Channel Islander or Manxman? Loophole!

[Ben]

Recently the UK EEA regs were changed. All references to "United Kingdom national" have been scrubbed and replaced with "British citizen".

This opens up a small loophole that, while perhaps largely irrelevant for most, may benefit the family member(s) of a small number of Channel Islanders or Manxmen in specific and unique circumstances.

People from these British Crown Dependencies, which are outside the UK and are not part of the European Union, are British citizens and are therefore EU citizens but *importantly* they do not have the right of employment or establishment in EU member states. British citizens from these territories are not considered EU nationals for the purpose of Directive 2004/38/EC and transposing national legislation throughout the EU. Their passports are endorsed accordingly.

However, the recent change in the UK EEA regulations means that any British citizen, including those without the right of employment or establishment in EU member states, who has worked or been self-employed in Europe, is entitled to be treated as an EU national for the purpose of the UK EEA regulations should he choose to subsequently move to the UK. It also means that the parent of a British citizen child (who does not have the right of employment or establishment in EU member states) has the right to live in the UK with the child.

Example 1:
A British citizen woman from the Isle of Man, who has never lived in the UK, is married to a Mexican husband. The couple live in France where the woman is employed, with the relevant permission from the French authorities. The couple decide to move to the UK. The woman is considered an EU national for the purpose of the UK EEA regulations and the husband is entitled to live and work in the UK, without a visa or any fee and under the full protection and conditions of the UK EEA regulations, even though the wife has never exercised an EU treaty right in any member state, nor has she the right of employment or establishment in EU member states.

Example 2:
A child is born in Nigeria to a British citizen father from Jersey and a Nigerian mother. Neither the child nor the father have ever lived in the UK. The mother (with the child) moves to the UK in accordance with the UK EEA regulations where the mother is entitled to live and work, without a visa or any fee and under the full protection and conditions of the UK EEA regulations, even though the child has never exercised an EU treaty right in any member state, nor has the child the right of employment or establishment in EU member states.

Example 3:
A woman from Fuzhou in China is naturalised in Geurnsey, having lived there for several years, arriving via France as an unlawful entrant. She moves to Ireland where she finds employment. She marries a Chinese national man who is in Ireland without permission, having entered via Northern Ireland from Britain, where he is a failed asylum seeker. After six months, the couple decide to move to the UK. The woman is considered an EU national for the purpose of the UK EEA regulations and the husband is entitled to live and work in the UK, without a visa or any fee and under the full protection and conditions of the UK EEA regulations, even though the wife has never exercised an EU treaty right in any member state, nor has she the right of employment or establishment in EU member states.

[fysicus]

Unfortunately, because directive 2004/38 doesn't apply to the Isle of Man and the Channel Islands, people from these territories do not have freedom of movement rights, and therefore the first step, moving to another EU country and have your family members join you there under EU law is already blocked.

These people cannot exercise treaty rights in any country!

This is independent of any particular wording of the UK implementation of this directive.

What needs to happen first, is that the people of the Isle of Man and the Channel Islands give up their island mentality of isolationism and become more cosmopolitic.
And to be honest, I think the people of the British Isles should do the same!

[keffers]

To be honest - that last comment is hilarious.

In terms of being cosmopolitic (is it a word) and isolationism the people of the British Isles are lights years ahead of almost every single country from which people seek to enter using the EU route.

That's why its such a popular destination - unlike say...

[Ben]

Unfortunately, because directive 2004/38 doesn't apply to the Isle of Man and the Channel Islands, people from these territories do not have freedom of movement rights, and therefore the first step, moving to another EU country and have your family members join you there under EU law is already blocked.

These people cannot exercise treaty rights in any country!

This is independent of any particular wording of the UK implementation of this directive.

Perhaps I didn't explain correctly. Put simply, a Channel Islander or Manxman must first persue economic activity in an EU member state (other than the UK), to activate a right to move to the UK in accordance with the UK EEA regs.

He will have to obtain permission, as required, from the authorities of the member state he goes to, however, since this initial movement would not be in accordance with the Directive.

E.G., Ireland would permit it unconditionally, on account for the Common Travel Area agreement, other member states may require him to seek permission.

The subsequent move to the UK would be in accordance with the EEA regs, due to the recent change in the wording.

[Directive/2004/38/EC]

Recently the UK EEA regs were changed. All references to "United Kingdom national" have been scrubbed and replaced with "British citizen".

Very interesting! Which revision changed this? What are the two official definitions of these terms?

[Ben]

The latest, early last month, as I recall. Can't check properly as lying in bed on idiot-phone. Can't sleep.

