New EU deal: Free-movement rights gone?

I have a question for this already interesting discussion.

So assuming Brexit doesn't happen. Now, for non-EU spouses who never lived in the EU free movement is "dead" and technically national immigration rules apply.

Wasn't Directive 2004/38/EC enacted into every EU country's national legislation already? The treatment of 3rd country family members of EU nationals is already part of the system because "national legislation" issues article 10 residence cards under EU rules (which are present in national legislation). So how do things change?

Or am I going off in a totally wrong direction and national legislation means that .. lets do an example. German national with Chinese spouse (who never lived in the EU) wants to move to France. Now, France should apply national legislation. Which national legislation? The laws that they have to reunify are:
1. French citizens with their spouses?
2. Non-EU citizens with their non-EU spouses? (like Indian-Indian couples working in France)
3. EU citizens with their non-EU spouses? (the earlier used transposition of Directive 2004/38/EC)

So which one should France pick? I suppose the outcome the UK is hoping for is ... changing 3. to be more like 2. or 1. ? But which one?

In any case, I think the days of the simplified Schengen visa application for non-EU spouses might be gone. Article 10 residence cards also might no longer be issued. Over all the first people on the chopping block for free movement are non-EU spouses of EU nationals. Even those who never wanted to move to the UK. That's sad.

The new proposed amendment to the freedom of movement for non EU family members is probably going to be passed by the EU parliament but it's legality will still be in question and will probably be challenged in court. I strongly believe that transitional laws will be put in place for those who have already applied under the current regulations. This however might be abused by the home office. The ss route is obviously under attack but again it will be challenged in the courts. It is unfortunate that many who are yet to start the process will find it difficult to even get started. Currently the threshold requirement is bieng reviewed and might be struck down. Nobody really knows how this new regulations will be translated but by the look of it, there is a possibility that the ammendment to the existing laws might need a treaty change which is the last thing the EU wants. For those who have already applied and are currently under the current regulations, this new regulations might not apply as there will be transitional laws.

Also to add on what I have just stated I think we are not looking at the wording carefully. For instance those who marry an EU citizens after they have established residence. Established residence can mean those who have already attained permanent residence. It makes sense since if you marry someone who is a permanent resident in the UK gives one privileges of those marrying UK citizens. I don't think that this applies to those who marry EU citizens who have not settled. This is just my opinion.

What do you mean by settled? For instance we have been in the uk for 8 years and on our second eea2 because the first eea4 was refused due to lack of evidence of self employment. They surely just cant turn around and say goodbye 2 years before we can apply for another eea4. People have settled in the sense of kids, mortgage, jobs, etc..

By "settled" I mean acquired parmanent residence. "Established residence" doesn't necessarily apply to someone residing in the UK. Ithink there is a significant difference between an established resident and a resident. For instance, EU students who have been in the UK for less than five years have not yet acquired settlement nor do they qualify for settlement. Meanwhile those EU students who have been in the UK for more than five years and qualified for settlement would have established residence in the UK. The key wording here is "Established residence".

And do you think the new laws will be applying for existing people like myself? Doesnt the law start apply from the date its introduced or can they backtrack it?

nemerkh wrote:And do you think the new laws will be applying for existing people like myself? Doesnt the law start apply from the date its introduced or can they backtrack it?

I honestly don't think that those who have already been given resident cards will be affected. In any case there will be transitional laws to accommodate those who are already enjoying the freedom of movement with the current regulations. What is possibly going to happen is that those who apply after the new regulations have been put in place will have to meet the requirements. But again this are proposals that will have to go through the EU parliament and might not be accommodated by the EU courts. We will have to wait and see. Meanwhile let's hope that the UK supreme Court will overturn Theresa May's threshold requirements that has made many UK families to suffer. It will be discussed soon

Hi everyone,
I apologise if this has been asked before but I have some questions on how the new EU-UK deal will affect free-movement rights of non-EU spouses which I don't think there has been a clear-cut yes/no answers to. So according to the new EU's draft:

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 Member State. Accordingly, in such cases, the host Member State's immigration law will apply to the third country national. This proposal will be submitted after the above Decision has taken effect.

