swiss residents in Belgium may

have the right to vote under certain conditions and terms specified in laws.142

For

instance, EEA residents, Swiss residents, and non-EU/EEA/Swiss residents are

allowed to vote in state and local elections if they have resided in Belgium for at

least five years and signed both an oath of allegiance to the Belgian Constitution

and the ECHR.143

Belgian citizens are automatically registered in the electoral polls, and EU

residents and eligible EEA, Swiss, and non-EU/EEA/Swiss residents must register

at the local town hall in order to be registered on the electoral polls.144

This

registration can be done during the initial residence registration at the town hall

with the municipality authority.145

For municipal and provincial elections, voters

137Belgian Federal Goverment,Moving to Belgium(Mar. 8, 2013), available at

http://www.belgium.be/en/housing/moving_to_belgium/.138Just Landed,Belgium Guide: Residence Permits & Identity Cards (Mar. 24, 2013), available at

http://www.justlanded.com/english/Belgium/Belgium-Guide/Visas-Permits/Residence-permits-Identity-cards.139Just Landed,Belgium Guide: Residence Permits & Identity Cards (Mar. 24, 2013), available at

http://www.justlanded.com/english/Belgium/Belgium-Guide/Visas-Permits/Residence-permits-Identity-cards.140

European Union Framework Programme for Research, Country Report: Belgium, 2-3 (Mar. 2, 2005), available atwww.uclouvain.be/cps/ucl/doc/sped/documents/THESIM_Belgium_Countryreport.pdf.141BELGIUM CONST.art. 8 (2012).142BELGIUM CONST.art. 8 (2012).143AngloInfo, Voting in Belgium(Apr. 15, 2013), available at

http://brussels.angloinfo.com/information/moving/voting/.144Immigrant Voting Project,Immigrant Voting Rights in Belgium (Apr. 15, 2013), available at

http://www.immigrantvoting.org/World/Belgium.html.145AngloInfo, Voting in Belgium(Mar. 25, 2013), available at

http://brussels.angloinfo.com/information/moving/voting/.


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can only vote for candidates in their region.146

All persons voting in Belgium

receive voting cards from the municipalities with which they are registered, and

these voting cards contain information on when and where to vote.147

Belgium has

a compulsory voting system.148

Under this system, people who are 18 and over

and do not vote in at least four elections may face fines, lose the right to vote for

10 years, or face difficulties getting a public sector job.149

All EU residents in Belgium can vote in European Parliamentary

elections.150

If an EU resident votes in the European Parliamentary Elections in

Belgium, he/she must vote for a Belgian Representative, and he/she cannot vote in

another member state once his/her ballot is cast.151


The Belgian Constitution provides that laws will guarantee Belgian citizensand EU residents the right to social security; health care; and to social, medical,

and legal aid.152

Benefits for EEA, Swiss, and non-EU/EEA/Swiss residents

depend on agreements between Belgium and that persons home state, European

legislation, the persons situation, and employment status.153

Belgium has a

reciprocal social security system, which means that if an EEA, Swiss, or non-

EU/EEA/Swiss residents home state has an agreement with Belgium, he/she can

claim many of the same social security benefits as a Belgian citizen, depending on

the agreement.154

If an EEA resident is legally living and working in Belgium,

social security legislation will apply to him/her.155

European legislation gives EEA

146AngloInfo, Voting in Belgium(Mar. 6, 2013), available at

http://brussels.angloinfo.com/information/moving/voting/.147AngloInfo, Voting in Belgium(Mar. 6, 2013), available at

http://brussels.angloinfo.com/information/moving/voting/.148Elliot Frankal, Compulsory Voting Around the World, THE GUARDIAN,Jul. 4, 2005, available at

http://www.guardian.co.uk/politics/2005/jul/04/voterapathy.uk.149Elliot Frankal, Compulsory Voting Around the World, THE GUARDIAN,Jul. 4, 2005, available at

http://www.guardian.co.uk/politics/2005/jul/04/voterapathy.uk.150AngloInfo, Voting in Belgium(Mar. 6, 2013), available at