"UK National" always meant a British citizen who has the right of employment and establishment in EU member states. (British citizens not from the Channel Islands or Isle of Man, with no qualifying connection with the UK).

Sentences like "a British citizen who is a UK National for the purpose of the EEA regulations" were common.

Now it looks like all British citizens are equal, in the UK's EEA regs at least.

[Obie]

The UK regulation only previously provided for UK national who had exercised Treaty right in another memberstate, under Surinder Singh Priniciple.

It was envisaged that only UK national can benefit from this as they are the only one that can move to memberstate under the freemovement provision.

Then came Zambrano, which the UK has to apply to all British Citizen in order for them not to fall foul of EU non discrimination provision.


It remain that so far as the Singh principle are concerned it will only apply to UK national so no need to make distinction. However Zambrano will have to apply to the wider category. Someone in the Isle of Man cannot use Singh as they dont have free movement rights.

It would look bad for classes of national to be stipulated in legislation. However i believe in practice, the UK will see to it, if these islander went to Ireland, that they dont benefit from Singh, and i believe they will be within their right to do so.

However under Zambrano, they will have difficulties in making these distinction.

[Ben]

Someone in the Isle of Man cannot use Singh as they dont have free movement rights.

It would look bad for classes of national to be stipulated in legislation. However i believe in practice, the UK will see to it, if these islander went to Ireland, that they dont benefit from Singh, and i believe they will be within their right to do so.

The provisions of Singh et al don't apply to British citizens from the Isle of Man and the Channel Islands, since these judgements dealt specifically with EU nationals who exercised EU treaty rights in another member state - something which the British citizens in question are unable to do.

However, regardless of the ECJ judgements, the UK has now enshrined in legislation:

Family members of British citizens
9.—(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a British citizen as if the British citizen were an EEA national.
(2) The conditions are that—
(a) the British citizen is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom; and
(b) if the family member of the British citizen is his spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in that State before the British citizen returned to the United Kingdom.
(3) Where these Regulations apply to the family member of a British citizen the British citizen shall be treated as holding a valid passport issued by an EEA State for the purpose of the application of regulation 13 to that family member.

It's pretty clear.

[Directive/2004/38/EC]

The UK is required to transpose the Directive, and any case law (such as Singh) in British law (one way or another).

This change seems to fall under the following principle:

Article 37 - More favourable national provisions

The provisions of this Directive shall not affect any laws, regulations or administrative provisions laid down by a Member State which would be more favourable to the persons covered by this Directive.

[Directive/2004/38/EC]

I do not want to hijack this thread, but a (somewhat) related topic is that of Gibraltar. It is kind of the UK, but kind of not.

http://www.immigrationboards.com/viewto ... 499#739499 is part of a very interesting thread.

I also remembered back to the Immigration Control (Amendment) Act 2008 from Gibraltar (which I have filed http://eumovement.wordpress.com/eu-coun ... d-kingdom/). So why is it interesting? Well look at how they implement the Surinder Singh decision:

Family members of Gibraltarians.

55I.

(1) If the conditions in subsection (2) are satisfied, this Part applies to a person who is the family member of a Gibraltarian as if the Gibraltarian were an EEA national.

(2) The conditions are that–
(a) the Gibraltarian is residing in an EEA State as a worker or self-employed person before returning to Gibraltar;
(b) if the family member of the Gibraltarian is his spouse, the parties are living together in the EEA State or had entered into the marriage and were living together in that State before the Gibraltarian returned to Gibraltar.

(3) Where this Part applies to the family member of a Gibraltarian the Gibraltarian shall be treated as holding a valid passport issued by an EEA State for the purpose of the application of section 55L to that family member.

It looks to me like standard British people are not covered by Surinder Singh in entering Gibraltar. Why? Because they enter as full EU citizens the normal way?

That is certainly what UKBA says about Gibraltarians who enter the UK:

Thank you for your e-mail of 2nd November, in which you ask for any documents that
discuss the status of Gibraltar with respect to European Free Movement law and
why Gibraltarians should be admitted as EU nationals. Your request has been
handled as a request for information under the Freedom of Information Act 2000.
We believe that in relation to caseworker guidance, the information you have
requested is already reasonably accessible to you. It can be found on the UKBA
website at the following links

[Obie]

Well as i said before, Isle of Man is not part of the European Union, and its citizens are not Union Citizens. They are British Citizens, but their passport is different from other British National. They have no automatic Right to work in Ireland or other part of the European Union. They have the freedom to move and reside in other member state, but that is where the right ends.Protocol 3 of the UK act of accession, permits trade of Manx goods without tarrif, but that is where their rights ends.

