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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

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

Post by pochaco » Tue Feb 02, 2016 12:42 pm

"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."

The above is an excerpt from the new EU-UK settlement proposal. You can find it here:

http://www.consilium.europa.eu/en/press ... lement-uk/

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

Post by noajthan » Tue Feb 02, 2016 1:19 pm

pochaco wrote:"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."

The above is an excerpt from the new EU-UK settlement proposal. You can find it here:

http://www.consilium.europa.eu/en/press ... lement-uk/
Lawful residence seems to be the key here. This is sure to become a hot topic.

And food for thought in relation to the UK's centre of life requirements for BCs returning to Blighty via Surinder Singh route...
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
Ofcourse abuse of the system has never been tolerated in EU law, ever since Emsland‑Stärke laid out the ground rules & O v Netherlands established that refusals based on abuse are permissible.
All that is gold does not glitter; Not all those who wander are lost. E&OE.

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

Post by Obie » Tue Feb 02, 2016 1:20 pm

In the absence of a treaty change, the CJEU will simply struck it down.
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 » Tue Feb 02, 2016 1:23 pm

Excellent research, pochaco.

I suggest to the mods that for the sake of maintenance of continuity and completeness on these forums, this thread should be merged with the thread on the EU referendum.

The letter by President Donald Tusk to the Members of the European Council (heads of government of the 28 member states) is quite revealing.

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.
The definition of a marriage of convenience will be tightened.
• The concept of marriage of convenience - which is not protected under Union law – also covers a marriage which is maintained for the purpose of enjoying a right of residence by a family member who is not a national of a Member State.
There is even a suggestion that Directive 2004/38/EC may be completely rewritten.
Moreover, on the occasion of a future revision of Directive 2004/38 on free movement of Union citizens, the Commission will examine the thresholds to which these notions are connected.
Well, let's focus on the relatively good news; the Surinder Singh route has not been abolished outright.
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.

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

Post by noajthan » Tue Feb 02, 2016 1:28 pm

secret.simon wrote:Excellent research, pochaco.

...

Well, let's focus on the relatively good news; the Surinder Singh route has not been abolished outright.
It will be interesting to see how the proposals sit with other related free movement & Surinder case law;
eg on the purpose of the relocation, timelines spent in a.n.other state, regarding split households in multiple member states, dependents/dependency & etc

And these proposals are quite noticably restrained.
For example, no mention of dependent parents/grandparents nor unmarried partners (nor indeed any other extended family members).
All that is gold does not glitter; Not all those who wander are lost. E&OE.

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

Post by secret.simon » Tue Feb 02, 2016 1:44 pm

Obie wrote:In the absence of a treaty change, the CJEU will simply struck it down.
Thank God for the Lisbon Treaty. The simplified revision process, which applies to Part III of the TFEU requires only the European Council's approval and ratification by all states. No other EU body has a formal say or veto, though of course there is communication behind the scenes.

As the free movement of people is in Part III, it is possible for revisions to be passed through that process.

Daniel Mulhall, Irish ambassador to the UK, spoke to the "Week in Westminster" the day before yesterday about how Ireland got the legally binding changes it wanted without an immediate treaty change. The relevant coverage starts at approximately 7 minutes into the audio.

Law may be a discipline, but politics is the art of the possible. And while the EU gives us law, it itself is a creation of politics.
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pochaco
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Re: Non-EEA spouses excluded from EEA-route under EU-UK deal

Post by pochaco » Tue Feb 02, 2016 1:59 pm

I am particularly concerned about this, as I am an EEA national currently waiting for my PR certificate and once I have it I will apply for a residence card (EEA2) for my non-EEA wife who is currently in the UK on a 6-month leave as a visitor.

How much time we have got to apply under the current rules if the leaders of the member states accept this proposal at their upcoming summit in mid-February. We wouldn't qualify under British immigration law.

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

Post by Obie » Tue Feb 02, 2016 2:10 pm

I am lost Secret Simon.

There are proposal to amend directive. Yes union law allows that. There is no need to change treaty to do that.

