Post
by AngieD » Sat Dec 07, 2013 7:03 pm
I have today spoken to someone, who has spoken to Your Europe Advice Team at length today (yes I know this is second hand) and according to them the changes to regulation 9 are because of the Guidance issued in 2009 and in particular 4.3
"4.3. Other forms of abuse
Abuse could also occur when EU citizens, unable to be joined by their third country family members in their Member State of origin because of the application of national immigration rules preventing it, move to another Member State with the sole purpose to evade, upon returning to their home Member State, the national law that frustrated their family reunification efforts, invoking their rights under Community law.
The defining characteristics of the line between genuine and abusive use of Community law should be based on the assessment of whether the exercise of Community rights in a Member State from which the EU citizens and their family members return was genuine and effective . In such case, EU citizens and their families are protected by Community law on free movement of persons. This assessment can only be made on a case-by-case basis. If, in a concrete case of return, the use of Community rights was genuine and effective, the Member State of origin should not inquire into the personal motives that triggered the previous move.
When necessary, Member States may define a set of indicative criteria to assess whether residence in the host Member State was genuine and effective . National authorities may in particular take into account the following factors:
- the circumstances under which the EU citizen concerned moved to the host Member State (previous unsuccessful attempts to acquire residence for a third country spouse under national law, job offer in the host Member State, capacity in which the EU citizen resides in the host Member State) ;
- degree of effectiveness and genuineness of residence in the host Member State (envisaged and actual residence in the host Member State, efforts made to establish in the host Member State, including national registration formalities and securing accommodation, enrolling children at an educational establishment) ;
- circumstances under which the EU citizen concerned moved back home (return immediately after marrying a third country national in another Member State) .
The above criteria should be considered possible triggers for investigation, without any automatic inferences from results or subsequent investigations. In assessing whether the exercise of the right to move and reside freely in another Member State of the EU was genuine and effective, national authorities may not rely on a sole attribute but must pay due attention to all the circumstances of the individual case. They must assess the conduct of persons concerned in the light of the objectives pursued by Community law and act on the basis of objective evidence[65].
J. returns home from another Member State with S., his third country spouse. S. unsuccessfuly attempted twice to acquire residence in J.’s Member State. J. continued to work home during his alleged residence in another Member State.
The authorities contact the authorities of the host Member State and find out that J . returned home only after three weeks. The couple stayed in a tourist hotel and paid for the three weeks of accommodation in advance. Taking all of this into account, J. and S. do not benefit from the provisions of the Directive.
It cannot be inferred that the residence in the host Member State is not genuine and effective only because an EU citizen maintains some ties to the home Member State, all the more if his status in the host country is unstable (e.g. a work contract of limited duration) . The mere fact that a person consciously places himself in a situation conferring a right does not in itself constitute a sufficient basis for assuming that there is abuse[66].
All relevant considerations set out above on investigation, material and procedural safeguards, co-operation between Member States relating to marriages of convenience apply mutatis mutants ."
They have only had since 2009 to look at this!