http://brussels.angloinfo.com/information/moving/voting/.151

AngloInfo, Voting in Belgium(Mar. 6, 2013), available at

http://brussels.angloinfo.com/information/moving/voting/.152

BELGIUM CONST.art. 23 (2012).153Belgian Federal Government, Social Security in Belgium(Mar. 6, 2013), available at

http://www.belgium.be/en/family/social_security_in_belgium/.154AngloInfo,Entitlement & Registration (Apr. 16, 2013), available athttp://brussels.angloinfo.com/information/money/social-security/entitlement-registration/.155Coming2Belgium,European Union-EEA (EU + Lichtenstein, Iceland, and Norway) Switzerland: Social

Security General Information(Apr. 16, 2013), available at

https://www.socialsecurity.be/CMS/en/coming_to_belgium/content/coming_to_belgium/themas/spfssfodsz/FODSZ

_Convention_EEE_Suisse.xml.


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residents the same social security rights as citizens of Belgium. Working time in

both the home EEA state and Belgium will be taken into account when calculating

benefits, and the EEA resident may be eligible to receive benefits from the EEA

residents home state.156

EEA residents are allowed access to benefits such as

family allowances, health care, sickness benefits, benefits for accidents at work,

unemployment benefits, and retirement pensions.157

The federal state plays an important role in regulating and supervising social

services and benefits.158

The local authorities have the primary responsibility of

providing services through public welfare centers.159

Public welfare centers were

created to ensure that every person is entitled to social security.160

The public

welfare centers intervene in housing issues, debt mediation, aid to the homeless,

elderly people, and people with a handicap.161

All employees in Belgium contribute a portion of their work income tofinance the social security system.

162 The funds are used for sickness allowances,

unemployment, aid in the event of accidents at work, and pensions.163

There is

also a supplementary support system that is not funded by contributions but is

financed with government resources to provide income support, income for the

elderly, family allowances, and support for people with a handicap.164

The Belgian Constitution and various statutes provide Belgian citizens and

EU residents in Belgium the right to free movement, the right to vote, and access to

156Coming2Belgium,European Union-EEA (EU + Lichtenstein, Iceland, and Norway) Switzerland: Social

Security General Information(Apr. 16, 2013), available at


_Convention_EEE_Suisse.xml.157Coming2Belgium,European Union-EEA (EU + Lichtenstein, Iceland, and Norway) Switzerland: SocialSecurity General Information(Apr. 16, 2013), available at


_Convention_EEE_Suisse.xml.158Eurofound, Social Public Services: Belgium, (Dec. 17, 2007), available at

http://www.eurofound.europa.eu/areas/socialprotection/casestudies/belgium.htm.159Eurofound, Social Public Services: Belgium(Dec. 17, 2007), available at

http://www.eurofound.europa.eu/areas/socialprotection/casestudies/belgium.htm.160

City of Brussels,Public Welfare Centre (CPAS-OCMW) of Brussels(Mar. 6 2013), available athttp://www.brussels.be/artdet.cfm/4780.161City of Brussels,Public Welfare Centre (CPAS-OCMW) of Brussels, (Mar. 6 2013), available at

http://www.brussels.be/artdet.cfm/4780.162Belgian Federal Government, Social Security in Belgium(Mar. 6, 2013), available at

http://www.belgium.be/en/family/social_security_in_belgium/.163Belgian Federal Government, Social Security in Belgium(Mar. 6, 2013), available at

http://www.belgium.be/en/family/social_security_in_belgium/.164Belgian Federal Government, Social Security in Belgium(Mar. 6, 2013), available at

http://www.belgium.be/en/family/social_security_in_belgium/.