In Metock the court relied on the Treaty, to say that the Freemovement of an EU citizen will be impaired. In Singh the same was done, in OB C-456/12 the same.

Even though secondary law required the family to be joining and accompanying the EU national, the court said that provision had to be read consistently with Primary law, which is the treaty.

Therefore in the absence of a change in the treaty it will amount to nothing more than a piece of paper.

I have alluded to the fact that Singh cannot be changed through directive as it is a right that derives not from primary law but directly from the treaty.


The proposal has to be accepted by all 27 memberstate and a revision has to be made to the directive. So it will not come into effect now.

In any event it is just a referendum gimmick, David Cameron knows and so does the state, that we are returning to the status quo .

Be in no doubt, Surinder singh will not change.

They may change directive to limit the family that can benefit from EU law. But that limit has to be consistent with the treaty, as the court will struck it down if it found that it imposes an hindrance to the Treaty rights of an EU citizen..
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 » Tue Feb 02, 2016 2:11 pm

You should be able to sponsor your non-EEA spouse immediatly, provided you are exercising treaty rights. You don't need PR.

The changes do not seem to target EEA citizens, but British citizens taking advantage of the Surinder Singh route. I doubt you have anything to fear. You will have to prove that yours is not a marriage of convenience though.

As regards how quickly these changes can be brought into action, you will get many different answers. My opinion is that the changes are changes in the interpretation and language of directives and judicial opinions and hence likely will not require full treaty change. These changes can therefore be implemented into UK law almost as soon as a new directive is promulgated from Brussels.

But from a political point of view, I would expect such changes to be implemented either in April (the traditional date for changes to Immigration Rules) or in June, the expected date of the EU referendum.
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Re: Non-EEA spouses excluded from EEA-route under EU-UK deal

Post by Obie » Tue Feb 02, 2016 2:12 pm

pochaco wrote:I am particularly concerned about this, as I am an EEA national currently waiting for my PR certificate and once I have it I will apply for a residence card (EEA2) for my non-EEA wife who is currently in the UK on a 6-month leave as a visitor.

How much time we have got to apply under the current rules if the leaders of the member states accept this proposal at their upcoming summit in mid-February. We wouldn't qualify under British immigration law.
Don't think you should loose sleep yet. Not much, if anything will be changing in the short time .
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 » Tue Feb 02, 2016 2:15 pm

Obie wrote:Therefore in the absence of a change in the treaty it will amount to nothing more than a piece of paper.
The provisions that I referenced are provisions to amend the treaties, not merely the Directives.
Obie wrote:In any event it is just a referendum gimmick, David Cameron knows and so does the state, that we are returning to the status quo .
Such a statement would be delightful fodder for the Leave campaign.
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Re: Non-EEA spouses excluded from EEA-route under EU-UK deal

Post by Obie » Tue Feb 02, 2016 2:17 pm

secret.simon wrote:
But from a political point of view, I would expect such changes to be implemented either in April (the traditional date for changes to Immigration Rules) or in June, the expected date of the EU referendum.
April, are you ok. We are talking about a change which needs to be agreed by 27 states, then if agreed changes made to directive and then memberstate are given time to implement .

Simon it does not assist the forum or member who may be anxious , for you to say these things.

Please desist for saying this.
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Re: Non-EEA spouses excluded from EEA-route under EU-UK deal

Post by Obie » Tue Feb 02, 2016 2:22 pm

secret.simon wrote:
Obie wrote:Therefore in the absence of a change in the treaty it will amount to nothing more than a piece of paper.
The provisions that I referenced are provisions to amend the treaties, not merely the Directives.
Obie wrote:In any event it is just a referendum gimmick, David Cameron knows and so does the state, that we are returning to the status quo .
Such a statement would be delightful fodder for the Leave campaign.
I can't find any provision in the treaty that says a fundamental change in the treaty don't require approval of all memberstate .

Even David Cameron is mindful of the fact that there is going to be no treaty change. He is hoping for a binding understand , which will be included in any future treaty change.

Things like change in the 4 freedoms needs ratification by the 28 member states. Many of David Cameron ' s proposal don't need treaty change.

