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

Post by Richard W » Sun Feb 28, 2016 12:44 pm

shnooks1 wrote:I understand now thank you for explaining. However, after re-reading this thread I think what liksah said makes more sense and I hope he/she is correct:
http://www.immigrationboards.com/search ... sf=msgonly

"who had no prior lawful residence
probably means:
were not lawfully resident at some point earlier"

The reason why I'm so confused is because I don't understand the reasoning of why I wouldn't share my husband's freedom of movement rights just because I never lived in the EU but what liksah pointed out makes perfect sense. If I was previously living in Europe illegally, then it would be understandable as to why I would not be entitled to any movement rights even though I am married to an EU citizen.
Does anyone else think this may just be a case of poor wording?
Unfortunately, this is incompatible with the UK statement (both parliamentary question and white paper) that a non-EU spouse's entry will be governed by the national laws of the first member state they enter. In particular, the spouse of a Frenchman will have no more right to come to the UK than the spouse of a Briton. Actually, it now seems that the former will have less right if the Frenchman does not have permanent residence in the UK.

Shnooks1, you wouldn't share your husband's freedom of movement rights because they are now being restricted to movement within the EEA+. It is still possible that once settled in the EEA, you may be able to enjoy those rights. On this point, the wording shown so far is extremely unclear. For example, you might be able to enter Italy with a view to settlement, and then promptly enter the UK under free movement. However, according to the words of the declaration, you would be permanently denied the rights.

Now, there may be technical work-arounds, but it seems that they will be difficult for those with prior unlawful residence. Failed or bogus asylum seekers are likely to be particularly hard hit.

mia777
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Re: New EU deal: Free-movement rights gone?

Post by mia777 » Sun Feb 28, 2016 5:06 pm

I've been reading through this thread... all very interesting stuff.

Everyone's talking about spouses... what do these new provisions mean for unmarried partners of EEA citizens? Perhaps there isn't a clearcut answer but opinions are welcome.

I got a masters degree in the UK and met an EEA citizen during that time. After my two year post-study visa, I applied using an EEA2 application which was granted and I'm halfway through the five years. I've got a business here now (i.e. a life) and while it's hard to imagine being thrown out or not being allowed back in, I'm trying to get an idea of the potential scenarios that could play out in the next year or two.

Thanks.

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

Post by giorgosa » Sun Feb 28, 2016 8:10 pm

In this page you'll be able to find an explanation of the proposed changes.

https://www.jcwi.org.uk/blog/2016/02/22 ... -migration

I keep this point: 'The changes as put forward are unlikely to impact EU citizens who can demonstrate that they entered into a relationship before moving to a host state, such as the UK.'

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

Post by nemerkh » Sun Feb 28, 2016 10:50 pm

Non-EU nationals who had no prior lawful residence in a Member State before marrying an EU citizen, or

- Where a marriage is entered into after an EEA citizen has established residence in the host Member State.



Phewwww.
So am a noneu was a student in latvia then we got married wih my Latvian wife and came to uk.
Should be fine thenright? As i was lawfully staying in latvia and we married there before coming to UK

shnooks1
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Re: New EU deal: Free-movement rights gone?

Post by shnooks1 » Sun Feb 28, 2016 10:54 pm

Thank you Richard. I wasn't thinking about that.
giorgosa wrote: I keep this point: 'The changes as put forward are unlikely to impact EU citizens who can demonstrate that they entered into a relationship before moving to a host state, such as the UK.'
I highly doubt they would bother giving new entries a chance when they could just honor resident card/eea applications which were in the process of being approved before the referendum. If they even do that. I just hope if anything happens the deal would be thrown out and no one would have to worry.

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

Post by tebee » Mon Feb 29, 2016 8:49 am

Richard W wrote:
tebee wrote:
Richard W wrote:For example, a Frenchman moving with his non-EU spouse spouse to the UK would have to come in on the points-based system, and an Englishman moving to France would need a work permit.
There are no changes to free movement for the EU spouse - it's the non-EU partner would have to comply with local laws.
I hope I've selected the part Tebee disputes.

I was specifically referring to moves from outside the EU, with the non-EU spouse never having resided in the EU. The point about the visas etc. is that they allow dependants to apply to accompany them at the offset. Otherwise, the EU spouses in these combinations need to reside in the host country on their own first, which indeed they would still be free to do by exercising their treaty rights.