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social insurance programs. EU, EEA, and Swiss residents do not need to register

for a residency permit, but non-EU/EEA/Swiss residents must acquire a residency

permit. EU residents are allowed to vote in European elections and Belgian local

elections as long as they register with the local town hall electoral poll. EEA,

Swiss, and non-EU/EEA/Swiss residents are allowed to vote in state and local

Belgian elections as long as they have resided in Belgium for at least five years and

have signed allegiance to the Belgian Constitution and the ECHR. All legal

residents working in Belgium contribute a portion of their income to social

services and benefits program. EEA, Swiss, and non-EU/EEA/Swiss residents are

subject to the provisions of international agreements and European legislation

regarding access to social benefits.

Residency Rights and Standards in Switzerland

Unlike Germany, Spain, and Belgium, Switzerland is not an EU member.Nevertheless, Switzerland is bound by many of the EUs rules relating to freedom

of movement via bilateral agreements between Switzerland and the EU.

Switzerland is divided into 26 cantons, which are comprised of approximately

3,000 communes.165

All Swiss citizens are first citizens of a commune, and from

this status they automatically receive the citizenship of the canton where that

commune is located, as well as Swiss citizenship.166

The Swiss Constitution

protects its citizens right to free movement, right to vote, and the right to social

services and benefits.


The Swiss Constitution establishes the right to freedom of movement for its

citizens.167

It also provides that Swiss citizens have the right to live anywhere in

the state and have the freedom to enter or leave Switzerland.168

Switzerland has

signed seven bilateral agreements with the EU, including the Agreement on the

Free Movement of Persons.169

This agreement also applies to citizens of member

states of the European Free Trade Association (EFTA, which includes Switzerland

165Frances Kendall, The Swiss Cantonal System: A Model Democracy, INTERNATIONAL SOCIETY FOR INDIVIDUAL

LIBERTY(Mar. 2000), available at http://www.isil.org/resources/lit/swiss-canton-system.html.166SWITZERLAND CONST. art. 37(1) (1999), available at http://www.admin.ch/ch/e/rs/1/101.en.pdf.167SWITZERLAND CONST. art. 10(2) (1999).168SWITZERLAND CONST. art. 24 (1999).169The Swiss Portal,Free Movement of Persons Switzerland-EU/EFTA(Apr. 8, 2013), available at

http://www.bfm.admin.ch/content/bfm/en/home/themen/fza_schweiz-eu-efta.html.


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and the EEA states).170

The Agreement on the Free Movement of Persons

guarantees a right of entry, residence, access to work, establishment on self-

employed basis, and the right to stay in the territory of a state that signed the

agreement.171

Non-EU/EFTA residents in Switzerland face residency restrictions

and do not have an automatic right to live or work in Switzerland.172

A non-

EU/EFTA resident must apply to the Cantonal Migration Office before moving to

Switzerland, and the applications approval is based on the individuals

circumstances.173

There are five types of residency permits for EU and EFTA residents in

Switzerland: short term residence permit, resident foreign nationals permit, settled

foreign nationals, resident foreign nationals with gainful employment, and cross-

border commuter permit.174

There are eight types of residence permits for non-

EU/EFTA residents in Switzerland: residence permit, settlement permit, residence

permit with gainful employment, cross-border commuter permit, short-termresidence permit, provisionally admitted foreigners, permit for asylum-seekers, and

people in need of protection.175

Each of these types of residence permits are

subject to different requirements depending on the duration or the nature of work

of the EU/EFTA resident and non-EU/EFTA resident.

When any personmoves within Switzerland, he/she must inform his/her

current commune of residence of the pending departure and register in the

commune where he/she will live.176

He/she must register with the new commune

of residence within 14 days of his/her arrival.177

Residence registration requires

valid identity documents, a formal employment contract (if the resident already has

one), a health insurance certificate, a passport photograph, and civil status

170The Swiss Portal,Free Movement of Persons Switzerland-EU/EFTA(Apr. 8, 2013), available at

http://www.bfm.admin.ch/content/bfm/en/home/themen/fza_schweiz-eu-efta.html.171Agreement Between the European Community and its Member States and the Swiss Confederation on the Free

