New EU deal: Free-movement rights gone?

Richard W wrote:

crunchycracker wrote:

crunchycracker wrote: 2) EU national living in the UK marrying a non-EU spouse who is currently living in the UK on a valid visa such as Tier 2 General won't allow the non-EU spouse to stay in the UK on the basis that the EU national is exercising his/ her treaty rights

Correct. However, they can move together to an EU country where the EU national has never lived.

RichardW, I don't know if I necessarily agree with your reply to this question, as a non-EU spouse on a Tier 2 Visa is technically 'lawfully residing' in the UK.

My interpretation on the proposal, specifically, "third country nationals who had no prior lawful residence in a Member State before marrying a Union citizen," is that it is mainly pertinent to those couples that are not co-habitating together in the member state (in this case the UK) prior to marriage. The same goes for the second part of the proposal.

I would assume that a Non-EU national on a Tier 2 visa is, in fact, living in the UK as a lawful resident. Should they marry an EU citizen living in the UK, then this proposal would not affect the Non-EU national. I think this proposal is meant to bring more control to restricting potential marriages of convenience, otherwise, all non-EU spouses would lose their treaty rights as a family member of an EU citizen.

I'm an Italian / American dual citizen living in the UK. I came over to the UK with my US unmarried partner 3 years ago. She is on a Tier 2 visa, and because I had been going through the paper work process to become recognized as an Italian citizen, I was also on a Tier 2 visa. We married last April, and my paperwork for Italian citizenship finalized in the Autumn. I am now exercising my treaty rights and my spouse has recently applied for her EEA2 card, ultimately dissolving her status as a Tier 2 migrant. If your assumption proves correct, well then, we would both have to move, as she wouldn't have maintained her status as a lawful Tier 2 resident. It seems a bit convoluted to pick apart relationships like these, as opposed to ones that look 'convenient' from a immigration standpoint in order to circumvent national immigration laws.

BUT
if the law comes into place say in June after a YES vote, do you think it will apply for people already taking the EEA route at present (ie on their EEA2s, awaiting EEA4s)?
Shouldnt this law be applied to people entering the UK after implementing the law? So for example newcomers on a family eea visa?

No one knows for sure. However, in the past, especially with other immigration rules in the UK, the date of application is the date in which respective immigration rules apply. Meaning, applications are considered under the rules that are in force at the date of application.

Cool.
So in this instance, are:
1) all noneu spouses of eu citizens residing in uk will be refused and asked to leave?
2) some noneu spouses, but which category and on what basis?
3) i got the whole thing wrong

the3rdman wrote:No one knows for sure. However, in the past, especially with other immigration rules in the UK, the date of application is the date in which respective immigration rules apply. Meaning, applications are considered under the rules that are in force at the date of application.

But remember that EEA Regulations are not Immigration Rules. They are made under different Acts of Parliament and behave in different ways. For instance, the Immigration Rules are tougher, but have some discretion that can be exercised. The EEA Regulations do not have discretion. You either meet the requirements 100% or you don't.

They are completely different in character. Do not assume that the same rules apply.

nemerkh wrote:Cool.
So in this instance, are:
1) all noneu spouses of eu citizens residing in uk will be refused and asked to leave?
2) some noneu spouses, but which category and on what basis?
3) i got the whole thing wrong

The short answer is "Nobody knows", not even the politicians, diplomats or lawyers. It is a "known unknown".

No one knows at the moment. We are just all speculating based on the morsels of information that are available on the proposed measures put in place should the UK remain in the EU. Again, these are speculations. The proposals meant to brought to the table, should the UK remain in the EU, would still need to go through a vote by the EU council.

If the UK leave the EU, even less is known about what would happen next.

secret.simon wrote:

the3rdman wrote:No one knows for sure. However, in the past, especially with other immigration rules in the UK, the date of application is the date in which respective immigration rules apply. Meaning, applications are considered under the rules that are in force at the date of application.

But remember that EEA Regulations are not Immigration Rules. They are made under different Acts of Parliament and behave in different ways. For instance, the Immigration Rules are tougher, but have some discretion that can be exercised. The EEA Regulations do not have discretion. You either meet the requirements 100% or you don't.

They are completely different in character. Do not assume that the same rules apply.

