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Non-EEA spouses excluded from EEA-route under EU-UK deal?

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

noajthan
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Re: Non-EEA spouses excluded from EEA-route under EU-UK deal

Post by noajthan » Tue Feb 02, 2016 10:33 pm

secret.simon wrote:I will comment on the blog piece in this thread so as to keep the discussion in one place.

The text of the letter is so flaccidly drafted that it amounts to a whole lot of words having exactly no effect.

Let's analyse the text (taken from the blog post);
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.
Given that CJEU/ECJ's way of interpreting EU law is so relaxed and expansive as to let the whole of Hannibal's army through, elephants et al, I predict that the way that the first clause would be interpreted would be such that any single period of lawful residence at any point in time would allow the spouse to come under freedom of movement. So, a visit visa from any one EU state or a study semester in the EU from a foreign university would give a person life-long immunity in the whole of the EEA from this provision.

...

These documents are not worth the bytes they occupy on the server's hard drives or are transmitted as across the Internet.
I am struggling to understand how this proposal sits with Metock(C-127/08) which relates to non-EEA family members of EEA nationals and prior lawful residence in a member state ...
In this judgment the ECJ stated:
the right of residence of a non-EEA national direct family member of an EEA national exercising free movement rights in a host member state does not depend on the family member’s previous immigration status;
the right to reside in an EEA member state is given by European community law and is not dependent on domestic law of the host member state;
All that is gold does not glitter; Not all those who wander are lost. E&OE.

logical_1
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Re: Non-EEA spouses excluded from EEA-route under EU-UK deal

Post by logical_1 » Wed Feb 03, 2016 6:27 am

Sorry if this sounds stupid but what changes are being made to SS route??
Did u sell your soul for a mere stack?

Petaltop
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Re: Non-EEA spouses excluded from EEA-route under EU-UK deal

Post by Petaltop » Wed Feb 03, 2016 7:51 am

Obie wrote:
One of the changes that will be controversial is the proposal that EU migrant can be removed on the basis of past conviction, even if there is no imminent threat.
Thats the deal breaker as far as many other forums are concerned. They don't want the sex offending migrants to get an EEA passport and arrive in the UK. Nor do they' want the EU to make them keep these sex offending men (often of 3rd world descent) when they are released from prison.

Labour have already been calling for criminals to be deported.
‘Anyone up in court and found guilty should be deported. Why should we put up with people who are breaking our laws?’
http://www.frankfield.com/latest-news/a ... x?p=102782

The laws to make it easier to remove British citizenship, seems to be following this line of thought.

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Re: Non-EEA spouses excluded from EEA-route under EU-UK deal

Post by secret.simon » Wed Feb 03, 2016 8:29 am

noajthan wrote:I am struggling to understand how this proposal sits with Metock(C-127/08) which relates to non-EEA family members of EEA nationals and prior lawful residence in a member state ...
Metock was explicitly based on the Directive, not the Treaties. If the Directive is modified, the judgment is implicitly repealed to the extent of incompatibility, at least in English law.
logical_1 wrote:Sorry if this sounds stupid but what changes are being made to SS route??
secret.simon wrote:It seems that the UK "center of life" test has been accepted in principle by the EU authorities.

As regards situations of abuse in the context of entry and residence of non-EU family members of mobile Union citizens the Commission will clarify that:
• Member States can address specific cases of abuse of free movement rights by Union citizens returning to their Member State of nationality with a non-EU family member where residence in the host Member State has not been sufficiently genuine to create or strengthen family life and had the purpose of evading the application of national immigration rules.
Not much change for British SS applicants, yet. The EU seems to have accepted the UK's center of life test as a part of the Surinder Singh route. So, pretty much no change at the moment. It is possible that the rules on the center of life are toughened in the future.

With respect, Petaltop, Frank Field is one of the most moderate (Blue Labour) Labour MPs and certainly not in tune with the current Labour leadership. Given that he is citing (and being quoted in) the Daily Wail, I would not take his statements as reflective of Labour party policy.
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Petaltop
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Re: Non-EEA spouses excluded from EEA-route under EU-UK deal

Post by Petaltop » Wed Feb 03, 2016 8:55 am

secret.simon wrote:
With respect, Petaltop, Frank Field is one of the most moderate (Blue Labour) Labour MPs and certainly not in tune with the current Labour leadership. Given that he is citing (and being quoted in) the Daily Wail, I would not take his statements as reflective of Labour party policy.
He is a very popular MP with longterm Labour votors (longterm = families voted Labour for many generations) as he is part of the real Labour, instead of the New Labour that Blair created.