Movement of Personsart. 1(a) (European Union and Swiss Confederation, 2002), available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2002:114:0006:0006:EN:PDF.172AngloInfo, Staying in Switzerland(Apr. 16, 2013), available at

http://geneva.angloinfo.com/information/moving/residency/requirements/.173

AngloInfo, Staying in Switzerland(Apr. 16, 2013), available athttp://geneva.angloinfo.com/information/moving/residency/requirements/.174Swiss Federal Department of Justice and Police,EU/EFTA Nationals(Oct. 1, 2011), available at

http://www.bfm.admin.ch/content/bfm/en/home/themen/aufenthalt/eu_efta.html.175Swiss Federal Department of Justice and Police,Non-EU/EFTA Nationals(Jan. 26, 2011), available athttp://www.bfm.admin.ch/content/bfm/en/home/themen/aufenthalt/nicht_eu_efta.html.176The Swiss Portal,Notification of Departure and Registration(Apr. 17, 2013), available at

https://www.ch.ch/en/notification-departure-registration/.177The Swiss Portal,Notification of Departure and Registration(Apr. 17, 2013), available at

https://www.ch.ch/en/notification-departure-registration/.


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documents.178

The commune will pass along the information to the canton to

process and send the residence permit to the applicant.179

When a Swiss citizen moves within Switzerland, he/she must take his/her

certificate of origin and register it with the new commune of residence.180

A

certificate of origin is a certificate from the commune where the family (usually the

father) of a citizen originates; a place of origin will not always be the same as the

place of birth.181

There is no central register of Swiss citizens, and in order to

determine whether a person is a Swiss citizen, it is necessary to know the place of

origin.182

The Right to Vote

The Swiss Constitution gives all Swiss citizens over the age of 18 political

rights in federal matters, such as participating in elections to the National Council,and the ability to request referendums on federal matters.

183 Once a Swiss citizen

is eligible to vote, he/she is automatically registered on his/her commune of

residences electoral roll.184

Swiss citizens who lack the legal capacity due to

mental illness or mental incapacity are ineligible to utilize these political rights.185

The right to vote is implemented through the Swiss Federal Act on Political

Rights.186

EU/EFTA residents and non-EU/EFTA residents living in Switzerland are

not allowed to participate in federal elections.187

In some cantons, EU/EFTA and

non-EU/EFTA residents do not have the right to vote in communal elections.188

178Just Landed, Switzerland Guide: Residence Registration(Mar. 25, 2013), available at

http://www.justlanded.com/english/Switzerland/Switzerland-Guide/Visas-Permits/Residence-registration.179Just Landed, Switzerland Guide: Residence Registration(Mar. 25, 2013), available at

http://www.justlanded.com/english/Switzerland/Switzerland-Guide/Visas-Permits/Residence-registration.180The Swiss Portal,Notification of Departure and Registration(Apr. 16, 2013), available at

https://www.ch.ch/en/notification-departure-registration/.181Swiss Federal Department of Foreign Affairs, Fact Sheet on Swiss Citizenship(Aug. 29, 2012), available at

http://www.eda.admin.ch/eda/en/home/reps/asia/vare/livare/natabu.html.182

Swiss Federal Department of Foreign Affairs, Fact Sheet on Swiss Citizenship(Aug. 29, 2012), available at

http://www.eda.admin.ch/eda/en/home/reps/asia/vare/livare/natabu.html.183

SWITZERLAND CONST. art. 136 (1999).184The Swiss Portal, Voting Rights in Switzerland: Who is Entitled to Vote?(Mar. 25, 2013), available at

https://www.ch.ch/en/voting-rights/.185SWITZERLAND CONST. art. 136(1) (1999).186S.R. 161.1 Federal Act on Political Rights(Switzerland, 1994), available at

http://www.admin.ch/ch/e/rs/161_1/index.html#id-ni1.187The Swiss Portal, Voting Rights in Switzerland(Mar. 25, 2013), available at https://www.ch.ch/en/voting-rights/.188AngloInfo, Voting in Switzerland(Mar. 25, 2013), available at

http://geneva.angloinfo.com/information/moving/voting/.


