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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, Amber, archigabe, batleykhan, ca.funke, ChetanOjha, EUsmileWEallsmile, JAJ, John, Obie, push, geriatrix, vinny, Zimba, Administrator

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

Post by Obie » Wed Mar 02, 2016 11:17 pm

I think i find it quite odd and at the higher spectrum of absurdity,outrageous even, for a contributor to dictate how moderators should undertake their functions in moderating the forum.

No one is perfect or learned than anyone else, we are all humbly seeking to carry out our respective duties with the utmost professionalism.

One of the thing I appreciate about the privileged of being a member of the moderating team, is that we are group of individuals who have the utmost respect for each other, and respect each others judgement or views, even though we don't normally agree with them.

If myself or anyone takes a decision to close this tread, we will all appreciate that it was for a justified reason within the margin of our discretion, and there is no precedent where we have overturned each other's view.

You can speculate from beginning to end, how we undertake our function, and I have no time and intention of spelling it out.

I have considered, as any moderators will , that it is getting to the point where this thread is serving no justified purpose, and therefore it may be down to myself or another of my colleague to decide that this thread must be temporary or permanently closed.

This thread has generated lots of complaint and anxiety, and it will be perfectly within our right to lock it. I don't think it will be necessary or appropriate to obtain the views of any contributors before doing so.

I will not be closing it because the views expressed are not ones i like, far from it. I have formed my legal view on the EU deal, and nothing anyone will say will change it either way.

My concern is about many posters who are so anxious by the content of this thread, that they may not be able to sleep at night. I think that lots of the contents are inaccurate, I therefore have a responsibility to lock it. It will be a dereliction of duties if I did not do so.

Therefore I will appreciate if some contributors show respect to moderators and the contribution they make to the running of the forum rather than insultingly dictating to them how to undertake their duties.
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Re: New EU deal: Free-movement rights gone?

Post by Richard W » Wed Mar 02, 2016 11:46 pm

Richard W wrote:I still think that reversing Metock is the best explanation of the declared proposed change, but the effects will be more far-reaching, especially with regard to fees...
I'm now sure of it. The Danish prime minister, Lars Løkke Rasmussen, is quoted in a Danish article The Utopia of pre-Metock? as saying of the agreement (Google translation):
We get Metock ruling rolled back. Now we roll the legal situation back to what it was before the Metock judgment was rendered.
So, what does prior legal residence mean? The best example I have found of its use is in Regulation 2 of Irish S.I. 656 of 2006: European Communities (Free Movement of Persons) (No. 2) Regulations 2006:
These Regulations shall not apply to a family member unless the family member is lawfully resident in another Member State and is
(a) seeking to enter the State in the company of a Union citizen in respect of whom he or she is a family member, or
(b) seeking to join a Union citizen, in respect of whom he or she is a family member, who is lawfully present in the State
That's a nice example of demanding 'prior lawful residence', and corresponds roughly to the first part of the declared proposal. It's more restrictive than the corresponding British regulations from 2006, which had a loophole if one could reach a British port or border post.

I have seen a claim that for a family member, 'lawful presence' implied 'lawful residence'; it's the only definition I could find.

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

Post by secret.simon » Thu Mar 03, 2016 12:34 am

Obie wrote:I think i find it quite odd and at the higher spectrum of absurdity,outrageous even, for a contributor to dictate how moderators should undertake their functions in moderating the forum.
Hyperbole has always been your strong point.

In contrast to you, I think that even mere contributors can call moderators to order if the moderator is intemperate in his language or demeanour. A school prefect is no more privileged than a normal student when it comes to conduct. Indeed, he should be held to a higher standard. And most assuredly, he should not be the classroom bully (this is an illustrative example and not a reference to any moderator).

Moderators are not Eurocrats whose diktat must be unquestionably followed. They should be open to reasoning on their role as moderators, no matter what their opinions on a specific topic are.
Obie wrote:I have formed my legal view on the EU deal, and nothing anyone will say will change it either way.
You had made that abundantly way before this post. And you are welcome to hold your opinion. My objection is to the language used to describe views that do not entirely accord with your own. It behoves all moderators to set an example by using temperate and dispassionate language, no matter how strongly one disagrees with the subject-matter.
Obie wrote:it will be perfectly within our right to lock it.
I do not doubt that the moderators have the right to lock the thread. I question whether it is right to do so in the circumstances of this thread. There is not much concrete paperwork to refer to and the contributors are trying to make the most of press statements and such like. To lock such threads only suggests that this forum does not welcome dialogue and discussion on a topic that is at the present point in time by its very nature entirely speculative.
Obie wrote:I think that lots of the contents are inaccurate,
I would agree with you if you were to be concerned about inaccurate facts (things that can be empirically and independently ascertained, such as the text of a law or a court judgement or the contents of a container). It is quite easy and straightforward to ascertain whether such fact is accurate or not and take action on that.

