The UK simply ask the European commission to adjust the free movement of EU citizens and their family to protect sharm marriages and illegal immigrants, They have sent a proposal on this issue to the European commission and a final report will be published early 2009.
I am sure the UK is trying to implement their own rules and national laws by not adopting the rules and regulations of the EU (EU Directive 2004/38/EC), Part of this is to make their EEA FAMILY PERMIT lawful under EU law and Directive for EU family member to apply for when traveling to the UK.
The EU Directive 2004/38/EC allows family member to accompany and join their EU citizens within the EU/EEA territories without an entry visa (which is now accepted in all EU/EEA countries except UK and IRELAND), Even said when holding a family member residence permit from any EU/EEA then its equivalent to a 90days stay in any EU/EEA territories But we all know UK doesn't accept this as family member still require a visa (EEA FAMILY PERMIT).
Lets see what the outcome will be next year, I guess they don't want foreigners in Europe or maybe non-Europeans shouldn't get married to their citizens or maybe their is something we all just don't understand (beloved).
This is the copy of the proposal below...
The UK proposals on EU free movement law:
an attack on the rule of law and EU fundamental freedoms
Introduction
On 18 November, the UK delegation to the European Union circulated a paper for
discussion at the next JHA Council, scheduled for 27-28 November. The paper
includes draft conclusions on EU free movement law, which governs the right of
free movement for EU citizens who wish to move and reside in other Member
States.
The draft conclusions constitute an attack on the rule of law and the fundamental
freedom of EU citizens and their family members to move freely within the
Community. They indicate an intention to:
- ignore a recent important ruling of the Court of Justice as well as many
prior rulings of the Court;
- attempt to dictate to the Court how to interpret EC legislation;
- amend or re-interpret EC legislation at the dictat of interior ministries,
without applying any form of legislative process; and
- dictate to the Commission how to perform its independent task as guardian
of EC law.
Background
The EU right of free movement of persons also extends to citizens of Norway,
Iceland and Liechtenstein, because these states are parties to an agreement with
the EC called the ‘European Economic Area’ (EEA). (This explains why the UK
paper refers to ‘EEA nationals’, which is a term from British immigration law). The
right also extends to citizens of Switzerland.
Furthermore, the right extends to family members of EU citizens (and to the family
members of the citizens of the associated states mentioned above), regardless of
the nationality of the family members. So ‘third-country nationals’ can benefit
from the right, to the extent that they are family members of EU citizens who
move between different Member States.
But EU free movement law, including the family reunion rules, does not generally
apply to citizens who are not exercising free movement rights – ie it does not apply
2
to UK citizens residing in the UK. The principal exception to this is that EU free
movement law, including the family reunion rules, does apply to people who leave
their own Member State and come back – ie UK citizens who spend some time in
Ireland or France and then return to the UK.
The concern of JHA ministers about EU free movement law has until now focused
upon the EU Court of Justice judgment in a case called Metock, decided in July
2008. In that judgment, the Court ruled that third-country national family
members did not have to be legally resident in a Member State before they could
enjoy the family reunion rights established by EC free movement legislation. In
fact, the Court made it clear that third-country national family members of EU
citizens could enjoy free movement rights due to their family relationship with an
EU citizen even if those family members had been irregular (ie unauthorised or
‘illegal’) residents of a Member State before establishing, or in some cases
resuming, their family relationship with that EU citizen.
The Metock judgment expressly overturned the Court’s Akrich judgment of 2003, in
which the Court had appeared to suggest that there was a requirement of prior
lawful residence in a Member State in order for third-country national family
members of EU citizens to enjoy free movement rights. But the Akrich judgment
had in turn apparently implicitly overruled prior cases in which it had been
assumed, or even expressly stated by the Court of Justice, that there could be no
such requirement of prior lawful residence of a third-country national family
member of an EU citizen as a condition for enjoying free movement rights (see in
particular MRAX and Carpenter). So Metock was merely returning to the previous
status quo.