My apologies; I didn't intend to assume. As I stated, no one knows for sure.

I can only speculate that if the UK would assume more control of EEA Regulations, i.e. Leaving the EU, that immigration rules could come into effect. Or, if the UK were to remain, then immigration rules could come into effect for the Non-EU partners and family of EU citizens should the EU proposals on Non-EU FMs come into force.

From previous experience with immigration rules, my initial response was meant to suggest what could happen based on how new immigration rules were enforced.

My words are not meant to be taken as absolute fact.

the3rdman wrote: RichardW, I don't know if I necessarily agree with your reply to this question, as a non-EU spouse on a Tier 2 Visa is technically 'lawfully residing' in the UK.

RichardW, I don't know if I necessarily agree with your reply to this question, as a non-EU spouse on a Tier 2 Visa is technically 'lawfully residing' in the UK.

Hi everyone, thanks for replying! much appreciated.

I agree with RichardW, i think the key issue is with the word "OR" in the EU draft. The "OR" implicitly says that
if either:
1) non-EU spouse do not have legal right to stay in "A" member state i.e. any EU/EEA countries
2) if the non-EU spouse and the EU spouse only got married after the EU spouse arrive in the host country

For either of both cases, the EU citizen may not sponsor his/her non-EU spouse in the EU citizen's host state, unless they both meet the host state's immigration criteria. For the UK, it possibly means the £18600 income requirement etc.

For example,

In my case, I am currently in the UK on tier 2. I've only met my EU spouse in the UK after he arrived here. We've recently got engaged and plan to marry. Although I have prior legal residence in the UK, but because we were only married after my EU spouse arrives here, I do not inherit the free-movement rights but he has to sponsor me as per UK immigration law.

However because I had prior legal rights to live in "a" host state (UK being an EU member thus is "a" host state), and we got married in the UK, then my spouse would be able to bring me with him to another EU country because we satisfy both criteria:
1) I had legal right to live in "A" EU country and
2) we were married before my EU spouse moved to the new EU country

In either way, it seems like the Surinder Singh method will still be valid for me as I currently do have legal right to live in the UK. However Surinder Singh will not work for anyone who do not have legal rights to live in the EU unless the non-EU spouse gets the right to live in the EU citizen's home country.

And for your case, it would likely be the same - you won't be able to sponsor your spouse unless you meet UK's immigration criteria. However having said that, it should not affect current approved EEA2 visas. I.e. if your spouse acquire EEA2 before the law was enacted, then your spouse will still have the legal right to remain in the UK with you. This is because laws only applies to when it was being enacted.

For example, if 5 years ago, theft was legal but as of 2016, theft was criminalised. Any theft that happened before 2016 cannot be prosecuted as before 2016 it was completely legal. This however can have exceptions for example in the case of humanitarian issues e.g. war crimes. Likewise, if gay marriages wasn't legally recognised until 2016, then any gay marriages that happened in the UK before 2016 won't be recognised but new gay marriages will be.

the3rdman wrote:

Richard W wrote:

crunchycracker wrote: 2) EU national living in the UK marrying a non-EU spouse who is currently living in the UK on a valid visa such as Tier 2 General won't allow the non-EU spouse to stay in the UK on the basis that the EU national is exercising his/ her treaty rights

Correct. However, they can move together to an EU country where the EU national has never lived.

RichardW, I don't know if I necessarily agree with your reply to this question, as a non-EU spouse on a Tier 2 Visa is technically 'lawfully residing' in the UK.

The right destroyer here is the second clause: or who marry a Union citizen only after the Union citizen has established residence in the host Member State.

the3rdman wrote: I'm an Italian / American dual citizen living in the UK. I came over to the UK with my US unmarried partner 3 years ago. She is on a Tier 2 visa, and because I had been going through the paper work process to become recognized as an Italian citizen, I was also on a Tier 2 visa. We married last April,

So your wife had prior legal residence before you married. You escape the first clause.

the3rdman wrote: and my paperwork for Italian citizenship finalized in the Autumn.

The question is therefore whether you married your wife before or after you established residence in the host member state. If we take the view that you did not establish yourself as a Union citizen in a host state until you became Italian (I'm assuming you weren't actually Italian when you arrived in the UK), then you're OK. On the other hand, if we take the view that you as a person established yourself 3 years ago, then you two may work in any EEA state but the UK!

