For many EEA/EU citizens and their families, moving to Germany is an important step that comes with high expectations, but is often accompanied by uncertainty and bureaucratic hurdles. At the latest when registering, concluding an employment contract, taking out health insurance or looking for an apartment, the term “residence card” or “certificate according to § 5 FreizügG/EU” suddenly appears, which many of those affected cannot classify at first. Although the right of residence already exists under EU law, authorities, employers or landlords often require formal proof and unsettle those affected with ambiguous or unclear requirements.
In this article, the lawyer Björn Maibaum, who specialises in migration law, provides information on the legal function of the certificate according to § 5 FreizügG/EU, its differences to a residence card and residence permit, the right to be issued, the requirements and evidence relevant in practice as well as the advantages of specialised legal support in the effective enforcement of your freedom of movement rights vis-à-vis the authorities.
What does the certificate according to § 5 FreizügG/EU mean and why is it so important for EU citizens and EEA citizens?
Within the European Union and the EEA area (EU area plus Norway, Iceland, Liechtenstein), citizens enjoy the right to move and live freely in other Member States. This right is enshrined in the EU Freedom of Movement Act. Section 5 of the Freedom of Movement Act/EU describes the so-called certificate of freedom of movement. It serves to prove the already existing freedom of movement of an EU citizen. However, this is not a residence permit or an authorisation, but merely a confirmation that a person is effectively exercising his or her right to freedom of movement under EU law.
Practical requirements of authorities and employers
Moving to Germany is a big step for many people, couples and families, which is often associated with bureaucratic hurdles. When registering at the town hall or citizens’ office, when starting a job or looking for accommodation, those affected are often confronted with the certificate according to § 5 FreizügG EU.
They are then often uncertain that they are staying illegally in Germany or even have to leave the country. However, in most cases, these concerns are unfounded, as European law offers special protection. There is often also perplexity as to what is meant by such a certificate when there is freedom of movement in the EU/EEA area.
Authorities or employers often require formal proof of the existing right of residence, even though EU citizens already have this right under EU law. The Certificate of Freedom of Movement therefore facilitates many everyday procedures, as it is an official document that provisionally certifies freedom of movement and provides clarity in contact with authorities and private bodies.
The right of residence is usually automatic
We can take away the fear of staying illegally in Germany or having to leave the country at this point. The legal status of family members of EU citizens is fundamentally different from that of other foreigners in Germany.
In these cases, the right of residence is not only granted by an official permit. Rather, it arises directly from the law. As soon as there is a family relationship with an EU citizen entitled to freedom of movement and he or she exercises his or her right to freedom of movement in Germany, the accompanying family members also have a right of residence.
Everyday relevance of the certificate of freedom of movement
Although the certificate according to § 5 FreizügG/EU is not a prerequisite for legal residence, it plays an important role in everyday life and in bureaucratic processes. For many EU EEA citizens who move to Germany, the Certificate of Freedom of Movement is the document that makes it visible for the first time that their residence is legally secured. This creates a sense of security and structure, especially in a phase where many organizational steps such as registration, account opening or starting work have to be mastered at the same time.
What is the legal basis of the Freedom of Movement Act with regard to the certificate pursuant to Section 5 of the Freedom of Movement Act/EU?
The Freedom of Movement Act/EU is the central national provision that specifies the right of free movement of EU citizens as well as EEA citizens (EU area plus Norway, Iceland, Liechtenstein) and their closest relatives in Germany, which is guaranteed by EU law. The right of residence of EU citizens and their families derives directly from EU law and not from a residence permit.
This means that the right of residence exists regardless of whether a German administrative procedure has been completed or a national document has been issued. Therefore, the certificate provided for in § 5 FreizügG/EU has only declaratory significance. It confirms an already existing right and does not create a new legal position.
Difference between residence card and certificate
In the law, two documents are often confused, but they fulfil different functions: the certificate according to § 5 FreizügG/EU and the residence card.
The residence card is the long-term document for third-country nationals. It is usually valid for five years and is issued after the authority has checked whether all the requirements are actually met. The law stipulates that this card must be issued within six months of application.