......
What the Declaration says is
...... to 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. Accordingly, in such cases, the host Member State's immigration law will apply to
the third country national

It only refers to the third country national - nothing in there affects the EU citizens rights to live and work in any member state without a visa.

I can't honestly see what makes you think this will change, if they happen to be married to a non-EEA - indeed, such a change would gut free moment and would never be allowed to be sneaked in through the back door like this.
“I speak the truth not so much as I would, but as much as I dare: and I dare a little more as I grow older.

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

Post by tebee » Mon Feb 29, 2016 8:57 am

giorgosa wrote:In this page you'll be able to find an explanation of the proposed changes.

https://www.jcwi.org.uk/blog/2016/02/22 ... -migration

I keep this point: 'The changes as put forward are unlikely to impact EU citizens who can demonstrate that they entered into a relationship before moving to a host state, such as the UK.'
But surely the bit
Non-EU nationals who had no prior lawful residence in a Member State before marrying an EU citizen
Would exclude many such people ?
“I speak the truth not so much as I would, but as much as I dare: and I dare a little more as I grow older.

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

Post by giorgosa » Mon Feb 29, 2016 9:27 am

Well, I think we have to understand why they didn't choose this:
'Non-EU nationals who had no prior residence in a Member State before marrying an EU citizen'
but they chose this:
'Non-EU nationals who had no prior lawful residence in a Member State before marrying an EU citizen'

If there were going with the first then this would be a problem.

My interpretation is that Non-EU nationals having issues with UK immigration law in the past won't be able to get residence using EEA regulations once they are married to EU citizens. If you consider that all these come under a paragraph called 'Abuse of free movement' and ' Sham marriage', then I think that this won't impact EU nationals and families.

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

Post by nemerkh » Mon Feb 29, 2016 9:34 am

giorgosa wrote:Well, I think we have to understand why they didn't choose this:
'Non-EU nationals who had no prior residence in a Member State before marrying an EU citizen'
but they chose this:
'Non-EU nationals who had no prior lawful residence in a Member State before marrying an EU citizen'

If there were going with the first then this would be a problem.

My interpretation is that Non-EU nationals having issues with UK immigration law in the past won't be able to get residence using EEA regulations once they are married to EU citizens. If you consider that all these come under a paragraph called 'Abuse of free movement' and ' Sham marriage', then I think that this won't impact EU nationals and families.

Really hope youre right

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

Post by tebee » Mon Feb 29, 2016 9:42 am

Yes, but they did not say "already illegally resident " so the current wording also catches those who have never been resident - so if you go work in a country outside the EU, meet someone there, you can't automatically return with them.

My own theory is they have left the wording a little vague so all can read their own meaning into it and come to an agreement.

I think "legally resident" has a specific meaning in UK law and may not mean the same to other counties. My crystal ball foresees court cases of the meaning of these words unless they clarify them more.
“I speak the truth not so much as I would, but as much as I dare: and I dare a little more as I grow older.

shnooks1
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Re: New EU deal: Free-movement rights gone?

Post by shnooks1 » Mon Feb 29, 2016 11:14 am

Ignore my last post. My sleep deprived mind completely misread the context in the article you linked.
giorgosa wrote:Well, I think we have to understand why they didn't choose this:
'Non-EU nationals who had no prior residence in a Member State before marrying an EU citizen'
but they chose this:
'Non-EU nationals who had no prior lawful residence in a Member State before marrying an EU citizen'

If there were going with the first then this would be a problem.

My interpretation is that Non-EU nationals having issues with UK immigration law in the past won't be able to get residence using EEA regulations once they are married to EU citizens. If you consider that all these come under a paragraph called 'Abuse of free movement' and ' Sham marriage', then I think that this won't impact EU nationals and families.
I still have a good feeling about this. My hubby and I have been feeling very depressed about the uncertainty of our moving plans but this makes me feel a little better.
tebee wrote:My own theory is they have left the wording a little vague so all can read their own meaning into it and come to an agreement.
I think "legally resident" has a specific meaning in UK law and may not mean the same to other counties. My crystal ball foresees court cases of the meaning of these words unless they clarify them more.
I agree and I hope you're also right. Thank you both.

mia777
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Re: New EU deal: Free-movement rights gone?