As i said before, they are not free to work in the European except they go through the hurdle of obtaining work permits. Even in Ireland (Republic) they are not allowed automatical right to work.

They cannot invoke the directive or other EU instrument in court.

Yes the UK have absolute right to make its national legislation more generous, but it still remains that the rights of these people, is not one that originates from EU law.

Gibraltar however is part of the European Union, and its citizens are Union Citizens, and they beneift from the free movement provisions.

[Ben]

Well as i said before, Isle of Man is not part of the European Union, and its citizens are not Union Citizens.

The Isle of Man and the Channel Islands are not part of the United Kingdom nor the European Union, but its' peoples are British citizens and therefore are EU citizens, by definition (see Treaty of Maastricht).

They are British Citizens, but their passport is different from other British National. They have no automatic Right to work in Ireland or other part of the European Union.

The have the right of residence and employment in Ireland and have had so for more than 800 years - long before the creation of the EU.

They have the freedom to move and reside in other member state, but that is where the right ends.

No. They have no free movement rights in EU member states.

As i said before, they are not free to work in the European except they go through the hurdle of obtaining work permits.

Correct. Appropriate permission from the relevant authorities would be required. I suspect however that, in practice, this may not actually happen.

Even in Ireland (Republic) they are not allowed automatical right to work.

All British citizens have the right of residence and employment in Ireland. See Common Travel Area agreement.

Yes the UK have absolute right to make its national legislation more generous, but it still remains that the rights of these people, is not one that originates from EU law.

Well, it certainly originated from EU law, since the right of a UK national to move to the UK from another member state, in accordance with the Directive, is the result of Singh. The law that states that this now applies to British citizens with no EU free movement rights, is a UK law and is an enhancement of the original ECJ ruling(s) because the UK is now extending to British citizens who are not UK nationals for the purpose of employment or establishment in other member states.

Gibraltar however is part of the European Union, and its citizens are Union Citizens, and they beneift from the free movement provisions.

Channel Islanders and Manxmen are EU citizens too! Just without the right of employment or establishment in other member states. See Protocol 3, Article 2, to the UK's Act of Accession to the EU.

[Obie]

Well i will try and respond to some of you post, and if i find it necessary will respond further when i get home.

The thing with these islander is that, it is not all that glitters is gold.

Firstly, the UK will not issue them with passport that confers right to Union Citizenship, unless their parents or grandparents have resided in any part of the United Kingdom for a period of 5 years preceeding the birth of the Manz Citizen. This shows that the UK authority has made a clear distinction between these entity of about 90,000 people and the Rest of the UK. They are not Union Citizen, even the manz authorities themselves recognis this, as they are not national of a memberstate. The United Kindgom of Great Britain and Northern Ireland is a Memberstate, and not Isle of man. If the United Kindgom itself seeks to limit there citizenship rights, this speak volumes, i dont think the EU should be asked to do otherwise.
Any argument that these people and United Kingdom Nationals have similar rights, or that they are Union Citizen is doomed.

Manz Citizen can move to and live in other states, but they cannot work. They have freemovement of goods and Trade. These goods cannot move themselves, therefore there is some freemovement of person. However there are no freemovment of Worker or Establishment, as i already stated.

Ireland may confer the right to work to these people, i have to confess, i dont know about this or have any legislative provision in front of me to confirm this. But i trust you are right.However these rights does not stem from the EU, but Irish national provision.

The European Union Signed an Agreement with the United Kingdom of Great Britain and Northern Ireland, not other UK dependant Territory.
Gibraltar is different. They joined the EU via the Single European Act 1972 and the British Treaty of Accession 1973.

Therefore as is said, if the UK see fit to include them in the EEA regulations, i am very happy about this. Although i am very suspicious that is what the UK authority are seeking to do. I am for liberal immigration, so i will love to see these people and their 3rd country national enjoying freemovement rights.

However these rights does not stem from Zambrano neither Singh, but a more favourable UK national provision, that have decided to drop the discriminatory policy , an put them on some equal footing to United Kindgom National. They cannot claim rights under the Dirtective or EU treaty in Court, as it does not apply to them .

It is quite a complex topic, but at the end of the day, the answer can only be one. I really appreciate the fact you pointed this out.

[Ben]

Well i will try and respond to some of you post, and if i find it necessary will respond further when i get home.

The thing with these islander is that, it is not all that glitters is gold.

Firstly, the UK will not issue them with passport that confers right to Union Citizenship, unless their parents or grandparents have resided in any part of the United Kingdom for a period of 5 years preceeding the birth of the Manz Citizen.