In the period prior to the issuance of the residence card, the certificate pursuant to Section 5 of the Freedom of Movement Act/EU is practically the confirmation of receipt and provisional proof of the waiting period until this issuance. The certificate thus documents that a person is entitled to freedom of movement. The Foreigners’ Registration Office must therefore immediately certify that the applicants have provided the necessary information. This certificate is not an administrative act against which an objection would have to be filed, but a pure confirmation of facts. It proves that the persons concerned are in the process and that their residence is considered lawful until the final decision on the residence card has been made.
Beware of the risk of confusion: Certificate of permanent residence
Another term that often causes confusion is the certificate of the right of permanent residence (§ 4a FreizügG/EU). This certificate is usually only relevant after five years of legal residence and concerns a consolidated status that goes far beyond what you need immediately after entry.
For the start in Germany, the only decisive factor is the distinction between the immediately available certificate according to § 5 FreizügG/EU and the residence card that follows later.
What exactly is the certificate according to § 5 FreizügG/EU and what function does it fulfil?
The certificate according to § 5 FreizügG/EU is an official document issued to EU and EEA citizens (EEA = European Economic Area: (EU states plus Norway, Iceland, Liechtenstein) and their family members entitled to freedom of movement. It confirms that the persons concerned have a right of residence under EU law. However, this right itself does not arise from the certificate, but follows directly from EU law. The certificate therefore has purely declaratory significance, i.e. it only makes an already existing right to freedom of movement visible, but does not create it in the first place.
This applies mutatis mutandis to family members who are not themselves EU citizens or nationals of an EU state. Their legal status is also based on EU law, so that the certificate merely documents that the conditions for their right of residence are met.
Difference to residence permit and significance in administrative enforcement
In contrast to a residence permit under the Residence Act, the certificate is not a residence title with constitutive effect. Freedom of movement does not depend on the possession of a document. Even without a certificate, the right of residence continues to exist as long as the legal requirements are met. At the same time, the document plays an important role in administrative enforcement.
Obligation of the authorities to issue
The competent authorities must issue the certificate as soon as the necessary information on the right to freedom of movement has been provided. In principle, there is no prior comprehensive examination of the substantive requirements. It is sufficient for the EU citizen to submit the required data and provide credible evidence of his or her right to freedom of movement. This approach emphasises that freedom of movement exists primarily by operation of law and that the official certificate is merely its external confirmation.
Abolition of earlier documents and current classification
Previously, there was a separate certificate of freedom of movement, which was abolished in 2013. Today, the certificate according to § 5 FreizügG/EU takes its place, but with a modified meaning. While earlier documents were sometimes regarded as declaratory administrative acts, the current certificate only declares that freedom of movement exists. This makes it clear that the right of residence of an EU citizen must not be dependent on an administrative act.
Practical use in everyday life
Even if the certificate does not establish the right of residence, it is often very helpful in everyday life. Employers, banks, landlords or other authorities often require formal proof of legal residence. The certificate thus allows easier access to services and prevents misunderstandings and delays in the administrative process.
Who is entitled to the certificate in accordance with Section 5 of the Freedom of Movement Act/EU?
The law links the claim to various conditions, all of which, however, are due to freedom of movement within the European Union. The decisive factor here is whether and what family connection exists to an EU citizen who exercises his or her right to freedom of movement in Germany.
Family members of EU citizens entitled to freedom of movement
The core of the beneficiaries are third-country national family members of EU citizens. This refers to persons who do not themselves have the nationality of an EU or EEA member state, but who are closely associated with an EU citizen. Typical cases include a Turkish wife who moves to Germany with her German husband, or a Brazilian husband who accompanies his Polish wife, who has started a job here. Minor children also fall into this category, as do parents or grandparents under certain conditions, provided that they are economically dependent on the EU citizen.
However, the decisive prerequisite is not only the family affiliation itself. The Union citizen must also be entitled to freedom of movement. In concrete terms, this means that he must work, be self-employed, study or have sufficient means of subsistence as well as health insurance in Germany. The EU citizen must also have made sustained use of the right to freedom of movement, i.e. he must not have entered the country for a short period of time for tourist purposes. Only if the EU citizen fulfils these conditions can his family members from third countries benefit from his right to free movement. The right of residence of family members is therefore dependent on the status of the Union citizen (this link is also known as ancillary).