Post by mia777 » Mon Feb 29, 2016 12:26 pm

From https://www.jcwi.org.uk/blog/2016/02/22 ... -migration:
However, they also agreed to adopt a proposal ‘complementing’ the Citizenship Directive 2004/39. This would exclude the following groups from free movement residency rights:

- Non-EU nationals who had no prior lawful residence in a Member State before marrying an EU citizen, or

- Where a marriage is entered into after an EEA citizen has established residence in the host Member State.
We met while I was a student and we're not married so this seems like this will affect me.

Questions I have:
  • Are there any timelines for these changes?
  • Does this impact family members that already have residence permits?
  • Could people excluded according to the above criteria be immediately required to leave or would it happen when an existing residence permit expires?

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

Post by giorgosa » Mon Feb 29, 2016 12:37 pm

Wording is not good and we can give various interpretations. I gave mine, I may be right, I may be wrong. Time will show. I am not a lawyer and this is just my opinion (and it is very unlikely that I'll be impacted even if they use UK immigration law as I fulfill language and income requirements).

But I find very difficult ECJ to support restrictions to all on the basis that they were not EU residents ever before. But I see as reasonable to support restrictions to non-EEA family members that were illegally in a member state and now they try to get residence through EU regulations.

Let's don't forget that in other agreements between UK and other countries (e.g. Ankara agreement between the UK and Turkey) there are same requirements. This is copied from Ankara agreement as ground for refusal: 'The applicant has breached immigration law whilst entering or remaining in the UK '. In other words if you are turkish and not lawfully in the UK, you can't stay under Ankara agreement. To our topic, if you are non-EEA and not lawfully in the UK, you can't stay under EU free movement.

mia777
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Re: New EU deal: Free-movement rights gone?

Post by mia777 » Mon Feb 29, 2016 1:21 pm

Of course people who were here illegally shouldn't be allowed to remain. It's hard to understand how an application was accepted in the first place when they were in the UK illegally. Likewise, sham marriages etc are abominable.

I'm trying to figure out if those in legitimate relationships, people who contribute to UK society and business, will be impacted, ie is the baby going to be thrown out with the bathwater?

The wording of the aforementioned links suggests that, yes, they will.

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

Post by manu_uk » Mon Feb 29, 2016 1:59 pm

To put a bright note on this...
I non eea family members need to comply with UK law, that doesn´t mean they are not allowed to live in the UK, it just means that the process to get a visa/permit will be different. Of course could be harder or have limitations (for example income minimum limit). Some people miss this.
Being positive, you can take advantage of the premium service to get the visa on the same day instead of wait 6 months....

Have a nice day!
M.

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

Post by Richard W » Mon Feb 29, 2016 5:47 pm

I've flattened the quote structure.
Richard W wrote:For example, a Frenchman moving with his non-EU spouse spouse to the UK would have to come in on the points-based system, and an Englishman moving to France would need a work permit.
tebee wrote:There are no changes to free movement for the EU spouse - it's the non-EU partner would have to comply with local laws.
Richard W wrote:I was specifically referring to moves from outside the EU, with the non-EU spouse never having resided in the EU. The point about the visas etc. is that they allow dependants to apply to accompany them at the offset. Otherwise, the EU spouses in these combinations need to reside in the host country on their own first, which indeed they would still be free to do by exercising their treaty rights.
tebee wrote: What the Declaration says is
...... to 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. Accordingly, in such cases, the host Member State's immigration law will apply to
the third country national
It only refers to the third country national - nothing in there affects the EU citizens rights to live and work in any member state without a visa.

Consider a Frenchman with an American wife moving from the USA, where they have lived for at least two years, to the UK. Now, as at present, he will be able to move without any visa. But what visa can his wife get in her capacity as his wife? She can't get a 'domestic' visa as a family member (specifically, spouse), for it will take her husband 5 years to become settled in the UK.

On the other hand, if he can get a points-based visa, she can get a visa as a dependant.

Actually, in this case, the practical solution may be for her to become French.

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

Post by tebee » Mon Feb 29, 2016 7:15 pm

@Richard W

Ah OK,I understand your logic now - I still don't agree with it though.

