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You may want to check how Italian law applies in this aspect.the3rdman wrote:My Italian citizenship is based on my blood line, so technically, I've been Italian since birth, but only recognized recently.
Nope, actually, it is dead simple. EEA citizens are not subject to the Immigration Rules(see Sections 5 & 7). Therefore when you acquired Italian citizenship, any leave granted to you under the Immigration Rules ceased. You do not have a Tier 2 visa anymore.the3rdman wrote:Technically, I'm still on my Tier 2, so I'm not sure exactly when I began exercising my treaty rights, as my dual citizenship has made the situation a bit tricky. So, when I married my wife, I was in the UK as an 'American.' But now I am trying to exercise my treaty rights, even though I'm in the same job since obtaining Tier 2.
I doubt that so much thought went into creating an SS route specifically. It was more a case of the ECJ/CJEU applying the Treaty in a very broad manner. The consequences of it can be seen years later, but the Court has not reversed itself, as it did in Metock.Wanderer wrote:Think is might be prudent to consider why EU Rules for immigration came into being and subsequently SS etc.
I'd understood it was devised purely to give those EU citizens living and working in EU States other than their own a path to import their non-EU inamorata as they cannot use their home State rules (not resident) nor their current State's rules (not a local Citizen). To be honest I don't know exactly WHY its not possible to use another States immigration rules, other than legal rhetoric. Anyway, let's say thats a given.
It's a decent solution for a real problem. That's what it was designed for. What it wasn't designed for was to facilitate a backdoor for those who can't afford local immigration, or wish to bypass local law in favour of more open EU law, thinking Adult dependant relatives here.
While the rules are in place as they are, I don't blame people for taking advantage of them, but let's not kid ourselves, hopping to Dublin for a few weeks and bringing the entire family into UK on SS isn't really Cricket. It was bound to eventually set the alarm bells off at UKVI and this is what we're seeing now.
I'd agree changing things goes against all the EU stands for on freedom of movement, but sometimes things need to change because people by their very nature find a loophole and abuse it, as would I before anyone jumps on me!
The latter part of the interpretation is what makes Surinder Singh so hard to close. Conversely, that creates two tiers of EU citizens; those who do exercise their freedom of movement and those who don't.Note that according to the CJEU, EU free movement law does not just require the abolition of discrimination between UK and other EU citizens, but also the abolition of non-discriminatory ‘obstacles’ to free movement.
The proposed draft:s1120403 wrote:Do these new measures affect only the Surinder Singh applications or do they affect the ones of Eu-nationals residing in the UK who then get married to a non-EU ?
I've read the thread, but it seems that you are discussing only the Surinder Singh route. To me it seems that the wording of the new measures include as well EU-nationals who are not British citizens, but have been working in the UK and then get married to a non-EU and want to apply for a residence card for their spouse. Is it so or would it affect only the Surinder Singh couples ?
We're only able to engage in this dialogue because of a common tongue, in this case English.ryuzaki wrote:It is supposed to ensure integration, but if that were the case it would be a requirement to integrate.Wanderer wrote:What's ridiculous about it?
If your entire residence in Latvia up until you married your wife was lawful, I believe the only planned new restriction announced is that you can't use the family member rights to return to Latvia. The only issue is what exactly counts as 'lawful residence'.nemerkh wrote:So if i am from Lebanese nationality, went to latvia before they joined eu as a student, then married my wife (latvian-eu) after they joined the eu, came to UK on family visa then eea2 will that mean am targeted bow?
Note that the first clause is:crunchycracker wrote: There are 2 clauses here:
1) Non-EU national do not have prior lawful residence in a member state or
2) Marrying EU national after he has established residence in the host member state.
A possible mechanism that's been suggested would be for the never-married future non-EU spouse to become a student in Bulgaria, marry the British citizen there, move to a 3rd EEA territory for the British citizen to work, and then move to the UK. Of course, the ECO might claim that the qualifications for starting the course in Bulgaria were falsified, and that the residence was not lawful.crunchycracker wrote: In other words, the new draft only affects Surinder Singh case where the non-EU spouse is not currently living in the UK legally (EU citizen bringing spouse directly from non-EU country by first exercising treaty rights in Europe). For cases where non-EU spouse is already living in the UK, the Surinder Singh method might still work.
Thanks, crunchycracker, for your detailed explanations. However, I still am not sure I get this right: if an EU national residing in the UK marries a non-EU who never set foot in Europe (let's say marries them in a country outside EU) and then the EU national brings them on a family permit to the UK (which seems to be the situation of many on this forum), will the non-UE spouse be allowed free movement or not ? If not, how would it be possible for the couple to live in the UK ? In my opinion, if free movement were forbidden in such case, then it would imply that no EU national will be allowed to marry a non-EU national who never set foot in Europe before...crunchycracker wrote:The proposed draft:s1120403 wrote:Do these new measures affect only the Surinder Singh applications or do they affect the ones of Eu-nationals residing in the UK who then get married to a non-EU ?
I've read the thread, but it seems that you are discussing only the Surinder Singh route. To me it seems that the wording of the new measures include as well EU-nationals who are not British citizens, but have been working in the UK and then get married to a non-EU and want to apply for a residence card for their spouse. Is it so or would it affect only the Surinder Singh couples ?
"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."
There are 2 clauses here:
1) Non-EU national do not have prior lawful residence in a member state or
2) Marrying EU national after he has established residence in the host member state.
What this means is that if the non-EU citizen currently residing in the UK legally married a EU citizen in the UK after he has established residence in the UK, the non-EU citizen will not inherit the free-movement rights from his spouse to stay in the UK.