Problems regularly arise in the event of separation/divorce from an EU citizen or in proceedings for the determination of losses. In both cases, a lawyer should be consulted as soon as possible.
Importance of the required information
The certificate according to § 5 FreizügG/EU is not automatically handed over upon entry. Rather, their issuance presupposes that the family member has provided the necessary information to the competent authority. This formulation of the law sounds a bit unwieldy at first. It means that those affected have presented themselves to the registration office or directly to the foreigners’ registration office and have provided the necessary information about themselves and their family relationship.
The time component is important: The law provides that the immigration authority can demand that this information be provided within three months of entry. This means that those affected do not have to go to the authorities on the first day after their arrival. In practice, however, the authorities rarely make corresponding requests.
No substantive examination in the first step
A particularly important aspect that is often overlooked concerns the legal quality of the certificate. According to European law and the case law of German courts, the certificate pursuant to Section 5 of the Freedom of Movement Act/EU must be issued immediately as soon as the applicants have provided the required information. The authority may not make the issuance dependent on a comprehensive examination of whether all substantive requirements for a right to freedom of movement are actually met. This in-depth examination will only take place later in the context of the issuance of the actual residence card, which may take up to six months.
In concrete terms, this means that even if individual proofs are still missing or the authority has doubts about certain requirements, the certificate is initially entitled. Only if it turns out in the further course that the conditions are actually not met can the authority refuse to issue the residence card with a so-called loss assessment.
What requirements do EU citizens have to meet for the issuance of a certificate according to § 5 FreizügG/EU?
The conditions for the issuance are directly linked to the right to freedom of movement under EU law. This right exists independently of a national residence permit and derives from EU law. The decisive factor is that the person concerned fulfils the substantive conditions for freedom of movement, for example as an employee, self-employed person, jobseeker, student or economically independent person.
Required evidence to the authority
Although the authority does not yet check the requirements for issuing the certificate pursuant to Section 5 of the Freedom of Movement Act/EU, it does require certain information and documents for the issuance. This can include proof of family relationship, taking up work, self-employment, sufficient health insurance or sufficient means of subsistence.
In principle, EU citizens have the right to have the necessary information processed without delay and, if necessary, forwarded to the competent authority. The authority must not impose disproportionate requirements and must comply with the formalities prescribed by EU law.
Prima facie evidence of the conditions for freedom of movement
The Foreigners’ Registration Office is entitled to demand that the conditions for freedom of movement are substantiated. The purpose of this requirement is to confirm that the Union citizen or the members of his family do indeed fall into one of the categories relevant to free movement.
In the case of family members from third countries, the authority may also require prima facie evidence, although only the documents expressly provided for by law may be required.
Requirements for family members of EU citizens
Family members who are not themselves EU citizens must prove that they have a derived right of residence. To this end, the authority may in particular request information on the family relationship and the cohabitation protected by EU law.
Here, too, the principle applies that the certificate has only a declaratory character and does not have a constitutive effect. If the secondary right exists, the certificate must be issued. The requirements for prima facie evidence may not go beyond the extent provided for by law. If proof is provided, there is a right to be issued within the statutory deadlines.
What problems can arise when applying for the certificate of freedom of movement and why is legal support so important?
In practice, it has been shown time and again that applicants face difficulties when applying for the certificate of freedom of movement, even though they are clearly entitled to freedom of movement. A common problem concerns the question of which documents the authority is actually allowed to demand.
It is also often not possible to take up work because employers require proof of the employment permit. However, an explicit employment permit is often not included in the provisional certificate by the authorities, which can lead to misunderstandings and problems when taking up work.
Many applicants experience that evidence is requested that the law does not provide for or that is not even necessary in the specific situation. These include, for example, excessively detailed information on the financing of living expenses or far-reaching documents on professional activity that go beyond what is required by law.
Self-employed people in particular quickly come under pressure to justify themselves, as the authorities sometimes doubt the seriousness of self-employment. This creates unnecessary delays and uncertainties. Family members of EU citizens, especially those from third countries, also often have to answer additional questions, even though their status under EU law is clearly regulated. Such situations understandably trigger frustration and uncertainty in many of those affected.
