New EU deal: Free-movement rights gone?

[crunchycracker]

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 ?

The proposed draft:
"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.

[noajthan]

What's ridiculous about it?

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

We're only able to engage in this dialogue because of a common tongue, in this case English.

[nemerkh]

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?

[Richard W]

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?

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]

I resided there as a student continuously.
How can they backdate the law to then!!!
Plus what happens to us in the uk am not worried about latvia

[Richard W]

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.

Note that the first clause is:

1) Non-EU national do not have prior lawful residence in a member state before marrying an EU national.

Thus, though my non-EU national wife has permanent residence in the UK, because I married her before she came to Europe, she will lose her free movement rights unless she naturalises (and arguably endangers her original citizenship).

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.

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.

[s1120403]

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 ?

The proposed draft:
"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.

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...

[Richard W]

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?

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.

Be warned that EU directives are primary legislation.

[Richard W]

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...

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.

[crunchycracker]

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...

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.

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.

[chriskv1]

What are the chances that the CJEU/ECJ will agree to this ?
I mean why would the give the UK special status ? Sometimes the UK government just sounds like a spoiled entitled teenager throwing tantrums .

[nemerkh]

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...

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.

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.

Ok, so how about if a french national, marries a columbian studying in france and then move to the uk?

[Richard W]

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.

The basic freedom of movement was for workers, and their families were allowed to follow them. To quote 2004/38/EC:

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.

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.

It used to be perfectly possible for a spouse to come over under the host nation's immigration rules. I can remember, in the late 1990's, a Frenchman bringing a Zimbabwean wife over as a fiancée and marrying and getting her ILR under domestic UK laws. I also remember a Spanish girl bringing a Malay husband over as a fiancé under domestic UK law, but getting his residence under EU laws so that he could start working and saving up for a house much quicker.

What has happened is that national laws have become much stricter, and therefore the EU law has offered an easier immigration route. I believe the EU law was only really intended to address movement within the EU, but it so happened that it has provided a way round the increasingly strict national rules.

[secret.simon]

Be warned that EU directives are primary legislation.

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.

This may be about to change. The Prime Minister will apparently be announcing a "sovereignty deal" in the House of Commons (I believe that at 3:30PM) that may (I am not sure) involve rewriting the rules by which EU laws apply in the UK. There is a possibility that the European Communities Act 1972 may be rewritten with something with a bit more backbone.

Lord Mance JSC remarked in a speech that because of the way the European Communities Act 1972 is written, "there are therefore few limits to the dominance of EU law" and in his speech contrasts it with both the UK legal position on the European Convention of Human Rights and the German position on EU law.

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. But be aware that the rules of the game will change irrespective of the outcome of the referendum.

[Richard W]

Ok, so how about if a french national, marries a columbian studying in france and then move to the uk?

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.

I'm having a bit of trouble with the question of whether an EU-national is established in his home country as a host state. I think I've given inconsistent replies. I now think it only becomes a host state if he has been established in an EEA country while he didn't hold its nationality.

[Obie]

David Cameron is proposing nothing of the above.

There are no propose changes to the European communities Act 1972.

There is no circumstance under which the new proposal will say EU law will not take precedent over domestic law.

David Cameron is proposing some kind of constitutional court like the kind in German, which will rule whether a particular provision of EU law has exceeded the limit placed on the treaty and hence exceed it's scope and therefore ultra vires.

It is so wrong when people come on this forum and suggest David Cameron is proposing to do something, which if done, will to all intense and purpose make the UK an unlawful entity with the consequences of it having no option but quit the EU.

The suggestion that Dave is creating a court to overturn eu law is nothing short of fantasy to the point of absurdity.

[357mag]

This is all still presuming married couples, how does it affect DR couples?
Or gays, consider this hypothetical one. A gay EU citizen establishes himself in Bulgaria and wants his Asian partner to join him. Bulgaria does not recognise registered partnerships so they will issue a visa type D as a family member, they just label the couple as if brothers in order to comply with EU rules. So they were never married or in a registered partnership. They will issue the Asian partner a residence permit within six months again to comply with the directive. These intended new rules seem to shut the door to them. They were not married before the EU citizen established himself and did not marry in the host state. Theres a bit of discrimination there I think which could see appeals to Brussels. Could even see discrimination laws in UK being broken.

[secret.simon]

Obie, unless you have seen an an advance copy of the speech (which I would love to see if you have it), you can't say with certainty that a rewrite of the 1972 Act will not be included. We will get to know in a few hours anyway.

[Obie]

I don't need to see cameron's speech. I have no interest in seeing it, but i certainly will know if there is a plan to amend or repeal the 1972 act. There is a process involved in legislative changes. Put in Queens speech, bill is published . Goes through various reading through the houses of parliament and them becomes law.

There are no such proposal ..


It is wholly misleading to suggest that there is.