Does that mean that under the following circumstances:

1) if a EU national currently living in the UK marries a non-EU citizen that is currently not living in the UK/ EU, the non-EU citizen will not be able to move to the UK based on the fact that the EU national is now in the UK exercising his treaty rights

2) EU national living in the UK marrying a non-EU spouse who is currently living in the UK on a valid visa such as Tier 2 General won't allow the non-EU spouse to stay in the UK on the basis that the EU national is exercising his/ her treaty rights

3) If a EU national living in his home-country marries a non-EU spouse in the EU national's home country, then the EU national won't be able to bring his non-EU spouse to the UK because the non-EU spouse do not have prior lawful residence in the UK

4) It also says in the draft that the non-EU spouse will be subject to the host countries' immigration laws. Does that mean that in order for EU citizens to bring their non-EU spouse to the UK, the EU citizen will be subject to the same immigration laws as per UK citizens, i.e. minimum income threshold etc.

Also if UK votes to stay in the EU, when will these new regulations be put into practice? It says in the draft that the proposal will be submitted - does that mean that it will have to pass through the EU parliament before these changes will happen? Meaning that unlike benefits to EU citizens, the amendment free-movement rights will not happen overnight once UK votes to leave (unlike benefits/ welfare payments that will be in effect UK votes to stay in the EU) but will be subject to it passing through the EU parliament and the ECJ before it can materialise?

It'd be great if someone could clarify these as I (a non-EU citizen) recently got engaged to my fiancé (who is a EU citizen) and I'm afraid the new proposed changes will affect our ability to continue living in the UK legally. Thank you very much!

357mag wrote:the appeal on the 22nd will kill the financial requirement

nyabs wrote:Meanwhile let's hope that the UK supreme Court will overturn Theresa May's threshold requirements that has made many UK families to suffer. It will be discussed soon

The appeal is being heard from the 22nd to the 24th. And the judgement won't be delivered for a while. From the dates of recent Supreme Court judgements, I expect a ruling in about six months time.

But from what I know of the British judicial system, the judgement won't be as intemperate as those from European courts and will be quite circumscribed in its ruling. It is worth watching the recent judgement on joint enterprise. The judgement stated that the earlier interpretation of the l;aw was wrong, but did not free everybody imprisoned because of it. Rather, it granted a window of appeal, within which if appeal was granted, the sentence would be reduced from murder to manslaughter and the person would be resentenced on that basis. A very narrowly written judgement that is very limited in its application.

If the law is incorrect, the British courts do not write the law, they suggest to the government appropriate contours and outlines to adhere to. It is still up to the the government and Parliament to legislate.

357mag wrote:a change of government in a couple of years

Given the state of the opposition at the moment, it seems highly unlikely. Political & ideological purity don't win elections.

Then again, let's see how well Labour does in the Scottish and Welsh elections this year.

A change in government will not automatically lead to change of policy. There is a desire for controlled immigration no matter which party is in power. And that is unlikely to change.

Does having uk born children (eu passes) aged 8&6 play any role? Can they just turn around and say good bye?

http://www.theguardian.com/uk-news/2016 ... t-eu-rules


This article about the new restrictions for noneu born seems to be specific to noneu citizens who had an unlawful residence in an eu state / surrindur singh cases. Doesnt seem to apply for no eu citizens who resided in another eu state then got married then moved to the uk. Or was i reading it wrongly??

i am not legal adviser or solicitor but i have few friends who owns their own legal firms.

according to their point of view they cannot totally scrap EU family member rights regardless the nationality as its against EU human right and UK human right as well . like they have to give resident permit to the direct family member (spouse, husband , wife , children ) of legal person in this country (with legal status e.g EU Citizen)

but they are likely going to demolished the surinder Singh (S S) route as people who marry and get resident permit in different EU countries and they can come straight away to UK without any visa . so these are the possible restrictions on non eu family members of EU national and off course to take action against shame marriages!!!!!!!


if they do put restrictions on non eu family member of eu citizen the European Supreme court will thow it out. as in UK EU deal there is no safe guard against the EU supreme court and any other court of justice.