Opinion (such as the meaning of a law or judgement or whether the glass is half-full or half empty) on the other hand, can not be inaccurate by their very nature. They can not be independently and empirically verified. They are a personal judgement and one could argue whether an opinion is logical or not, but not whether an opinion is accurate or not. There is no such thing as an inaccurate opinion.

Most of the discussion on this thread (as also of these forums) has revolved around opinions of the meanings of developments in the UK-EU deal. We do not have many facts to go on. That ought not to preclude us from having a discussion about it.

Anxiety is not grounds for shutting down discussion.
Obie wrote:Therefore I will appreciate if some contributors show respect to moderators and the contribution they make to the running of the forum rather than insultingly dictating to them how to undertake their duties.
I have great respect for the moderators when they stick to facts or express their opinion as contributors without letting their opinions interfere with the running of the forums. As you have said many times, we are all learning here. I for one am here purely to learn and to give back. Part of learning comes from discussing possibilities that are unpopular but possible. I do not think that they should be shut down just because they may induce anxiety.
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.

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

Post by Obie » Thu Mar 03, 2016 1:08 am

I am not using hyperbole, your conduct is frankly speaking one of outrage. You are not making a suggestion. You are asking my fellow moderators to question my judgement and to vote on in , in the so called moderator college you mentioned. I must say I have never heard of it, but I will not give that view the time of the day.

I have been a moderator for several years, before you dreamt of joining the forum, and myself and my colleagues have worked very well and respected each others view. There has been no discord, and I don't think one will exist .

If you have a problem with any of us, I am sure you have a choice.

I have limited time to argue with you. It is clear you have some problems with me for reason known to you alone.

I don't thrive on your approval, my main aspiration is for the forum to be runned smoothly, and to ensure that inaccurate assertions are not masqueraded as legal provision and view, which are likely to cause anxiety.

Under International treaties, the UK will have to apply EU law to all those who resided in the UK, before it abandon the treaty, so the whole idea of this thread is a complete Baloney.

UK citizens in other countries will be protected, and UK citizens in other countries will be protected.

The question is the position with people who wish to move afterwards.




I have had a very long day, and i will rather spend the limited time I have contributing positively to people's query that
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Re: New EU deal: Free-movement rights gone?

Post by Richard W » Thu Mar 03, 2016 1:41 am

Obie wrote:Under International treaties, the UK will have to apply EU law to all those who resided in the UK, before it abandon the treaty, so the whole idea of this thread is a complete Baloney.

UK citizens in other countries will be protected, and UK citizens in other countries will be protected.

The question is the position with people who wish to move afterwards.
Most of the discussion has been about the changes in EU law that will occur after the referendum. What happens if the UK leaves the EEA probably belongs in the thread PR after Brexit. The title of the thread could have been 'New EU deal: Will Free-movement rights be gone?', but that is unnecessarily long. I suppose some non-native speakers may be confused by the use of a present tense to refer to the future.

As you've said, it should be business as usual until the referendum. Then, if the vote is to remain in the EU, I believe ECOs and IOs will act upon the clarifications - unless they start acting on them beforehand. I wouldn't be surprised if the clarifications were issued regardless of the vote. The biggest effects seem likely to come from the proposed legal changes, though some suspect they will simply be thrown out by the ECJ, if not by the European Parliament.

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

Post by tebee » Thu Mar 03, 2016 7:17 am

Richard W wrote:.................

As you've said, it should be business as usual until the referendum. Then, if the vote is to remain in the EU, I believe ECOs and IOs will act upon the clarifications - unless they start acting on them beforehand. I wouldn't be surprised if the clarifications were issued regardless of the vote. The biggest effects seem likely to come from the proposed legal changes, though some suspect they will simply be thrown out by the ECJ, if not by the European Parliament.
They can't start acting on the clarifications until those clarifications are given some force of law - they may wish to do so, but I'm sure any attempt to use them would be struck down by the courts.

I'm not sure clarifications is even the right term - clarification of the law is the job of the courts, not the primary law makers.

The documents say " The Commission intends to adopt a proposal to complement Directive 2004/38......" - note the "intends to adopt" bit which means they have to do something to implement this. New laws don't just appear out of the firmament as if by magic just because someone wants them.