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However, in other cantons, EU/EFTA and non-EU/EFTA residents may be able to

vote in communal elections if they are 18 years or older, legally residing and

registered in Switzerland, and have lived in Switzerland for at least eight years.189

EU/EFTA and non-EU/EFTA residents cannot stand for election.190

Switzerlands Constitution stresses the importance of separating the exercise

of political rights between the federal and cantonal/communal levels. The Swiss

Confederation bestows political rights on Swiss citizens at the federal level;

cantons may regulate the exercise of political rights at the cantonal and communal

levels.191

Additionally, the Constitution stresses that Swiss citizens may only

exercise political rights in the commune in which they reside and that no one may

exercise their political rights contemporaneously in more than one canton.192

A

newly registered resident must wait for a period, not to exceed three months,

before exercising his right to vote on communal or cantonal issues.193

The Swiss Federal Act on Political Rights likewise provides that each Swiss

citizen (or foreign citizen in some communes) votes in the commune where he/she

is a resident and registered to vote.194

If a Swiss citizen provides identification

other than his/her certificate of origin, he/she can still acquire political domicile in

that commune if he/she can prove that he is not registered to vote in the commune

where his/her certificate of origin was issued.195

The Swiss Federal Act on

Political Rights therefore ensures that Swiss citizens have the opportunity to vote

by allowing them to prove their residency through different forms of identification.

In order to vote in his/her political domicile, a citizen who intends to and is

authorized to vote must be entered in the political register.196

Also, any person

who is eligible to vote can inspect the electoral register.197

This provides an

eligible voter with the opportunity to ensure that his/her name is properly on the

electoral register.

189AngloInfo, Voting in Switzerland(Mar. 25, 2013), available at

http://geneva.angloinfo.com/information/moving/voting/.190AngloInfo, Voting in Switzerland(Mar. 25, 2013), available at

http://geneva.angloinfo.com/information/moving/voting/.191

SWISS CONST. art. 39(1) (1999).192

SWISS CONST. art. 39(3) (1999).193

SWISS CONST. art. 39(4) (1999),.194S.R. 161.1 Federal Act on Political Rightsart. 3(1) (Switzerland, 1994), available at

http://www.admin.ch/ch/e/rs/161_1/a3.html.195S.R. 161.1 Federal Act on Political Rightsart. 3(2) (Switzerland, 1994), available at



http://www.admin.ch/ch/e/rs/161_1/a4.html.


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The Swiss Constitution says that the cantons will provide social services and

benefits for Swiss citizens, such as aid for the elderly, people with disabilities,198

and persons in need.199

The Confederation and the cantons also provide subsidies

for unemployed citizens in extraordinary circumstances200

and maternity

insurance.201

The Confederation and cantons contribute different amounts to either

supplement or subsidize social services and benefits for citizens.202

Because the

cantons are primarily responsible for the distribution of social services and health

care benefits,203

Swiss citizens who require social services and benefits need to

register with their new commune as soon as they move to a new commune in order

for the canton to know where they will receive benefits.

The Swiss constitution does not explicitly provide these same rights forEU/EFTA and non-EU/EFTA residents. Legislation provides for various social

security benefits for Swiss citizens, EU/EFTA residents, and non-EU/EFTA

residents, such as the Federal Law on General Provisions Concerning Legislation

on Social Insurances, the Federal Law on Sickness Insurance, the Federal Law on

Accidence Insurance, and the Federal Law on Old-Age and Survivors

Insurance.204

All residents in Switzerland must have basic health insurance.205

Switzerland has a three-pillar pension system: basic old-age insurance; company

pension funds; and private pension insurance.206

Old-age, survivors, and

invalidity insurance are compulsory for all persons employed in Switzerland, and

198SWITZERLAND CONST. art. 112c (1999).199SWITZERLAND CONST. art. 115 (1999).200SWITZERLAND CONST. art. 114(4) (1999).201SWITZERLAND CONST. art. 116(4) (1999).202Swiss Federal Social Insurance Office, Social Insurance Switzerland-EU/EFTA(Feb. 28, 2013), available at

http://www.bsv.admin.ch/soziale_sicherheit/index.html?lang=en.203

Paul A. Camenzind,Explaining Regional Variations in Health Care Utilization Between Swiss Cantons UsingPanel Econometric Models , BIOMED CENTRAL(Mar. 13, 2012), available at http://www.biomedcentral.com/1472-