But things like changes of Surinder Singh , surely will, or migrant workers being denied benefits will require change.
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secret.simon
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Re: Non-EEA spouses excluded from EEA-route under EU-UK deal

Post by secret.simon » Tue Feb 02, 2016 2:23 pm

While April is not probable, it is certainly possible. The fact that the President of the European Council has put forward these ideas suggests that there is likely a political acceptances among the heads of government of these proposals being accepted and being implemented either via a directive or a protocol in the short term, pending a treaty change.

The refugee crisis has changed the political mood music in the EU in the short-term and I doubt that David Cameron is going to wait for it to change.

I would rather be anxious and realistic than hopeful and idealistic. And I am sure that people on these forums are the better for having a realistic voice that deals with what is likely. Speaking only hopeful points of view may give people a false sense of perspective.
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Re: Non-EEA spouses excluded from EEA-route under EU-UK deal

Post by secret.simon » Tue Feb 02, 2016 2:29 pm

Obie wrote:I can't find any provision in the treaty that says a fundamental change in the treaty don't require approval of all memberstate .
I did not say that. What I said was that a treaty change will require just two levels of approvals; the European Council (all the heads of government across the EU) and ratification by all 28 states. The Commission and European parliament will have no role to play.

Generally, in European constitutions, the heads of government are also the people who ratify treaties and hence that stage is a formality in most EU states.
Obie wrote:But things like changes of Surinder Singh , surely will, or migrant workers being denied benefits will require change.
And those are the things that will decide the referendum. So, if the EU tries deception in not making changes to the treaties, there will be a lot of bad blood towards the EU, a loss of faith towards the EU (not that it has much faith at the moment) and likely calls for another referendum. A dishonest EU is not something that most people even on these forums would want to be a part of.
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Re: Non-EEA spouses excluded from EEA-route under EU-UK deal

Post by Obie » Tue Feb 02, 2016 2:41 pm

I strongly believe , as I said before, that British People , or English people love themselves and their economic wellbeing more than they hate migrant.

I am sure when they go to the polls , they will think about Scotland likely to seceded from the Union , and that means a lot to them, the potential detriment to good Friday agreement in Northern Ireland. Republican will never accept an EU border in Irish Republic , The deputy first minister has already mentioned the economic disaster that will befall northern Ireland if it was forced to leave EU.


There is so much at stake, not to mention Gibraltar. The empire or what's left of it, is at stake and giving their empire mentality, I think as the recent polls indicates, a majority will vote to stay, with or without a deal.
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Re: Non-EEA spouses excluded from EEA-route under EU-UK deal

Post by secret.simon » Tue Feb 02, 2016 2:48 pm

Hope springs eternal in the human breast - Alexander Pope.

I am not as sanguine. While the British are (or rather were) famously phlegmatic, the events in Europe have made some of them choleric with rage. And I am filled with melancholy at the prospects, neither of which look appealing.
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Re: Non-EEA spouses excluded from EEA-route under EU-UK deal

Post by BritCits » Tue Feb 02, 2016 3:04 pm

Wrote a blog piece on this. Your views/corrections welcome.

link removed.

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

Post by secret.simon » Tue Feb 02, 2016 5:48 pm

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.

Taking the same approach to interpretation, the second clause is almost meaningless. All that needs to be done is that the EEA citizen should marry the third country national in that third country or indeed, any non-EEA country, while being resident in his home country. Then if he exercises him right to free movement and then invites his spouse along, they did not get married when the EEA citizen was exercising treaty rights, but before.

These documents are not worth the bytes they occupy on the server's hard drives or are transmitted as across the Internet.
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Re: Non-EEA spouses excluded from EEA-route under EU-UK deal

Post by Obie » Tue Feb 02, 2016 6:18 pm

Just want the Referendum to be over . I am fed up of the effect this issue is having on the amount I get in euro .

I am happy with the proposal having read it through . The changes are not as drastic as I had envisage. I hope the memberstate will agree and we will get a deal.


As I said it is more in the UK ' S interest to stay, than the EU.

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.
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