Can anyone explain to me what exactly "a proposal to complement " is in legal terms ? Or is this just another bit of vague wording that means we are going to have to think how to do this later?
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Re: New EU deal: Free-movement rights gone?

Post by ohara » Thu Mar 03, 2016 8:35 am

I think vague is certainly an apt word to describe the entire situation of what the state of the UK will be in after an exit vote. At least until the government and EU set out some solid plans.

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

Post by bongwozzer » Thu Mar 03, 2016 1:23 pm

shnooks1 wrote:I'm in the same boat as you. I'm a non-EU with EU husband, both of us living outside the EU and planning to move to Ireland this summer with no intention of moving to the UK either.
Short answer: Nobody knows.
My husband and I were thinking of leaving earlier, but we decided not to risk it since we don't have a flat yet and may not be able to apply for a RC in time. Also no one even knows what will happen to those who have pending applications- if they will be allowed to stay or they will not be granted. I've been stressing over all the "what ifs", but all we can do is wait till June and see what happens.
Yes, it is a risk to move sooner and of course that only applies to those that are in a position to relocate inside of a couple of months or so.

I know this is easy to say - but we shouldn't stress about those things we have no control over. Of course, that doesn't mean we can't be mighty pissed about the whole issue :x

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

Post by bongwozzer » Thu Mar 03, 2016 1:38 pm

Richard W wrote:
bongwozzer wrote:So I'm UK citizen (but living outside the EU). I have a non-EU spouse and step-daughter. We were planning a move next year to Spain under free-movement.../quote]

Have you studied the Spanish 'domestic' rules on immigration? From what little I can find, which may be 2 years out of date, it seems to me that they would not cause you any trouble if you were treated the same as a Spaniard or as a resident foreigner. In particular, it seems that stepchildren under 18 are allowed in, unlike the British rules, which require sole responsibility.

I think, therefore, that the worst that could happen is that you would be moved from the EEA route to the Spanish route to settlement.

Have you set up plans for a supply of fresh (< 90 days old when used) marriage certificates and for legalising them? People going to Spain have had a lot of problems with non-EU marriage certificates. There may be some helpful information via foreign marriage recognition. The British embassy in Bangkok has been forced to print letters for people to give to the Spanish consulate there explaining that the British Government does not validate foreign marriages.
Thanks Richard. I did have a look through the Spanish Ministry for Work and Social Security website for Foreigners - but no, I'm not aware of the rules you mentioned. I know they made some significant changes in 2012 or thereabouts. Do you have a reference or link I can study?

I do have a marriage certificate with Apostille and this has been good for UK and Schengen Family visit visas so far, but 'belt and braces' dictates I'll get a further certified copy and have Apostille applied to that - just have to get the timing right inside the 3 months rule.

Thanks also for the note about the British Embassy letter - I'll follow that up as well.

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

Post by yoshi_jp » Thu Mar 03, 2016 1:45 pm

I've dumped this on the other thread:

Vienna Convention on the law of treaties, 1969
Article 69 - Consequences of the invalidity, termination or suspension of the operation of a treaty
"(b) Acts performed in good faith before the invalidity was invoked are not rendered unlawful by reason only of the invalidity of the treaty."
Article 70 - Consequences of the termination of a treaty
1. Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present Convention:
(a) Releases the parties from any obligation further to perform the treaty;
(b) Does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination

People who will have attained the right of permanent residence prior to the effective date of Britain's exit have nothing to worry about.
--

Then, what isn't quite clear is the status of a person who will not complete the qualifying 5-year period by the date of secession. Will the "PR" remain available? If not, are they going to be obliged to exercise the treaty rights permanently as long as they remain here? Will the UK government amend the immigration rules and summarily give them ILR/NTL as a transitional arrangement?

Most of our Polish, Slovak and Lithuanian neighbours haven't got any sort of UK residence card - PR or not, and they haven't even got any passports. Most have been here with their EU ID cards. If the UK departs, decides to apply a transitional arrangement and let them simply continue living here, I guess practicality, if not legality, will force them to apply for a passport stamp, vignette or BRP, because otherwise they won't be able to come back into the UK after visiting Katowice, Bratislava or Kaunas on holiday.

Another minefield is the British citizenship of their children. A lot of them are, theoretically, British citizens by birth in the UK, but their parents hadn't acquired a "Document Certifying Permanent Residence" prior to their births (nor do they know such item is available) and quite frankly have no idea about the relevant rules. I suppose Form NS will be very popular for the coming decades.

I can already visualise mountains of legacy cases at the UKVI and HMPO.

I don't think the sky will fall. I don't really believe the predictions of doom by the same lot who predicted in the past that refusing the Euro would be a disaster, but I suppose it will be quite a bit of a roller-coaster ride for some years for some people.