I think we both know that the current Labour leader wasn't what Labour wanted. Putting someones name up for a joke and then ending up with a leader the party never wanted because their "anyone can vote for £3" became an open target for Greens, Journalists and Conservative supporters.
http://www.buzzfeed.com/jimwaterson/cat ... .bfXk6Qy4K
Something else they will need to sort before the next election if they want a chance of winning.
Last edited by Petaltop on Wed Feb 03, 2016 9:01 am, edited 2 times in total.

Obie
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Re: Non-EEA spouses excluded from EEA-route under EU-UK deal

Post by Obie » Wed Feb 03, 2016 8:58 am

I will not say the proposed changes on Surinder Singh is close to centre of life. It is more close to OB and the language used there.


The change does not talk about centre of life or the integration into another member state.

The treaty rights of the EU citizen was the basis of Metock.

Interesting to note that the draft does not mention amending or changing Directive 2004/38EC, it talks about complementing it.

I shall leave that to your imagination .
Judge not, and you will not be judged.

secret.simon
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Re: Non-EEA spouses excluded from EEA-route under EU-UK deal

Post by secret.simon » Wed Feb 03, 2016 9:05 am

Petaltop wrote:
secret.simon wrote:
With respect, Petaltop, Frank Field is one of the most moderate (Blue Labour) Labour MPs and certainly not in tune with the current Labour leadership. Given that he is citing (and being quoted in) the Daily Wail, I would not take his statements as reflective of Labour party policy.
He is a very popular MP with longterm Labour votors (longterm = families voted Labour for many generations) as he is part of the real Labour, instead of the New Labour that Blair created.

I think we both know that the current Labour leader wasn't what Labour wanted. Putting someones name up for a joke and then ending up with a leader the party never wanted because their "anyone can vote for £3" became an open target for Greens, Journalists and Conservative supporters.
http://www.buzzfeed.com/jimwaterson/cat ... .bfXk6Qy4K
Something else they will need to sort before the next election if they want a chance of winning.
I do not deny that he is popular or sensible. But neither are adjectives to be used of current policy espoused by the present Labour party leadership.

We live in an era of disruptive party politics. A comedian got elected President of Guatemala, a joker leads a party in Italy (and I am not referencing Silvio Berlusconi) and as for across the pond, the only reassuring figure and voice is Justin Trudeau.
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ryuzaki
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Re: Non-EEA spouses excluded from EEA-route under EU-UK deal

Post by ryuzaki » Wed Feb 03, 2016 1:23 pm

It seems like the ban on non-EEA spouses who married inside the EEA wouldn't stand up to a challenge. It seems like it would unfairly disadvantage people who made the mistake of getting married in the EEA. People who could afford to would simply take a trip to some non-EEA country, probably their partner's home country, to sign that form.

What really concerns me is the language that talks about the reason for moving to an EEA country. At the moment you can be completely up front about moving to another EEA country for the minimum amount of time possible purely to make use of your treaty rights. I suppose the main thing is that the onus is still on the UK to prove their case, unlike UK immigration rules that require the application to prove their's.

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Re: Non-EEA spouses excluded from EEA-route under EU-UK deal

Post by pochaco » Wed Feb 03, 2016 1:35 pm

ryuzaki wrote:It seems like the ban on non-EEA spouses who married inside the EEA wouldn't stand up to a challenge. It seems like it would unfairly disadvantage people who made the mistake of getting married in the EEA. People who could afford to would simply take a trip to some non-EEA country, probably their partner's home country, to sign that form.
In my understanding marrying in your non-EEA partner's country wouldn't make any difference. For instance, we got married in my non-EEA wife's country when I had been resident in the UK for several years as an EEA citizen. Would that save us from the proposed new rules? I don't think so.