On the basis of the Akrich judgment, several Member States, most notably the UK,
Ireland, Denmark and the Netherlands, had introduced rules requiring prior lawful
residence of third-country national family members of an EU citizen in a Member
State before those persons could enjoy free movement rights. The obvious
implication of Metock is that those Member States will now have to rescind these
rules, and return to the more liberal rules which applied prior to the Akrich
judgment. Those Member States, apparently joined by others, are reluctant to do
this because of concerns about irregular immigration.
At the September JHA Council, the Metock case was discussed and JHA ministers
agreed to wait for a Commission report on the 2004 Directive on the free
movement of EU citizens and their family members. The Commission has
announced that this report will be released imminently, on December 10th. The
report will, among other things, address the question of what Member States can
do to stop ‘abuse’ of free movement rules, including ‘marriages of convenience’.
The 2004 Directive expressly allows Member States to address these issues,
although the case law of the Court of Justice (even in the Akrich judgment) takes a
very narrow view of the concept of ‘abuse’ of free movement law. In Akrich, the
Court of Justice said that there was not an abuse where the EU citizen was
genuinely exercising free movement rights in another Member State, and the family
relationship with the third-country national was genuine, even though the EU
citizen in that case had admittedly decided to move to another Member State only
in order to avoid the expulsion of her third-country national spouse under UK
immigration law.
It should be noted that, as the Court of Justice pointed out in its Metock judgment,
the 2004 free movement Directive does not establish any possibility for Member
3
States to insist on any requirement of prior lawful residence before third-country
national family members of EU citizens can rely on the EU free movement rules.
UK proposal for conclusions
The first draft conclusion by the UK states that the Member States ‘reiterate their
commitment to protecting this right [of free movement] from being misused as a
route for illegal immigration into the EU and will take forward cooperation to this
end’. This gives the impression that the judgment in Metock will simply be
circumvented or ignored by Member States. But Member States are obliged to
apply EC legislation as interpreted by the Court of Justice, and it is not possible to
alter the EC legislation on this issue without a proper legislative procedure – a
proposal from the Commission, qualified majority voting in the Council, and codecision
with the European Parliament.
The second draft conclusion states that ‘Member States will continue to take a
robust approach to those who break the laws of their host country by expelling
persons involved in’ various serious crimes. This issue is separate from the Metock
judgment, which dealt only with the issue of the status of third-country national
family members of EU citizens who were not lawfully resident in a Member State.
Rather this conclusion applies also to EU citizens and to all of their family members.
Although the EC legislation does provide for expulsion of individuals who ‘represent
a genuine, present and sufficiently serious threat affecting one of the fundamental
interests of society’, the draft conclusion ignores two key points. First of all, the
free movement Directive provides that ‘previous criminal convictions shall not in
themselves’ constitute grounds for expulsion, and that ‘justifications which are
isolated from the particulars of the case or that rely on considerations of general
prevention shall not be accepted’. Member States must also take into account
factors including the degree of integration of such persons on their territory.
These safeguards – which consolidate prior legislation dating from 1964, as
interpreted by the Court of Justice since the 1970s – are ignored by the draft
conclusion, which instead suggests an agreement to expel all persons convicted of
particular crimes automatically.
Secondly, the second draft conclusion ignores entirely the specific new protections
against expulsion provided for in the 2004 free movement directive for some groups
of EU citizens and their family members. Persons with a permanent residence right
(after residing in a Member State for over five years) can only be expelled ‘on
serious grounds of public policy and public security’, and persons who have been
resident for more than ten years, or who are minors, can only be expelled on
‘imperative grounds of public security’ (and not on grounds of public policy).
The third draft conclusion asserts that Member States:
“should also be able to consider that the cumulative damage caused by
continuous low-level offending can amount to a sufficiently serious threat
to public policyâ€
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