6963/12/62.204The Federal Social Insurance Office, Overview of Swiss Social Security, 8, 13, 18 (Jan. 1, 2013), available at

http://www.bsv.admin.ch/themen/ueberblick/00003/index.html?lang=en&download=NHzLpZeg7t,lnp6I0NTU042l2Z6ln1ad1IZn4Z2qZpnO2Yuq2Z6gpJCDfYF4fGym162epYbg2c_JjKbNoKSn6A--.205Just Landed, Switzerland Guide: Introduction to the Swiss Social Security System (Mar. 26, 2013), available at

http://www.justlanded.com/english/Switzerland/Switzerland-Guide/Jobs/Social-security.206Expatica, Switzerlands Retirement Plan(Mar. 28, 2012), available at

http://www.expatica.com/ch/finance_business/pensions_insurance/Switzerland_s-retirement-plan_3537.html.


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unemployed and retired persons are obliged to pay pension contributions.207

The

Swiss social security system is funded by contributions from all residents who are

insured and their employers, but employers do not contribute to sickness

insurance.208

Individual occupational insurance is deducted from an individuals

taxable income, and the amount paid into the pension depends on the type of policy

the individual selected.209

This type of pension insurance is intended for persons

employed and domiciled in Switzerland, regardless of nationality.210

The Swiss Constitution and various statutes provide Swiss citizens the right

to free movement, the right to vote if they meet residency requirements, and access

to social insurance programs. Bilateral agreements give EU/EFTA residents the

same access to the rights of entry, residence, access to work, establishment on self-

employed basis, and the right to stay in Switzerland. Non-EU/EFTA citizens face

strict regulations to enter and live in Switzerland. EU/EFTA and non-EU/EFTA

residents are not eligible to vote in federal elections in Switzerland. However, insome cantons, EU/EFTA and non-EU/EFTA residents may be eligible to vote in

local elections. Legislation determines access to social security benefits for Swiss

citizens, EU/EFTA residents, and non-EU/EFTA residents legally working in

Switzerland and contributing to social insurance programs.

Conclusion

The freedom of movement is a founding principle of the EU and it

discourages member states from restricting citizens ability to move freely within a

member state and between member states. States recognize the importance of the

right to residency, the freedom of movement, the right to vote, and the right to

social services and benefits by providing for these rights in state constitutions and

legislation.

State practice indicates that there are no penalties or loss of these rights if a

person moves to a different commune, municipality, or province. Only in certain

circumstances will a citizen lose one of these rights when moving within a state

in most cases, if the person choses not to register in the new municipality to which

207Just Landed, Switzerland Guide: Introduction to the Swiss Social Security System (Mar. 26, 2013), available at

http://www.justlanded.com/english/Switzerland/Switzerland-Guide/Jobs/Social-security.208Just Landed, Switzerland Guide: Introduction to the Swiss Social Security System (Mar. 26, 2013), available athttp://www.justlanded.com/english/Switzerland/Switzerland-Guide/Jobs/Social-security.209Expatica, Switzerlands Retirement Plan(Mar. 28, 2012), available at

http://www.expatica.com/ch/finance_business/pensions_insurance/Switzerland_s-retirement-plan_3537.html.210Expatica, Switzerlands Retirement Plan(Mar. 28, 2012), available at

http://www.expatica.com/ch/finance_business/pensions_insurance/Switzerland_s-retirement-plan_3537.html.


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he moves. Ultimately, in keeping with the freedom of movement requirements of

the EU, citizens of EU member states, EEA member states, and Switzerland enjoy

the rights associated with free movement with almost no worry that the host state

will revoke such rights.