The EU citizen can however, after marrying the non-EU citizen residing legally in the UK, exercise the free movement rights by bringing the spouse to another EU country e.g. France/ Ireland etc as both criteria will be met (1) non-EU citizen has lawful residence in the UK. 2) The couple were married before they move to another EU host country ).
What remains unknown is if the EU citizen would be able to bring the non-EU spouse back to the UK after exercising his treaty rights in another EU country. There is a potential loophole that would be similar to the Surinder Singh case - bringing non-EU spouse in without subject to British immigration laws.
In other words, the new draft only affects Surinder Singh case where the non-EU spouse is not currently living in the UK legally (EU citizen bringing spouse directly from non-EU country by first exercising treaty rights in Europe). For cases where non-EU spouse is already living in the UK, the Surinder Singh method might still work.
Well, according to Wikipedia, the phrase only dates back to 1968! I have seen a statement that the priority of legitimate expectations lies between primary and secondary legislation. This makes sense, as there is extremely poor scrutiny of secondary legislation.secret.simon wrote:Either you have a very good memory or very good research skills. A very specific and relevant precedent to cite. Would you know when the doctrine of "legitimate expectations" was introduced into immigration law? Or did it not apply in 1968 because an Act of Parliament is not questioned by the courts?
I presume the family member route will be reopened to EU nationals, with or without permanent residence. British citizens are still bringing in non-EU wives.s1120403 wrote:However, I still am not sure I get this right: if an EU national residing in the UK marries a non-EU who never set foot in Europe (let's say marries them in a country outside EU) and then the EU national brings them on a family permit to the UK (which seems to be the situation of many on this forum), will the non-UE spouse be allowed free movement or not ? If not, how would it be possible for the couple to live in the UK ? In my opinion, if free movement were forbidden in such case, then it would imply that no EU national will be allowed to marry a non-EU national who never set foot in Europe before...
You are right. and wrong. The draft states that for such cases, the non-EU spouse will be subject to the host country's immigration law. In other words, if a EU-national marries a non-EU national that lives outside EU, then the non-EU spouse cannot enjoy free movement rights. However, the EU national can still sponsor the non-EU spouse a spouse visa but that will be subject to the immigration laws of the country the EU national is residing in.s1120403 wrote: Thanks, crunchycracker, for your detailed explanations. However, I still am not sure I get this right: if an EU national residing in the UK marries a non-EU who never set foot in Europe (let's say marries them in a country outside EU) and then the EU national brings them on a family permit to the UK (which seems to be the situation of many on this forum), will the non-UE spouse be allowed free movement or not ? If not, how would it be possible for the couple to live in the UK ? In my opinion, if free movement were forbidden in such case, then it would imply that no EU national will be allowed to marry a non-EU national who never set foot in Europe before...
Anger and intolerance are the enemies of correct understanding.
Mahatma Gandhi
Ok, so how about if a french national, marries a columbian studying in france and then move to the uk?crunchycracker wrote:You are right. and wrong. The draft states that for such cases, the non-EU spouse will be subject to the host country's immigration law. In other words, if a EU-national marries a non-EU national that lives outside EU, then the non-EU spouse cannot enjoy free movement rights. However, the EU national can still sponsor the non-EU spouse a spouse visa but that will be subject to the immigration laws of the country the EU national is residing in.s1120403 wrote: Thanks, crunchycracker, for your detailed explanations. However, I still am not sure I get this right: if an EU national residing in the UK marries a non-EU who never set foot in Europe (let's say marries them in a country outside EU) and then the EU national brings them on a family permit to the UK (which seems to be the situation of many on this forum), will the non-UE spouse be allowed free movement or not ? If not, how would it be possible for the couple to live in the UK ? In my opinion, if free movement were forbidden in such case, then it would imply that no EU national will be allowed to marry a non-EU national who never set foot in Europe before...
For example if you're a French citizen living in the UK and you married a Columbian spouse, you cannot bring your spouse to the EU as he/she cannot inherit the free-movement rights you're entitled to. However I believe EU nationals should be entitled to sponsor non-EU citizens just like any British citizen could subject to the certain criteria e.g. earning above the minimum income threshold etc. It might be the same criteria imposed on British citizens, or it could be a stricter criteria than British citizens - no details on this have been announced yet.
The basic freedom of movement was for workers, and their families were allowed to follow them. To quote 2004/38/EC:Wanderer wrote:I'd understood it was devised purely to give those EU citizens living and working in EU States other than their own a path to import their non-EU inamorata as they cannot use their home State rules (not resident) nor their current State's rules (not a local Citizen). To be honest I don't know exactly WHY its not possible to use another States immigration rules, other than legal rhetoric. Anyway, let's say thats a given.
Now the workers' precursor of this directive was Directive 68/360/EEC of 15 October 1968. Back in those days, a man's wife could get herself a passport for his nationality within weeks of marriage - and all this in her country! The flip side was that she might lose her original nationality in the process.The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality.
I don't completely agree. EU directives have to be transposed into national laws and in the UK, it is done by secondary legislation. But there is an element of direct enforceability that gives EU directives certain aspects of primary legislation.Richard W wrote:Be warned that EU directives are primary legislation.
Provided the student's permission to be in France confers 'lawful residence', that's allowed by the proposed law. However, I'm not sure they could move back to France relying on EU law.nemerkh wrote:Ok, so how about if a french national, marries a columbian studying in france and then move to the uk?
You don't say.Obie wrote:There is a process involved in legislative changes.
That statement is there for a reason. I am not unaware of the legislative process and keenly follow it.secret.simon wrote:Because it will be treated as a constitutional piece of legislation, I would not expect enactment of a new EU Act till at least June 2017.