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New EU deal: Free-movement rights gone?

This is the area of this board to discuss the referendum taking place in the UK on 23rd June 2016. Also to discuss the ramifications of the EU-UK deal.

Differing views will be respected. Rudeness to other members will not be welcome.

Moderators: Casa, push, JAJ, ca.funke, Amber, zimba, vinny, Obie, EUsmileWEallsmile, batleykhan, meself2, geriatrix, John, ChetanOjha, archigabe, Administrator

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nemerkh
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Re: New EU deal: Free-movement rights gone?

Post by nemerkh » Sun Feb 21, 2016 11:07 am

http://www.theguardian.com/uk-news/2016 ... t-eu-rules


This article about the new restrictions for noneu born seems to be specific to noneu citizens who had an unlawful residence in an eu state / surrindur singh cases. Doesnt seem to apply for no eu citizens who resided in another eu state then got married then moved to the uk. Or was i reading it wrongly??

juditali
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Re: New EU deal: Free-movement rights gone?

Post by juditali » Sun Feb 21, 2016 11:24 am

i am not legal adviser or solicitor but i have few friends who owns their own legal firms.

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)

but they are likely going to demolished the surinder Singh (S S) route as people who marry and get resident permit in different EU countries and they can come straight away to UK without any visa . so these are the possible restrictions on non eu family members of EU national and off course to take action against shame marriages!!!!!!!


if they do put restrictions on non eu family member of eu citizen the European Supreme court will thow it out. as in UK EU deal there is no safe guard against the EU supreme court and any other court of justice.

Rfrence Steve Peers – University of Essex
Steve Peers is Professor of Law at the University of Essex
http://blogs.lse.ac.uk/europpblog/2016/ ... -it-means/


best wishes

Richard W
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Re: New EU deal: Free-movement rights gone?

Post by Richard W » Sun Feb 21, 2016 12:21 pm

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?
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.)

Richard W
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Re: New EU deal: Free-movement rights gone?

Post by Richard W » Sun Feb 21, 2016 12:42 pm

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
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: 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.
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
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: 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.
Yes.
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?
Correct. The one prediction I've seen is around the new year, give or take a few months.

ryuzaki
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Re: New EU deal: Free-movement rights gone?

Post by ryuzaki » Sun Feb 21, 2016 1:08 pm

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's needed because of the ridiculous English language requirement.

Richard W
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Re: New EU deal: Free-movement rights gone?

Post by Richard W » Sun Feb 21, 2016 1:13 pm

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)
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.

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Re: New EU deal: Free-movement rights gone?

Post by Wanderer » Sun Feb 21, 2016 1:26 pm

ryuzaki wrote:
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's needed because of the ridiculous English language requirement.
What's ridiculous about it?
An chéad stad eile Stáisiún Uí Chonghaile....

ryuzaki
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Re: New EU deal: Free-movement rights gone?

Post by ryuzaki » Sun Feb 21, 2016 1:35 pm

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.

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Re: New EU deal: Free-movement rights gone?

Post by Richard W » Sun Feb 21, 2016 1:39 pm

Richard W wrote:
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
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.)
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!

Millerco
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Re: New EU deal: Free-movement rights gone?

Post by Millerco » Sun Feb 21, 2016 1:55 pm

The part of the agreement that worries me is the new guidelines on sham marriages. UK, EU law and all EU directive make it clear that a sham marriage is one that was entered for immigration purposes. But the agreement wording says the concept shall cover "maintaining" a marriage. So if a truly legitimate couple who lived as a married couple separate but don't divorce before permanent residency, is the non-EEA now at risk of losing all of their rights despite all Home Office and EU guidance saying otherwise because they will now be considered a sham marriage ??? The wording is so vague that it could be interpreted by Home Office in some very strange ways.

Anyone have any thoughts on this.

the3rdman
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Re: New EU deal: Free-movement rights gone?

Post by the3rdman » Sun Feb 21, 2016 4:07 pm

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.

nemerkh
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Re: New EU deal: Free-movement rights gone?

Post by nemerkh » Sun Feb 21, 2016 4:36 pm

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?

the3rdman
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Re: New EU deal: Free-movement rights gone?

Post by the3rdman » Sun Feb 21, 2016 4:53 pm

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.

nemerkh
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Re: New EU deal: Free-movement rights gone?

Post by nemerkh » Sun Feb 21, 2016 4:57 pm

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

secret.simon
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Re: New EU deal: Free-movement rights gone?

Post by secret.simon » Sun Feb 21, 2016 4:59 pm

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.
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.

secret.simon
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Re: New EU deal: Free-movement rights gone?

Post by secret.simon » Sun Feb 21, 2016 5:03 pm

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".
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.

the3rdman
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Re: New EU deal: Free-movement rights gone?

Post by the3rdman » Sun Feb 21, 2016 5:04 pm

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.

the3rdman
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Re: New EU deal: Free-movement rights gone?

Post by the3rdman » Sun Feb 21, 2016 5:12 pm

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.

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Re: New EU deal: Free-movement rights gone?

Post by crunchycracker » Sun Feb 21, 2016 5:23 pm

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.

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Re: New EU deal: Free-movement rights gone?

Post by Richard W » Sun Feb 21, 2016 5:26 pm

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.

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Re: New EU deal: Free-movement rights gone?

Post by Richard W » Sun Feb 21, 2016 5:40 pm

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!

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Re: New EU deal: Free-movement rights gone?

Post by Richard W » Sun Feb 21, 2016 5:55 pm

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.

secret.simon
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Re: New EU deal: Free-movement rights gone?

Post by secret.simon » Sun Feb 21, 2016 6:41 pm

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.
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.

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Re: New EU deal: Free-movement rights gone?

Post by the3rdman » Sun Feb 21, 2016 6:51 pm

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?

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Re: New EU deal: Free-movement rights gone?

Post by crunchycracker » Sun Feb 21, 2016 6:58 pm

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.

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