Perhaps Mrs the3rdman completely escapes the restrictions because she didn't marry an EU citizen; instead she became the spouse of one when he became an EU citizen! A tenuous alternative is that she forfeited her rights by entering an unregistered partnership with a future Union citizen before gaining residence in Europe. The importance of such logic chopping emphasises that this proposed rule is not a good rule.

To be safe, you should have used your crystal ball and switched to the UK family route - except that working Italians don't qualify as settled just because they reside in the UK. (Or have I got this wrong - it doesn't sound right to me.)

This would be hilarious if there weren't such a high potential for misery.

crunchycracker wrote: However because I had prior legal rights to live in "a" host state (UK being an EU member thus is "a" host state), and we got married in the UK, then my spouse would be able to bring me with him to another EU country because we satisfy both criteria:
1) I had legal right to live in "A" EU country and
2) we were married before my EU spouse moved to the new EU country

In either way, it seems like the Surinder Singh method will still be valid for me as I currently do have legal right to live in the UK.

Unless the fact that he had previously established himself in the UK continues to disqualify you from family member freedom of movement rights in respect of the UK.

Incidentally, you're assuming both parties reside in the same country when they marry. That's not true; they don't even have to be physically present in the same country when they marry!

Don't place too much emphasis on residence cards. They only confirm status; they don't grant it. Remember the 1968 Immigration Act, which suddenly made most East African CUKC passports issued by the UK government invalid for entry to the UK. The only protection is the difficulty of working out who would have qualified under the proposed rules. The UK claims the right of checking the validity of foreign EEA residence cards.

Richard W wrote:Don't place too much emphasis on residence cards. They only confirm status; they don't grant it. Remember the 1968 Immigration Act, which suddenly made most East African CUKC passports issued by the UK government invalid for entry to the UK. The only protection is the difficulty of working out who would have qualified under the proposed rules. The UK claims the right of checking the validity of foreign EEA residence cards.

Either you have a very good memory or very good research skills. A very specific and relevant precedent to cite. Would you know when the doctrine of "legitimate expectations" was introduced into immigration law? Or did it not apply in 1968 because an Act of Parliament is not questioned by the courts?

Much as this thread is entertaining, I hope that everybody realises, as Richard W has pointed out, that all the speculation is based on press releases and letters for discussion. None of the wording is in even proposed or draft legislation, let alone legislation that has been enacted.

Richard W wrote:That's not true; they don't even have to be physically present in the same country when they marry!

Correct. There have been questions on these forums about proxy marriages and marriages by phone with one party in the EU and the other typically in an African country.

the3rdman wrote:My apologies; I didn't intend to assume. As I stated, no one knows for sure.

I can only speculate that if the UK would assume more control of EEA Regulations, i.e. Leaving the EU, that immigration rules could come into effect. Or, if the UK were to remain, then immigration rules could come into effect for the Non-EU partners and family of EU citizens should the EU proposals on Non-EU FMs come into force.

From previous experience with immigration rules, my initial response was meant to suggest what could happen based on how new immigration rules were enforced.

My words are not meant to be taken as absolute fact.

Thank you for clarifying. You were quite correct to state the likelihood of applications already submitted being treated according to the old rules. I was just concerned that others may treat it as gospel and absolute.

RichardW, thanks for the reply.

Well, luckily, all of this is just speculative, as I agree with you that the logic chopping emphasizes the folly of this proposal. However, we should remember that we aren't entirely sure how this proposal would be implemented, and I am a bit dubious about the definition of 'or' in this proposal.

My Italian citizenship is based on my blood line, so technically, I've been Italian since birth, but only recognized recently. I came to the UK as an American on a Tier 4 student visa. After that, I switched to Tier 2. Technically, I'm still on my Tier 2, so I'm not sure exactly when I began exercising my treaty rights, as my dual citizenship has made the situation a bit tricky. So, when I married my wife, I was in the UK as an 'American.' But now I am trying to exercise my treaty rights, even though I'm in the same job since obtaining Tier 2.

So, say we did have to move to another EU country, couldn't we then move back to the UK after establishing residence in the new EU country?

