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Anti-discrimation rules suggest no. 1 (though I'm not sure how the German would get his livret de famille). However, I'm not sure, as Frenchmen can't bring their fiancées to the UK. No. 2 might be tricky - I'm not sure that EU nationals can get French work permits! (For comparison, UK citizens can't get visas to come to the UK.)liksah wrote:German national with Chinese spouse (who never lived in the EU) wants to move to France. Now, France should apply national legislation. Which national legislation? The laws that they have to reunify are:
1. French citizens with their spouses?
2. Non-EU citizens with their non-EU spouses? (like Indian-Indian couples working in France)
3. EU citizens with their non-EU spouses? (the earlier used transposition of Directive 2004/38/EC)
So which one should France pick? I suppose the outcome the UK is hoping for is ... changing 3. to be more like 2. or 1. ? But which one?
It's not clear whether lapsed residence will count. If you replace 'is currently not living' by 'who has never lived', the answer is 'correct', except that there may be some fuzziness between EU and EEA + Switzerland. As to residence in Greenland while it was in the EU...crunchycracker wrote: 1) if a EU national currently living in the UK marries a non-EU citizen that is currently not living in the UK/ EU, the non-EU citizen will not be able to move to the UK based on the fact that the EU national is now in the UK exercising his treaty rights
Correct. However, they can move together to an EU country where the EU national has never lived.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
Wrong, assuming the non-EU spouse was lawfully resident in the EU national's home country. This is the prototypical freedom of movement case, allowing an EU national and his family to move around. (The prototype ignores how the non-EU spouse got there in the first place.)crunchycracker wrote: 3) If a EU national living in his home-country marries a non-EU spouse in the EU national's home country, then the EU national won't be able to bring his non-EU spouse to the UK because the non-EU spouse do not have prior lawful residence in the UK
Yes.crunchycracker wrote: 4) It also says in the draft that the non-EU spouse will be subject to the host countries' immigration laws. Does that mean that in order for EU citizens to bring their non-EU spouse to the UK, the EU citizen will be subject to the same immigration laws as per UK citizens, i.e. minimum income threshold etc.
Correct. The one prediction I've seen is around the new year, give or take a few months.crunchycracker wrote: Also if UK votes to stay in the EU, when will these new regulations be put into practice? It says in the draft that the proposal will be submitted - does that mean that it will have to pass through the EU parliament before these changes will happen? Meaning that unlike benefits to EU citizens, the amendment free-movement rights will not happen overnight once UK votes to leave (unlike benefits/ welfare payments that will be in effect UK votes to stay in the EU) but will be subject to it passing through the EU parliament and the ECJ before it can materialise?
It's needed because of the ridiculous English language requirement.mkhan2525 wrote:If the requirement is abolished or reduced to meet the requirement of the minimum wage then HO may not implement the changes on SS route since there would be no need to follow this route to bring over a spouse.
A person settled in the UK does not have an unconditional right to bring his non-EU children or spouse to the UK. Non-British EU citizens are currently privileged in this respect.juditali wrote:according to their point of view they cannot totally scrap EU family member rights regardless the nationality as its against EU human right and UK human right as well . like they have to give resident permit to the direct family member (spouse, husband , wife , children ) of legal person in this country (with legal status e.g EU Citizen)
What's ridiculous about it?ryuzaki wrote:It's needed because of the ridiculous English language requirement.mkhan2525 wrote:If the requirement is abolished or reduced to meet the requirement of the minimum wage then HO may not implement the changes on SS route since there would be no need to follow this route to bring over a spouse.
It is supposed to ensure integration, but if that were the case it would be a requirement to integrate.Wanderer wrote:What's ridiculous about it?
Note that this assume that the marriage is the non-EU national's first marriage. It is possible that a previous marriage to an EU national may have disqualified said non-EU spouse. However, whether that previous marriage actually disqualifies will depend on the precise wording of the directive and its transpositions into national law. The meaning of the second disqualifying condition is dependent on the difference between "the host state" and "a host state"! This could cause fun translating the directive into languages without articles!Richard W wrote:Wrong, assuming the non-EU spouse was lawfully resident in the EU national's home country. This is the prototypical freedom of movement case, allowing an EU national and his family to move around. (The prototype ignores how the non-EU spouse got there in the first place.)crunchycracker wrote: 3) If a EU national living in his home-country marries a non-EU spouse in the EU national's home country, then the EU national won't be able to bring his non-EU spouse to the UK because the non-EU spouse do not have prior lawful residence 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.Richard W wrote:crunchycracker wrote:Correct. However, they can move together to an EU country where the EU national has never lived.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
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.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.
The short answer is "Nobody knows", not even the politicians, diplomats or lawyers. It is a "known unknown".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
My apologies; I didn't intend to assume. As I stated, no one knows for sure.secret.simon wrote: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.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.
They are completely different in character. Do not assume that the same rules apply.
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.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.
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: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.Richard W wrote:Correct. However, they can move together to an EU country where the EU national has never lived.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
So your wife had prior legal residence before you married. You escape the first clause.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,
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!the3rdman wrote: and my paperwork for Italian citizenship finalized in the Autumn.
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.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.
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?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.
Richard W wrote:That's not true; they don't even have to be physically present in the same country when they marry!
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.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.
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: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!