Misjudgements by the authorities about the conditions for freedom of movement
Another practical problem is that authorities do not always correctly classify the legal requirements for the right to freedom of movement. For example, some Union citizens looking for work are expected to take up employment, although the right to freedom of movement expressly also protects the search for work. In other cases, health insurance coverage is incorrectly assessed or requirements are imposed that originate from the law on foreigners but are not applicable to EU citizens.
Such misjudgements can have serious consequences, as they lead to delays or even to the refusal to issue the certificate. This increases the risk that employers, landlords or other bodies will misjudge the residence status, which can lead to a real disadvantage for those affected.
Procedural errors can jeopardise freedom of movement
Even if the certificate of freedom of movement itself is only declaratory in nature, problems during the administrative procedure can have far-reaching practical effects. If the authority expresses doubts about the existence of free movement or initiates additional investigations, it is easy to create an impression of uncertainty. This can have a negative impact on the employment relationship, the housing situation or social law claims.
In addition, wrong official decisions or delays often lead to follow-up proceedings. These include, for example, review procedures in which the authorities question the continuation of freedom of movement. Under no circumstances should those affected go through such proceedings without specialized legal assistance, as they are associated with considerable legal risks.
Why a specialist lawyer for migration law is indispensable
Especially in the area of freedom of movement law, it is clear that specialized knowledge is crucial. The connection between European freedom of movement law and national residence law is complex. Mistakes often happen when it comes to the question of which documents are required, which requirements are legally permissible or which deadlines must be met.
An experienced specialist lawyer for migration law ensures that the rights of EU citizens and their family members are fully protected. He checks whether the official requirements are lawful, enforces claims for the issuance of the certificate and prevents inadmissible delays. In addition, it can intervene at an early stage if the authority shows signs of examining the non-existence of free movement. This is particularly important as such procedures can have significant consequences later on.
Attorney Björn Maibaum is your specialized contact person
It is therefore advisable for those affected to contact an expert at an early stage. He is a specialist lawyer for migration law and has many years of experience in freedom of movement law and in dealing with immigration authorities. He knows the typical sources of error, the official processes and the legal options to achieve a quick and legally secure solution.
Clients benefit in particular from the fact that he not only supports them in the application, but also legally challenges erroneous decisions, prevents delays and develops the right strategy in complex situations such as self-employment, family reunification or job search. His specialization ensures professional representation at all stages of the proceedings.
Conclusion: The five most important points for certification according to § 5 FreizügG/EU
- Certificate confirms an existing right of residence: EU citizens and their family members automatically have their right of residence under EU law. The certificate pursuant to Section 5 of the Freedom of Movement Act/EU is therefore not an authorisation, but merely a confirmation of this already existing right.
- Many authorities and employers still require a certificate: Although freedom of movement does not depend on the possession of a document, authorities, banks, employers and landlords often require formal proof of freedom of movement and work permit. The certificate therefore simplifies many everyday processes and prevents misunderstandings.
- Family members from third countries benefit from the EU citizen’s right to freedom of movement: The right of residence of family members from third countries depends on the status of the EU citizen. As soon as they are entitled to freedom of movement and live in Germany, their relatives also have a legally protected right of residence.
- The authority must issue the certificate without delay: it is sufficient for the certificate to be issued if the necessary information is available. A comprehensive substantive examination is only carried out later with the residence card. The certificate in accordance with Section 5 of the Freedom of Movement Act/EU serves as provisional proof.
- Wrong requirements or wrong decisions are common: In practice, authorities often require more documents than required by law or assess the requirements incorrectly. This leads to delays and unnecessary uncertainty. Specialized support from a specialist lawyer for migration law can be crucial here to prevent mistakes and enforce claims.
Create legal certainty now with specialist lawyer Björn Maibaum!
If you encounter problems when applying for the certificate according to § 5 FreizügG/EU, are unsure which documents are required, or if the authority imposes inadmissible requirements, you should not hesitate to seek professional help. Lawyer Björn Maibaum is a specialist lawyer for migration law and specialises in migration and freedom of movement law. He knows the typical difficulties and sources of error in dealing with immigration authorities.
He or she will provide you with competent support in enforcing your rights, avoiding delays and legally securing your stay in Germany.
Make an appointment for a consultation now and get individual and expert advice.