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Re: Non-EEA spouses excluded from EEA-route under EU-UK deal

Post by Casa » Wed Feb 03, 2016 2:01 pm

ryuzaki wrote:It seems like the ban on non-EEA spouses who married inside the EEA wouldn't stand up to a challenge. It seems like it would unfairly disadvantage people who made the mistake of getting married in the EEA. People who could afford to would simply take a trip to some non-EEA country, probably their partner's home country, to sign that form.

What really concerns me is the language that talks about the reason for moving to an EEA country. At the moment you can be completely up front about moving to another EEA country for the minimum amount of time possible purely to make use of your treaty rights. I suppose the main thing is that the onus is still on the UK to prove their case, unlike UK immigration rules that require the application to prove their's.
Actually, you are misguided in the belief that; 'At the moment you can be completely up front about moving to another EEA country for the minimum amount of time possible purely to make use of your treaty rights.:
If you make the HO aware (or they become aware) that you re-located to another EU state with the sole intention of using the SS route, they are likely to refuse due to 'the circumvention of the Immigration Rules'. There have already been refusals due to this.
(Casa, not CR001)
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ryuzaki
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Re: Non-EEA spouses excluded from EEA-route under EU-UK deal

Post by ryuzaki » Wed Feb 03, 2016 2:10 pm

I thought that the EU court had already ruled that even if the purpose of moving was to exercise your treaty rights, as long as you met the other criteria (3 months, centre of life) that was fine.

In fact, the draft deal states:
‘In accordance with Union law, Member States are able to take action to prevent abuse of rights or fraud, such as the presentation of forged documents, and address cases of contracting or maintaining of marriages of convenience with third country nationals for the purpose of making use of free movement as a route for regularising unlawful stay in a Member State or for bypassing national immigration rules applying to third country nationals.’
So it very much sounds like they want a change here, implying that at the moment bypassing national immigration rules is acceptable.

Later it states:
‘Member States can address specific cases of abuse of free movement rights by Union citizens returning to their Member State of nationality with a non-EU family member where residence in the host Member State has not been sufficiently genuine to create or strengthen family life and had the purpose of evading the application of national immigration rules’
Emphasis mine. That "and" is very important, as it implies you would have to fail both the centre of life test and be shown to be done to evade national immigration rules.

It's all a bit confusing. It also says:
‘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.’
Which would seem to imply and end to the SS route for most people. Urgent clarification is needed, but I can see many people (including myself) forced to leave the UK because of this.

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Re: Non-EEA spouses excluded from EEA-route under EU-UK deal

Post by ryuzaki » Wed Feb 03, 2016 2:11 pm

I should post this link too, which has some analysis: http://eulawanalysis.blogspot.be/2016/0 ... al-eu.html

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Re: Non-EEA spouses excluded from EEA-route under EU-UK deal

Post by mkhan2525 » Wed Feb 03, 2016 2:35 pm

It will be interesting to see what happens when those who are currently doing the SS route, return to the UK after the new changes have been implemented.

Will there be some sort of transitional arrangement?

The commission has made it clear that changes won't take effect until the referendum provided it is a vote to stay.
This Decision shall take effect on the same date as the Government of the United Kingdom informs the Secretary-General of the Council that the United Kingdom has decided to remain a member of the European Union.
https://t.co/LxU58xLwRH

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Re: Non-EEA spouses excluded from EEA-route under EU-UK deal

Post by secret.simon » Wed Feb 03, 2016 2:49 pm

Today's episode of the World At One on BBC Radio 4 covered the topic of EU law interpretation and how it can be circumscribed within the UK. Quite an interesting listen. I will post the link to the .MP3 when it is uploaded to the BBC website.
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Re: Non-EEA spouses excluded from EEA-route under EU-UK deal

Post by ryuzaki » Wed Feb 03, 2016 3:19 pm

In some ways it might actually be better for people using the SS route for the UK to exit the EU, since it is unlikely that treaty rights would end immediately. If they did 2.5 million British citizens would be forced to return to the UK, many of them to claim benefits due to being retired or unemployed. Presumably if we left these rules would never be implemented.