Rfrence Steve Peers – University of Essex
Steve Peers is Professor of Law at the University of Essex
http://blogs.lse.ac.uk/europpblog/2016/ ... -it-means/


best wishes

liksah wrote:German national with Chinese spouse (who never lived in the EU) wants to move to France. Now, France should apply national legislation. Which national legislation? The laws that they have to reunify are:
1. French citizens with their spouses?
2. Non-EU citizens with their non-EU spouses? (like Indian-Indian couples working in France)
3. EU citizens with their non-EU spouses? (the earlier used transposition of Directive 2004/38/EC)

So which one should France pick? I suppose the outcome the UK is hoping for is ... changing 3. to be more like 2. or 1. ? But which one?

Anti-discrimation rules suggest no. 1 (though I'm not sure how the German would get his livret de famille). However, I'm not sure, as Frenchmen can't bring their fiancées to the UK. No. 2 might be tricky - I'm not sure that EU nationals can get French work permits! (For comparison, UK citizens can't get visas to come to the UK.)

crunchycracker wrote: 1) if a EU national currently living in the UK marries a non-EU citizen that is currently not living in the UK/ EU, the non-EU citizen will not be able to move to the UK based on the fact that the EU national is now in the UK exercising his treaty rights

It's not clear whether lapsed residence will count. If you replace 'is currently not living' by 'who has never lived', the answer is 'correct', except that there may be some fuzziness between EU and EEA + Switzerland. As to residence in Greenland while it was in the EU...

crunchycracker wrote: 2) EU national living in the UK marrying a non-EU spouse who is currently living in the UK on a valid visa such as Tier 2 General won't allow the non-EU spouse to stay in the UK on the basis that the EU national is exercising his/ her treaty rights

Correct. However, they can move together to an EU country where the EU national has never lived.

crunchycracker wrote: 3) If a EU national living in his home-country marries a non-EU spouse in the EU national's home country, then the EU national won't be able to bring his non-EU spouse to the UK because the non-EU spouse do not have prior lawful residence in the UK

Wrong, assuming the non-EU spouse was lawfully resident in the EU national's home country. This is the prototypical freedom of movement case, allowing an EU national and his family to move around. (The prototype ignores how the non-EU spouse got there in the first place.)

crunchycracker wrote: 4) It also says in the draft that the non-EU spouse will be subject to the host countries' immigration laws. Does that mean that in order for EU citizens to bring their non-EU spouse to the UK, the EU citizen will be subject to the same immigration laws as per UK citizens, i.e. minimum income threshold etc.

Yes.

crunchycracker wrote: Also if UK votes to stay in the EU, when will these new regulations be put into practice? It says in the draft that the proposal will be submitted - does that mean that it will have to pass through the EU parliament before these changes will happen? Meaning that unlike benefits to EU citizens, the amendment free-movement rights will not happen overnight once UK votes to leave (unlike benefits/ welfare payments that will be in effect UK votes to stay in the EU) but will be subject to it passing through the EU parliament and the ECJ before it can materialise?

Correct. The one prediction I've seen is around the new year, give or take a few months.

mkhan2525 wrote:If the requirement is abolished or reduced to meet the requirement of the minimum wage then HO may not implement the changes on SS route since there would be no need to follow this route to bring over a spouse.

It's needed because of the ridiculous English language requirement.

juditali wrote:according to their point of view they cannot totally scrap EU family member rights regardless the nationality as its against EU human right and UK human right as well . like they have to give resident permit to the direct family member (spouse, husband , wife , children ) of legal person in this country (with legal status e.g EU Citizen)

A person settled in the UK does not have an unconditional right to bring his non-EU children or spouse to the UK. Non-British EU citizens are currently privileged in this respect.

ryuzaki wrote:

mkhan2525 wrote:If the requirement is abolished or reduced to meet the requirement of the minimum wage then HO may not implement the changes on SS route since there would be no need to follow this route to bring over a spouse.

It's needed because of the ridiculous English language requirement.

What's ridiculous about it?

Wanderer wrote:What's ridiculous about it?

It is supposed to ensure integration, but if that were the case it would be a requirement to integrate.