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

Post by Obie » Thu Mar 03, 2016 2:36 pm

The impression I get from this thread is the wrongful assumption that people in the UK who benefit from the treat in anyway will be affected. That is wrong .

It is this view and the effect it is having on people that troubles me.

Some people have alluded that parliament could legislate even when article 50 is in operation..

In all probability , the people who will be affected are those entering the UK in the event of Article 50 , after 2 years period.
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Re: New EU deal: Free-movement rights gone?

Post by secret.simon » Thu Mar 03, 2016 5:03 pm

HEALTH WARNING: Anxiety provoking post below-people with thin skins please avoid (this forum's equivalent of NSFW/18+ only)

This is a digression from the EU discussion and is a mind-numbingly boring post about the UK constitution. Read at your peril.
Obie wrote:Some people have alluded that parliament could legislate even when article 50 is in operation..
Actually, in constitutional law, Parliament can legislate at any time, even while the Treaties are in effect.

EU laws have effect in the UK courts not because the UK signed some treaties, but because the UK Parliament enacted the European Communities Act 1972. That Act, as amended, implements EU law in the UK, not the Treaties.

In the unwritten British constitution (pick up that plate that you dropped), Parliament is sovereign and there is no limit to its legal power. It can even and has made (Act of Settlement 1701) and unmade (His Majesty's Declaration of Abdication Act 1936) monarchs or alter rights (only 4 sections-2 of which deal with the Church and the City of London-of that most hallowed and ancient of constitutional documents, the Magna Carta, are still in force).

The classical theory of parliamentary sovereignty, as enumerated by Dicey in 1885, states;
- Parliament can make or unmake any law;
- Parliament cannot bind its successors nor be bound by predecessors; and that
- No person or body is recognised by the law as having the right to override or set aside the legislative authority of Parliament.

So, it is wrong and foolish (I fancied a change of adjectives from the "unimaginable" and "deluded") to suggest that Parliament need wait for a referendum or for two years of the Lisbon treaty to alter the European Communities Act 1972.

It is unlikely to do so simply because the government always has a majority in the House of Commons and can always block such a measure. Besides, although it has not been done for the past 300 years,the Prime Minister could advise the Queen to withhold Royal Assent to such a Bill. So, it can be politically thwarted. But were such a repeal enacted, it would be constitutionally valid, irrespective of the Treaties.

And any such domestic legislative enactment will be given effect by the UK courts, notwithstanding the Treaties. As mentioned before, the domestic effect of the Treaties is only due to enactment by Parliament. And Parliament can unmake or alter the domestic effects of the Treaties.

I repeat, the above will not happen, for political reasons. But it is possible in law.

I have taken to heart the advice given on this forum to widen my reading and wish to offer the same opportunity to the unfortunate souls who have read so far down this post.

Introduction to the study of the law of the constitution (also in html format) - Albert Venn Dicey

The EU Bill and Parliamentary sovereignty - an analysis of the European Union Act 2011 by the European Scrutiny Committee of the House of Commons.

A well-written (in my view) student essay on the topic of parliamentary sovereignty.

A contrary view from Prof Matthew Elliott.
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.

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

Post by Obie » Thu Mar 03, 2016 5:33 pm

This thread has generated lots of view and opinions, some of which are very interesting. It has generated lots of anxiety and some complaint.

I believe it has got to the point, where it has lost its original purpose, and things are going down hill a bit.

It has been helpful in conveying to our every increasing members of our fine forum, the Deal that David Cameron has secured and the consequences of the deal in the event of the UK staying in the EU.

I think on second thought we could deal with this topic as a general discussion board.
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Re: New EU deal: Free-movement rights gone?

Post by Richard W » Thu Mar 03, 2016 10:42 pm

ohara wrote:I think vague is certainly an apt word to describe the entire situation of what the state of the UK will be in after an exit vote.
But this thread is primarily about what will happen if there is a vote to remain in the EU.

One of the arguments that making the rules for bring in family members depend on the country of residence will be ruled unacceptable is that it would deter moves between countries., e.g. to the UK. However, aren't the Surinder Singh (Surinder Singh route) rules subject to the same objection? To give a concrete example, a British husband and a Thai wife would, at present, be deterred from moving from Germany to Britain because, if the Thai wife's children living with her ex-husband and his new wife could not get along with his new wife, while the children could join the mother in Germany, they wouldn't be able to join the mother if she were in Britain. Is this current limitation on Surinder Singh route correct in EU law, or is it just a matter of dubious national transpositions?

