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.