New EU deal: Free-movement rights gone?

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.

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?

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.

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.

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.

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.

@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?

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

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

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.

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.

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.

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 .

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?

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

Obie wrote: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 .

It's quite clear that this 'complement' to 2004/38/EC will amend it. I'm not sure though that the recital 5 is a problem. One could just redefine 'family member' to exclude people not resident in the EU. Also, what about Recital 18?

In order to be a genuine vehicle for integration into the society of the host Member State in which the Union citizen resides, the right of permanent residence, once obtained, should not be subject to any conditions.

How is that consistent with permanent residence being lost after 2 years absence? (Article 16(4))

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

That would be the dumbest thing ever. Marriage before both spouses take up residence together is the complete opposite of marriage of convenience. Thank you for answering my questions. I understand what you're saying now.

Richard W wrote:

Obie wrote: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 .

It's quite clear that this 'complement' to 2004/38/EC will amend it. I'm not sure though that the recital 5 is a problem. One could just redefine 'family member' to exclude people not resident in the EU. Also, what about Recital 18?

In order to be a genuine vehicle for integration into the society of the host Member State in which the Union citizen resides, the right of permanent residence, once obtained, should not be subject to any conditions.

How is that consistent with permanent residence being lost after 2 years absence? (Article 16(4))

I have a totally different view from yours. I don't interprete complement and amend or repeal to be the same thing in law .

In any event the lawfulness of this proposal is questionable, and it is unlikely whether it will come to law at all as it is dependent on many things.

I am beginning to think what the point of this thread is.

It is only leading to lots of unnecessary anxiety on members.

The views expressed are not very legally sound.

This isn't just about marriages of convenience. It's also about removing the anomaly that the French have more right to bring their families to the UK than do the British. The hardest hit are those where a British spouse wants to bring his or especially her spouse and children to the UK. The anomaly is being resolved by levelling up the misery.

While it's interesting to see all the different opinions on the subject matter at hand , I feel like this is a topic for unintentional fear and EU hate mongering .(If that's a thing.)

Maybe its time to lock the thread ?