Richard W wrote: Incidentally, you're assuming both parties reside in the same country when they marry. That's not true; they don't even have to be physically present in the same country when they marry!

Apologies, I'm stating that for my case where both my and my spouse intend to live together and if UK immigration law doesn't allow us to live together, he could very well exercise his rights by bring me to another EU state with him. However if in the future reasons such as if he got a better job in the UK and wants to return, he could bring me back easily as the current clause only requires me to:

1) have prior right to reside in a member state
2) be married before my spouse move to a new EU state

which is effectively the same as Surinder Singh method albeit with 2 additional clauses. There's no indication (so far, yet) on whether or not my spouse's previous residence in UK would count towards that.

Think is might be prudent to consider why EU Rules for immigration came into being and subsequently SS etc.

I'd understood it was devised purely to give those EU citizens living and working in EU States other than their own a path to import their non-EU inamorata as they cannot use their home State rules (not resident) nor their current State's rules (not a local Citizen). To be honest I don't know exactly WHY its not possible to use another States immigration rules, other than legal rhetoric. Anyway, let's say thats a given.

It's a decent solution for a real problem. That's what it was designed for. What it wasn't designed for was to facilitate a backdoor for those who can't afford local immigration, or wish to bypass local law in favour of more open EU law, thinking Adult dependant relatives here.

While the rules are in place as they are, I don't blame people for taking advantage of them, but let's not kid ourselves, hopping to Dublin for a few weeks and bringing the entire family into UK on SS isn't really Cricket. It was bound to eventually set the alarm bells off at UKVI and this is what we're seeing now.

I'd agree changing things goes against all the EU stands for on freedom of movement, but sometimes things need to change because people by their very nature find a loophole and abuse it, as would I before anyone jumps on me!

the3rdman wrote:My Italian citizenship is based on my blood line, so technically, I've been Italian since birth, but only recognized recently.

You may want to check how Italian law applies in this aspect.

A close analogy is claiming British citizenship through a British mother for children born before 1983. The claim to citizenship arises from the fact that they were born to a British mother, but the citizenship is granted through registration by the Home Office/SSHD and the citizenship is acquired from the date of registration, not that of birth.

the3rdman wrote:Technically, I'm still on my Tier 2, so I'm not sure exactly when I began exercising my treaty rights, as my dual citizenship has made the situation a bit tricky. So, when I married my wife, I was in the UK as an 'American.' But now I am trying to exercise my treaty rights, even though I'm in the same job since obtaining Tier 2.

Nope, actually, it is dead simple. EEA citizens are not subject to the Immigration Rules(see Sections 5 & 7). Therefore when you acquired Italian citizenship, any leave granted to you under the Immigration Rules ceased. You do not have a Tier 2 visa anymore.

Do these new measures affect only the Surinder Singh applications or do they affect the ones of Eu-nationals residing in the UK who then get married to a non-EU ?

I've read the thread, but it seems that you are discussing only the Surinder Singh route. To me it seems that the wording of the new measures include as well EU-nationals who are not British citizens, but have been working in the UK and then get married to a non-EU and want to apply for a residence card for their spouse. Is it so or would it affect only the Surinder Singh couples ?

Wanderer wrote:Think is might be prudent to consider why EU Rules for immigration came into being and subsequently SS etc.

I'd understood it was devised purely to give those EU citizens living and working in EU States other than their own a path to import their non-EU inamorata as they cannot use their home State rules (not resident) nor their current State's rules (not a local Citizen). To be honest I don't know exactly WHY its not possible to use another States immigration rules, other than legal rhetoric. Anyway, let's say thats a given.

It's a decent solution for a real problem. That's what it was designed for. What it wasn't designed for was to facilitate a backdoor for those who can't afford local immigration, or wish to bypass local law in favour of more open EU law, thinking Adult dependant relatives here.

While the rules are in place as they are, I don't blame people for taking advantage of them, but let's not kid ourselves, hopping to Dublin for a few weeks and bringing the entire family into UK on SS isn't really Cricket. It was bound to eventually set the alarm bells off at UKVI and this is what we're seeing now.

I'd agree changing things goes against all the EU stands for on freedom of movement, but sometimes things need to change because people by their very nature find a loophole and abuse it, as would I before anyone jumps on me!