You are making the assumption that there will be no changes to UK law if these changes go through. As of now the ‘family of a settled person’ visa is not available to EEA citizens (apparently even if they have permanent residence ) . But it would be a simple matter to amend it to allow those EEA citizens to apply if the EEA route is closed. I assume it would then apply to both EEA citizen who have achieved permanent residence and those who have yet to as there is no effective difference between them.

If they don't do this, well then they have just killed free movement for a considerable number of people - it's anomalous situations like this that made them draught the free movement laws the way they are in the first place. I would hope that when(if) the new regulations are brought in, there will be some sort of regulation that insists governments must make some sort of provision for the newly restricted spouses.

The EEA route is going to have to remain open for those spouses who do qualify for free movement under the new regime, so the whole thing is going to get very messy. I wonder if some countries will just continue to issue article 10 cards to all comers, rather in the way some issue them to partners of their own citizens as there is nothing stop countries giving more rights than EU law demands?
“I speak the truth not so much as I would, but as much as I dare: and I dare a little more as I grow older.

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

Post by shnooks1 » Tue Mar 01, 2016 2:04 am

Richard W- I pmed you a question if don't mind answering.

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

Post by maomao » Tue Mar 01, 2016 3:25 pm

I wonder if my application u have sent in today at Durham EEA Team will be affected with this enormous changes we are getting in - out referendum thing ! I applied for pedant Residfnt based on my divoorced with my wife : just have some bit of doubt / uncertainty if by Jhne my application will still be considered .Hers is my timeline
Cohabitingas unmarried partner since 2010
Home office got our history since 2010
Proof of Cohabition 8 documents
married 02/ 2012
Got race 2013
Divorced patient ion started 25 feb 2015
Divorce final 2015 August
Sent in application today 1 Match 2016
My ex supported me with everything so far you could think of !bit couldn't send her National passport but Nationzl ID CARD WAS SENT . Her expired passport , bank statement joint bills , previous edit addres we once lived ,myp60s and p45s, tax return as self employment NI CLASS 2 contribution , self assessment , prevpuse tenancy agreement of my ex and present tenancy of me and her , and so many other documents in peices ! By the time the referendum ends to the time decision is made j would have got another 6 months added to me excercusing my right fir permantant resident !
Can anybody comment if the document sent based on our relation are enough and all opinions are welcome ! Fingers crossed ! Thank you guys

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

Post by ryuzaki » Tue Mar 01, 2016 4:12 pm

tebee wrote:If they don't do this, well then they have just killed free movement for a considerable number of people - it's anomalous situations like this that made them draught the free movement laws the way they are in the first place. I would hope that when(if) the new regulations are brought in, there will be some sort of regulation that insists governments must make some sort of provision for the newly restricted spouses.
I hope you are right, but I don't think you are. This is the Tory government, they want to keep immigrants out at all costs so they can hit their "tens of thousands" number. Even if the EU requires it, they won't do it and instead drag it out for years in the courts hoping that people give up and setting it up so they can blame the European courts.

It looks like the only option left will be:

1. Get married.
2. Move to another EEA country.
3. Get a residency visa of some kind for spouse.
4. Optionally return to the UK.

(3) is going to be the hard part. Do any other EEA countries have favourable rules on this? They could become very popular if they do.

The message here seems to be that if your family is from outside the EEA then forget it, you are not welcome and there is no reasonable way to legitimately obtain a visa.

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

Post by Shakey » Tue Mar 01, 2016 5:12 pm

ryuzaki wrote:
tebee wrote:If they don't do this, well then they have just killed free movement for a considerable number of people - it's anomalous situations like this that made them draught the free movement laws the way they are in the first place. I would hope that when(if) the new regulations are brought in, there will be some sort of regulation that insists governments must make some sort of provision for the newly restricted spouses.
I hope you are right, but I don't think you are. This is the Tory government, they want to keep immigrants out at all costs so they can hit their "tens of thousands" number. Even if the EU requires it, they won't do it and instead drag it out for years in the courts hoping that people give up and setting it up so they can blame the European courts.

It looks like the only option left will be:

1. Get married.
2. Move to another EEA country.
3. Get a residency visa of some kind for spouse.
4. Optionally return to the UK.

(3) is going to be the hard part. Do any other EEA countries have favourable rules on this? They could become very popular if they do.

The message here seems to be that if your family is from outside the EEA then forget it, you are not welcome and there is no reasonable way to legitimately obtain a visa.