I am content with you saying Cameron is working on some sought of sovereign bill.

There are no proposal to amend the 1972 act.

[secret.simon]

There is a process involved in legislative changes.

You don't say.

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.

That statement is there for a reason. I am not unaware of the legislative process and keenly follow it.

If such a proposal were to be in tomorrow's speech (hypothesis follows), it would be in the Queen's speech this year and given its constitutional importance, I fully expect the debate on it to last one parliamentary session (generally one year).

If the process is initiated in June 2016, I expect it to end and the law to be enacted in May 2017.

If you wish, I can explain the legislative process in great detail, but it will probably bore the pants off everybody else. Here is an oversimplified summary from the parliament.uk website for those interested.

[Richard W]

This is all still presuming married couples, how does it affect DR couples?

It's a complete can of worms. If a marriage before the non-EU partner comes to the EEA disqualifies, and de facto relationships count as marriages, ECOs will want to establish that there was a de facto relationship before they came to the EEA!

I'm wondering if the communications have the wrong conjunction in the conditions. What if the proposal is in fact "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 and who marry a Union citizen only after the Union citizen has established residence in the host Member State."

Ignoring other family members, this should mean that an EU national who has established himself in a host member state would be treated as a citizen of the host member state unless his spouse already has lawful residence in a member state. This makes a lot of sense. It preserves freedom of movement within the EU, and also preserves the right of mixed (EU and non-EU) couples living outside the EU to move to (or visit) a state of which the EU partner is not a national. Note that Surinder Singh survives!

[357mag]

It's a complete can of worms. If a marriage before the non-EU partner comes to the EEA disqualifies, and de facto relationships count as marriages, ECOs will want to establish that there was a de facto relationship before they came to the EEA!

That nice and clearly explained Richard, thank you. So, my filpino partner has to prove our relationship before she joins me in BG and is considered my spouse, And I have established myself in BG before she moves to be with me although our relationship has existed for more than two years, so we beat the new propose amendments. phew.

[crunchycracker]

Ok, so how about if a french national, marries a columbian studying in france and then move to the uk?

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.

I'm having a bit of trouble with the question of whether an EU-national is established in his home country as a host state. I think I've given inconsistent replies. I now think it only becomes a host state if he has been established in an EEA country while he didn't hold its nationality.

I agree with RichardW that the law is being extremely vague. Suppose that the Columbian spouse is living in France legally, and married a French Citizen (Marriage is recognised and is valid under French Law), then the French Citizen can bring the Columbian spouse to another EU country by exercising his treaty rights. However if he wished to return to his own country, then back to the 2 clauses:

1) non-EU spouse lived in EU legally (met)
2) couple were married before EU citizen established residency in 'host country' (vague)

Vagueness lies in whether France 'host country' or 'home country' for the French citizen. I would think that due to the 'vagueness' of the law, in order for the French citizen to bring his columbian spouse back to France only under the following circumstances:

1) They must meet France's national immigration law on bringing non-French spouses into France, i.e. not via treaty rights

2) France being the home country can also act as a 'host country' and since they were married before they move back to France, the French citizen can use his treaty rights to bring the non-EU spouse back to France

[crunchycracker]

Ignoring other family members, this should mean that an EU national who has established himself in a host member state would be treated as a citizen of the host member state unless his spouse already has lawful residence in a member state. This makes a lot of sense. It preserves freedom of movement within the EU, and also preserves the right of mixed (EU and non-EU) couples living outside the EU to move to (or visit) a state of which the EU partner is not a national. Note that Surinder Singh survives!

I think that's exactly what the law Cameron is trying to prevent - it is currently easier for EU citizens to bring in non-EU spouses than British Citizens and Cameron is trying to tweak the law such that UK's immigration laws will also on the EU citizen's ability to bring in non-EU spouses into the host member state.

If the "OR" was changed to "AN", then it will still be easier for EU citizens to help their non-EU spouse in the UK to get residency rights but British Citizens still have to meet the minimum income threshold which I believe is the crux of Cameron's problem.

[Richard W]

It's a complete can of worms. If a marriage before the non-EU partner comes to the EEA disqualifies, and de facto relationships count as marriages, ECOs will want to establish that there was a de facto relationship before they came to the EEA!

That nice and clearly explained Richard, thank you. So, my filpino partner has to prove our relationship before she joins me in BG and is considered my spouse, And I have established myself in BG before she moves to be with me although our relationship has existed for more than two years, so we beat the new propose amendments. phew.

Clearly I didn't explain it well. Taking the stated condition (i.e. with 'or'), ECOs would want to establish the prior de facto relationship so that they can say that the non-EEA national has no freedom of movement rights.

In general, the last thing you want to do is to establish yourself in a host state before the non-EEA national joins you, unless you want your unification rights to be dictated by national law. (I've read that Italian national law is welcoming towards immigrant spouses - at least, for Italians.)