I doubt that so much thought went into creating an SS route specifically. It was more a case of the ECJ/CJEU applying the Treaty in a very broad manner. The consequences of it can be seen years later, but the Court has not reversed itself, as it did in Metock.

I quote from Steve Peer's analysis of the UK-EU deal;

Note that according to the CJEU, EU free movement law does not just require the abolition of discrimination between UK and other EU citizens, but also the abolition of non-discriminatory ‘obstacles’ to free movement.

The latter part of the interpretation is what makes Surinder Singh so hard to close. Conversely, that creates two tiers of EU citizens; those who do exercise their freedom of movement and those who don't.

Hi guys! Thank you all for your contributions. Honestly I cannot
express how valuable these discussions are.

So I was following Caneron's negotiations and I did keep
hearing mutterings about "clamping down on non-EU
migrants who have obtained residence elsewhere". More
particularly I heard this on Sky news with Dermot Murnagham
who was having a frantic debate with one of the leaders for
vote in.

They did not specifically mention Surrinder Singhers but I
suspected it was us who were being attacked/targeted.

Regardless in my opinion this is another provision similar
to the Centre of Life that was introduced a few years ago.
At best I reckon it will just be another hurdle towards Surrinder
Singh route but nothing that will make the situation beyond
reach like Appendix FM and the income threshold.

What I think is a more pressing question is what this
regerendum really entails- just leaving the EU which to my
understanding will have little impact on existing treaties
and subsequently Surrinder Singhers. Or an absolute ALL OUT
withdrawal of both the EU and the EEA.

s1120403 wrote:Do these new measures affect only the Surinder Singh applications or do they affect the ones of Eu-nationals residing in the UK who then get married to a non-EU ?

I've read the thread, but it seems that you are discussing only the Surinder Singh route. To me it seems that the wording of the new measures include as well EU-nationals who are not British citizens, but have been working in the UK and then get married to a non-EU and want to apply for a residence card for their spouse. Is it so or would it affect only the Surinder Singh couples ?

The proposed draft:
"exclude, from the scope of free movement rights, third country nationals who had no prior lawful residence in a Member State before marrying a Union citizen or who marry a Union citizen only after the Union citizen has established residence in the host Member State."

There are 2 clauses here:
1) Non-EU national do not have prior lawful residence in a member state or
2) Marrying EU national after he has established residence in the host member state.

What this means is that if the non-EU citizen currently residing in the UK legally married a EU citizen in the UK after he has established residence in the UK, the non-EU citizen will not inherit the free-movement rights from his spouse to stay in the UK.

The EU citizen can however, after marrying the non-EU citizen residing legally in the UK, exercise the free movement rights by bringing the spouse to another EU country e.g. France/ Ireland etc as both criteria will be met (1) non-EU citizen has lawful residence in the UK. 2) The couple were married before they move to another EU host country ).

What remains unknown is if the EU citizen would be able to bring the non-EU spouse back to the UK after exercising his treaty rights in another EU country. There is a potential loophole that would be similar to the Surinder Singh case - bringing non-EU spouse in without subject to British immigration laws.

In other words, the new draft only affects Surinder Singh case where the non-EU spouse is not currently living in the UK legally (EU citizen bringing spouse directly from non-EU country by first exercising treaty rights in Europe). For cases where non-EU spouse is already living in the UK, the Surinder Singh method might still work.

ryuzaki wrote:

Wanderer wrote:What's ridiculous about it?

It is supposed to ensure integration, but if that were the case it would be a requirement to integrate.

We're only able to engage in this dialogue because of a common tongue, in this case English.

So if i am from Lebanese nationality, went to latvia before they joined eu as a student, then married my wife (latvian-eu) after they joined the eu, came to UK on family visa then eea2 will that mean am targeted bow?

nemerkh wrote:So if i am from Lebanese nationality, went to latvia before they joined eu as a student, then married my wife (latvian-eu) after they joined the eu, came to UK on family visa then eea2 will that mean am targeted bow?

If your entire residence in Latvia up until you married your wife was lawful, I believe the only planned new restriction announced is that you can't use the family member rights to return to Latvia. The only issue is what exactly counts as 'lawful residence'.

I resided there as a student continuously.
How can they backdate the law to then!!!
Plus what happens to us in the uk am not worried about latvia