I don't think OR is AND. There have been drafts of this decision proposed through Donald Tusk's letters prior to the final draft that we have seen. However the line of reasoning you are going for (even if it is OR) does make a little more sense.
Imagine a person who has tried to enter the EU via a regular Schengen visa in the past and been denied a visa (probably based on prior overstays or some information in the SIS). Alternately, imagine a person who has entered the EU but then overstayed and thus has 'illegal' status.
Both of the above people could gain free movement rights and regularise their situation in the EU by getting married to an EU citizen. This is exactly the kind of abuse that I would imagine everyone is angry about and the kind of abuse that people and policymakers want to put a stop to.
I know that for all this time we have been assuming that lawfully resident before marriage means that the person should have prior EU residence. But does this make any sense?
What has prior EU residence of the non-EU spouse got to do with anything? What does this even prove? It proves nothing as is explained by several posters earlier - this kind of thing could be circumvented easily by going through the 'student' route or some other similar route.
Furthermore, this kind of measure would penalize couples like an EU citizen living the US, getting married there, and then not being able to move back to the EU. Why should this be the case? Isn't it MUCH more likely that marriages of convenience happen when:
- A french citizen is living in Barcelona
- A colombian has received orders for expulsion
- He asks his french friend to marry him and do him a solid?
To me what makes most sense is:
- Restrict free movement rights for people who are either using marriage as a means to gain entry (eg. those who have been previously denied visas based on prior overstays or violations..)
- Restrict free movement for those who have tried to regularise their situations (in-country) by getting married (these could either be real marriages or marriages of convenience, the chance of being marriages of convenience is also much higher in these cases)
Apply national immigration law. National immigration law often takes previous illegal stays in any EU country (and even sometimes in other countries like the US/CA/Australia/NZ) quite seriously.
This makes MUCH more sense than penalizing *all* non-EU spouses, something which I'm sure policymakers are aware the CJEU is likely to throw out - if that comes up.
Does the above line of reasoning make sense to anyone else?
I'm pretty confident in my interpretation above and I'm quite sure that the draft laws amendments regarding this will address the issue as such. It is very difficult to know what exactly the background of these statements is:
But here is what I think the above statements mean (through examples):
The Commission intends to adopt a proposal to complement Directive 2004/38 on free movement of Union citizens in order 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
If you are illegal in the UK, you cannot marry a Polish citizen and continue living in the UK under EU free movement laws. You need to apply under UK law (this will probably result in a denial of residence).
If you are legally currently in Spain, you cannot marry a French citizen (who is already established in Spain) and continue to stay in Spain under EU free movement rights. You need to go through the national re-unification procedure.
What do you think about this interpretation?