I really hope other countries reject these changes. As the blog post I linked to mentioned, it's not clear how much of an effect they would have anyway as the SS route is based on treaty rights, which override the kinds of legal changes the document wants to make. More likely it is signalling that EU courts would use different criteria for judgements, and the changes will doubtlessly be legally challenged to the highest possible court.

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Re: Non-EEA spouses excluded from EEA-route under EU-UK deal

Post by secret.simon » Wed Feb 03, 2016 4:14 pm

As I have mentioned in other threads, people are making a big mistake in thinking that the EU is going to remain the same whether the UK is within or without the EU.

As I have mentioned in multiple posts in this thread, the EU's position on immigration and migrants from outside the EU is changing in light of the migrant crisis of last year, irrespective of a Brexit. Schengen was brought to its knees last Monday and that did not require the UK or discussions on Brexit. It would be hugely ironic if Germany and Sweden's open-armed welcome of refugees destroys the European dream.

The mood against immigration is souring everywhere within the EU. With the Greek financial crisis, people have become aware of the democratic deficit within the EU and the lip service to subsidiarity while Brussels rams through legislation that affects all member states without their approval. The migration crisis have brought home to the East European countries, which had hitherto been the most vocal advocates of freedom of movement, that they can not control their borders either and they found that they did not like the idea that much now.

The UK is not the only country to have a referendum to leave the EEA on the grounds of uncontrolled immigration. Switzerland voted to put restrictions on number of EEA migrants in 2014 and for the mocking question that they have not yet left the EEA, their negotiations are pending the results of Brexit.

It is unfortunate but true that large-scale uncontrolled migration even within a union would break it up. Large countries such as Russia and China have always had mechanisms such as internal passports to control migration within the country, never mind without. Countries such as Australia and Canada have had such low populations relative to their size and capacity that they have not required controls for internal migration. The EU simply does not have the resources for people swishing around countries within the EU in an uncontrolled manner. To put it in perspective, Canada has less than half the population of England (not the UK, just England) and Australia just over a third of the population of England (or alternatively, just three times the population of London alone).
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ryuzaki
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Re: Non-EEA spouses excluded from EEA-route under EU-UK deal

Post by ryuzaki » Thu Feb 04, 2016 10:36 am

Maybe the best result then would be for the UK to vote out, and the EU to ditch the proposals. Then I move to Scotland which becomes independent and re-joins the EU.

It's unfortunate when British citizens are forced out of their own country because of extreme xenophobia and lovely.

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Re: Non-EEA spouses excluded from EEA-route under EU-UK deal

Post by Obie » Thu Feb 04, 2016 6:30 pm

ryuzaki wrote:Maybe the best result then would be for the UK to vote out, and the EU to ditch the proposals. Then I move to Scotland which becomes independent and re-joins the EU.

It's unfortunate when British citizens are forced out of their own country because of extreme xenophobia and lovely.
That may not be bad.

Scotland and possibly Northern Ireland to a lesser extent may well part company with the Union in the event of Brit exit.

Opinion polls shows over 60% of Scottish voters wants to remain in the EU.

A larger proportion of Scott wants to stay in the EU more than they want to be part of the UK.

It will be a constitutional outrage for the England to take them out.
Judge not, and you will not be judged.

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Re: Non-EEA spouses excluded from EEA-route under EU-UK deal

Post by secret.simon » Thu Feb 04, 2016 6:34 pm

Obie wrote:It will be a constitutional outrage for the England to take them out.
Not constitutional; political yes, but not a constitutional outrage.

The United Kingdom is still a single unitary nation-state.

When Switzerland, which is a confederation, not a unitary state, had a referendum that would have the effect of breaking the EU treaties, different cantons voted different ways, but the referendum still bond the whole of Switzerland, even cantons that voted against breaking the EU treaties. It was not a constitutional outrage there and it is much less a constitutional outrage here.
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Re: Non-EEA spouses excluded from EEA-route under EU-UK deal

Post by secret.simon » Thu Feb 04, 2016 6:46 pm

As my example illustrated, the country votes as one. Parts of the country do not get an exemption because they voted another way. Kent tends to vote Conservative, Newcastle votes Labour, Glasgow votes SNP and Northern Ireland has its own parties, but they can not plead an exemption from the policies of a government of another party because they did not vote for it. The country is one and votes as a whole.
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