I'm currently thinking that there may be an elegant method of implementing the new restrictions. My idea is to define when a spouse becomes a family member. If this works, it would be easy to implement transitional rules, which would make them more likely to be included in the 'complementary' directive, so ensuring that no-one exercising rights of movement within the EU suddenly lost them.

I think it's impossible to predict the rules as to when a family's children will count as family members. For example, it's not obvious whether a non-EU spouse's EU citizen child would always count as a family member.

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

Post by Richard W » Thu Mar 03, 2016 11:09 pm

tebee wrote:They can't start acting on the clarifications until those clarifications are given some force of law - they may wish to do so, but I'm sure any attempt to use them would be struck down by the courts.
I'm not so sure. This could be compared to the check that someone is of good character when he applies for registration as British as of right except for the need to be of good character. I think the Handbook on addressing the issue of alleged marriages of convenience between EU citizens and non-EU nationals in the context of EU law on free movement of EU citizens is the sort of document where this 'clarification' might be incorporated. This handbook is issued by the European Commission, not the parliament and not the courts.

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

Post by shnooks1 » Thu Mar 03, 2016 11:11 pm

bongwozzer wrote:Yes, it is a risk to move sooner and of course that only applies to those that are in a position to relocate inside of a couple of months or so.
I know this is easy to say - but we shouldn't stress about those things we have no control over. Of course, that doesn't mean we can't be mighty pissed about the whole issue :x
I'm extremely pissed that it might be very difficult for me to relocate with my husband just because we happened to meet and marry outside of the EU. They mostly want to stop everyone from getting around the financial requirement for UK, but that would make no sense and be unfair for those like us who have no intention of going to the UK or leaving the first country they reside in.

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

Post by Richard W » Fri Mar 04, 2016 9:56 pm

Denmark and Ireland were calling for amendments to 2004/38/EC in 2008 and 2009 after the Metock judgement, apparently with a view to reversing the judgement. Does anyone know of concrete amendments proposed? I've been searching for proposed amendments, but my googling skills don't seem to be up to the task. What I have found from the Justice and Home Affairs council seems very watered down.

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

Post by Richard W » Fri Mar 04, 2016 10:23 pm

bongwozzer wrote:I did have a look through the Spanish Ministry for Work and Social Security website for Foreigners - but no, I'm not aware of the rules you mentioned. I know they made some significant changes in 2012 or thereabouts. Do you have a reference or link I can study?
I did find what looked like a report for the European Commission, but now I can't find it. There are guides for settled foreigners, such as this. One of the things that is up in the air with the proposed directive is what rules EU foreigners would have to follow for bringing in their families.

There can be some very harsh terms around for citizens. I've just noticed that the UK is even harsher than I thought. UK Immigration Rule E-ECP.2.10 reads, "The applicant and partner must intend to live together permanently in the UK". That will mean that one shouldn't bring one's spouse to the UK on a settlement visa if one intends to retire abroad!

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

Post by frigglekick » Tue Mar 08, 2016 4:51 pm

I am a New Zealand national who lived in the UK on a Tier 5 Youth Mobility visa for 2 years. While in the UK I met my German partner, who then moved to NZ with me after my visa expired, also on a youth visa. We will be marrying in NZ in June just before the referendum. We then plan (or had planned) to move back to the UK after that.

I am really confused about the 'prior lawful residence' bit. Does it mean prior lawful residence at any point in time? i.e. would my two years in the UK on a tier 5 visa count? Would our free movement rights be unaffected or would she have to meet the financial requirements imposed on UK citizens to sponsor me?

Sorry if this is the wrong place to be posting this. I guess all we can do is wait for further clarification and see how it all plays out

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

Post by Richard W » Tue Mar 08, 2016 9:40 pm

We don't know what the new directive will be and your case exposes a lot of the ambiguities.

The biggest problem is that Frigglekick's German partner's past residence in the UK might disqualify Frigglekick. That would depend on the precise wording.

The next problem is the meaning of 'prior residence'. The British and Irish regulations overturned by Metock (I haven't studied other countries') required that the non-EEA partner be resident in the EEA already. Thus, Frigglekick's earlier lawful residence in the UK might count for nothing. I believe this can be solved, though. Visit France as a tourist, and travel with your partner from there to Britain by train, presenting your marriage certificate to the British Immigration Officer as a sort of visa. It might be helpful to carry evidence that your marriage is not one of convenience.

Another ambiguity is that, for the non-EEA route, we don't know what the residential qualification will be for Germans to sponsor spouses to the UK. At present, they need to have achieved permanent residence, and its not certain that they will acquire the same rights in this regard as Irishmen.

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