Richard W wrote:

crunchycracker wrote: 3) If a EU national living in his home-country marries a non-EU spouse in the EU national's home country, then the EU national won't be able to bring his non-EU spouse to the UK because the non-EU spouse do not have prior lawful residence in the UK

Wrong, assuming the non-EU spouse was lawfully resident in the EU national's home country. This is the prototypical freedom of movement case, allowing an EU national and his family to move around. (The prototype ignores how the non-EU spouse got there in the first place.)

Note that this assume that the marriage is the non-EU national's first marriage. It is possible that a previous marriage to an EU national may have disqualified said non-EU spouse. However, whether that previous marriage actually disqualifies will depend on the precise wording of the directive and its transpositions into national law. The meaning of the second disqualifying condition is dependent on the difference between "the host state" and "a host state"! This could cause fun translating the directive into languages without articles!

The part of the agreement that worries me is the new guidelines on sham marriages. UK, EU law and all EU directive make it clear that a sham marriage is one that was entered for immigration purposes. But the agreement wording says the concept shall cover "maintaining" a marriage. So if a truly legitimate couple who lived as a married couple separate but don't divorce before permanent residency, is the non-EEA now at risk of losing all of their rights despite all Home Office and EU guidance saying otherwise because they will now be considered a sham marriage ??? The wording is so vague that it could be interpreted by Home Office in some very strange ways.

Anyone have any thoughts on this.

Richard W wrote:

crunchycracker wrote:

crunchycracker wrote: 2) EU national living in the UK marrying a non-EU spouse who is currently living in the UK on a valid visa such as Tier 2 General won't allow the non-EU spouse to stay in the UK on the basis that the EU national is exercising his/ her treaty rights

Correct. However, they can move together to an EU country where the EU national has never lived.

RichardW, I don't know if I necessarily agree with your reply to this question, as a non-EU spouse on a Tier 2 Visa is technically 'lawfully residing' in the UK.

My interpretation on the proposal, specifically, "third country nationals who had no prior lawful residence in a Member State before marrying a Union citizen," is that it is mainly pertinent to those couples that are not co-habitating together in the member state (in this case the UK) prior to marriage. The same goes for the second part of the proposal.

I would assume that a Non-EU national on a Tier 2 visa is, in fact, living in the UK as a lawful resident. Should they marry an EU citizen living in the UK, then this proposal would not affect the Non-EU national. I think this proposal is meant to bring more control to restricting potential marriages of convenience, otherwise, all non-EU spouses would lose their treaty rights as a family member of an EU citizen.

I'm an Italian / American dual citizen living in the UK. I came over to the UK with my US unmarried partner 3 years ago. She is on a Tier 2 visa, and because I had been going through the paper work process to become recognized as an Italian citizen, I was also on a Tier 2 visa. We married last April, and my paperwork for Italian citizenship finalized in the Autumn. I am now exercising my treaty rights and my spouse has recently applied for her EEA2 card, ultimately dissolving her status as a Tier 2 migrant. If your assumption proves correct, well then, we would both have to move, as she wouldn't have maintained her status as a lawful Tier 2 resident. It seems a bit convoluted to pick apart relationships like these, as opposed to ones that look 'convenient' from a immigration standpoint in order to circumvent national immigration laws.

BUT
if the law comes into place say in June after a YES vote, do you think it will apply for people already taking the EEA route at present (ie on their EEA2s, awaiting EEA4s)?
Shouldnt this law be applied to people entering the UK after implementing the law? So for example newcomers on a family eea visa?

No one knows for sure. However, in the past, especially with other immigration rules in the UK, the date of application is the date in which respective immigration rules apply. Meaning, applications are considered under the rules that are in force at the date of application.

Cool.
So in this instance, are:
1) all noneu spouses of eu citizens residing in uk will be refused and asked to leave?
2) some noneu spouses, but which category and on what basis?
3) i got the whole thing wrong

the3rdman wrote:No one knows for sure. However, in the past, especially with other immigration rules in the UK, the date of application is the date in which respective immigration rules apply. Meaning, applications are considered under the rules that are in force at the date of application.

But remember that EEA Regulations are not Immigration Rules. They are made under different Acts of Parliament and behave in different ways. For instance, the Immigration Rules are tougher, but have some discretion that can be exercised. The EEA Regulations do not have discretion. You either meet the requirements 100% or you don't.

They are completely different in character. Do not assume that the same rules apply.