The idea is to have UK spouse turn into UK/EU spouse visa - no discrimination. At the moment most people failing the financial requirement in the UK would probably pass it in Ireland which would move to an Ireland/EU spouse visa. Even putting the financial requirement aside the Irish system is much fairer as it requires 40,000 over the previous three years allowing for realities in peoples lives like pregnancy, temporary unemployment etc which the UK system does not. It will be interesting to see how fast the financial requirements are increased in Ireland and others if this legislation gets pushed through.

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

Post by Richard W » Tue Mar 01, 2016 10:08 pm

I've been asked what I meant by "you might be able to enter Italy with a view to settlement, and then promptly enter the UK under free movement"?

One can get an idea of the meaning of "who had no prior lawful residence in a Member State before marrying a Union citizen" by looking at the state of affairs back in early 2008, before the Metock ruling, when several countries had a requirement of prior lawful residence in a member state by looking at the post and reading for a few pages further by looking at a post in the thread on Directive 2004/38/EC. I get the impression that work-arounds were being found for the requirement of prior residence, which makes me worried that "before marrying a Union citizen" has been added to plug the loopholes.

In fact, take a look at the three questions asked by the Irish High Court in the case of Metock:

Q1. Does Directive 2004/38/EC permit a Member State to have a general requirement that a non-EU national spouse of a Union citizen must have been lawfully resident in another Member State prior to coming to the host Member State in order that he or she be entitled to benefit from the provisions of Directive 2004/38/EC?
A1. Metock - no. Declaration - yes!
Q2. Does Article 3(1) of Directive 2004/38/EC include within its scope of application a non-EU national who is:
– a spouse of a Union citizen who resides in the host Member State and satisfies a condition in Article 7(1)(a), (b) or (c) and
– is then residing in the host Member State with the Union citizen as his/her spouse
Q2 as understood by ECJ: Does the spouse of a Union citizen who has exercised his right of freedom of movement by becoming established in a Member State whose nationality he does not possess accompany or join that citizen within the meaning of Article 3(1) of Directive 2004/38, and consequently benefit from the provisions of that directive, irrespective of when and where the marriage took place and of the circumstances in which he entered the host Member State?
A2. Metock - yes. Declaration - no.
Q3. If the answer to the preceding question is in the negative does Article 3(1) of Directive 2004/38/EC include within its scope of application a non-EU national spouse of a Union citizen who is:
– a spouse of a Union citizen who resides in the host Member State and satisfies a condition in Article 7(1)(a), (b) or (c) and
– resides in the host Member State with the Union citizen as his/her spouse
– has entered the host Member State independently of the Union citizen and
– subsequently married the Union citizen in the host Member State?’
A3. Metock - N/A. Declaration - no!

The declaration seems to be a root and branch reversal of the judgement in Metock. In fact, it pushes things further back, for now, unlike the 2006 version of the Immigration (EEA Regulations) 2006, it looks as though visas for EEA family members will not only depend on the national conditions, but will also be subject to hefty fees.

Read in this context, the loss of rights only applies to the first member state entered. However, there is still a twist. It seems that if a non-EEA national moves to another member state to join a new partner, that move is governed by the new state's domestic laws.

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

Post by Obie » Tue Mar 01, 2016 10:16 pm

I think this speculations are wholly unfounded.

These changes are proposal which has to go through various stages of legal process. It will be inconsistent with recital 5 of Directive 2004/38EC.

The directive will have to be repealed as they are not even consistent with the directive .

If family member are not allowed to enter then it will mark the end of what the court has consistently described as Freemovement .
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Re: New EU deal: Free-movement rights gone?

Post by shnooks1 » Tue Mar 01, 2016 10:36 pm

In the thread you linked:

"Legally resident includes visitors. Get a visitor visa for some part of the EU for her then apply for a residence permit when she is in Denmark.
See http://www.nyidanmark.dk/resources.ashx ... 45_eng.pdf
Specifically 2 and 6.
See the following link for more examples from UK and Irish legislation about family members of EU citizens being resident for even short periods of time.... http://eumovement.wordpress.com/2007/06 ... -question/"

This would still apply under the new rules?

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

Post by Richard W » Tue Mar 01, 2016 11:06 pm

I think so. However, you may be snookered by the implementation of 'before marrying a Union citizen'.

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