You're not listening Obie, again. People of the British Crown Dependencies are British citizens. British citizens are European Union citizens by definition, since British citizens are citizens of the United Kingdom and Article 8(1) of the Treaty of Maastricht says "Every person holding the nationality of a Member State shall be a citizen of the Union.". The difference is, British citizens from the British Crown Dependencies, unless they have a qualifying connection with the UK, do not benefit from EU free movement rights. It's a clause in Protocol 3 of the UK's Act of Accession. But it doesn't mean they're not EU citizens.

This shows that the UK authority has made a clear distinction between these entity of about 90,000 people and the Rest of the UK.

Well, that's because they're is a distinction - Protocol 3 says so.

They are not Union Citizen, even the manz authorities themselves recognis this, as they are not national of a memberstate.

Paste where you think it says that.

The United Kindgom of Great Britain and Northern Ireland is a Memberstate, and not Isle of man.

Correct, and people of the Isle of Man, and of the Channel Islands, are citizens of the EU member state named United Kingdom of Great Britain and Northern Ireland.

If the United Kindgom itself seeks to limit there citizenship rights, this speak volumes, i dont think the EU should be asked to do otherwise.

You're not getting it. This "loophole" does not ask the EU to lift any limit or otherwise of the citizenship of Manxmen or Channel Islanders.

Any argument that these people and United Kingdom Nationals have similar rights, or that they are Union Citizen is doomed.

Only by those who cannot read, apparently.

Manz Citizen can move to and live in other states

Not under the scope of EU free movement rights they can't.

but they cannot work. They have freemovement of goods and Trade. These goods cannot move themselves, therefore there is some freemovement of person. However there are no freemovment of Worker or Establishment, as i already stated.

You're confusing yourself here, Obie.

Ireland may confer the right to work to these people, i have to confess, i dont know about this or have any legislative provision in front of me to confirm this. But i trust you are right.However these rights does not stem from the EU, but Irish national provision.

A good starting point.

The European Union Signed an Agreement with the United Kingdom of Great Britain and Northern Ireland, not other UK dependant Territory.

Territories controlled by member states have certain, very varied, special relationships. France, The Netherlands, Spain - and more - all have overseas territories with various stipulations in their relationships with the EU.

Gibraltar is different. They joined the EU via the Single European Act 1972 and the British Treaty of Accession 1973.

As above.

Therefore as is said, if the UK see fit to include them in the EEA regulations, i am very happy about this. Although i am very suspicious that is what the UK authority are seeking to do. I am for liberal immigration, so i will love to see these people and their 3rd country national enjoying freemovement rights.

However these rights does not stem from Zambrano neither Singh, but a more favourable UK national provision, that have decided to drop the discriminatory policy , an put them on some equal footing to United Kindgom National. They cannot claim rights under the Dirtective or EU treaty in Court, as it does not apply to them .

It is quite a complex topic, but at the end of the day, the answer can only be one. I really appreciate the fact you pointed this out.

To be honest, it's really quite simple: Before the recent change in wording, a British citizen from the British Crown Dependencies was not treated as an EU national for the purpose of the UK EEA regs upon moving to the UK following pursuance of economic activity in another member state of the EU, and now he is.

[Obie]

Well i will make it simple. Manz Citizen who are British Citizen are not Union Citzen, if they dont meet the Hereditary condition, of there parents or Grandpatents having resided in the UK for 5 year period.

If the UK is making allowance for Manz Citizens who meeet the Hereditary condition, then they are right to do so, and the right will stem from EU law. However if it is general, then it is not EU law but favourable national provision. That is very welcome indeed. To say that manz citizen without the hereditary condition are Union Citizen simply wrong. I believe Union Citizen are covered by the treaty and can move freely within the membetstates. Manz citizens cannot,without meeting the hereditary requirement. So they are not Union Citizen. If they are union citizen, it will be impermissible to not allow them the freemovement of worker around the EU.

[Ben]

[Directive/2004/38/EC]

Ireland may confer the right to work to these people, i have to confess, i dont know about this or have any legislative provision in front of me to confirm this. But i trust you are right. However these rights does not stem from the EU, but Irish national provision.

Lets assume that the Manz person can work in Ireland legally.

Because they have working in another EU member state, the recently changed to be more generous than normal UK law says that they can now use Regulation 9 to enter the UK and live easily: They are a British Citizen and they have been working in another EU member state.

I think that is Ben's main point.

Clearly this is of benefit primarily if they want to move to the UK. It does not assist if they want to move to Germany or Norway.

[Ben]

Thanks Directive! Phew.

[Obie]

Paragraphs 2 and 3 of the Schedule to these Regulations give effect to the ECJ’s decision in Zambrano by amending regulations 11 and 15A of the 2006 Regulations in order to confer rights of entry and residence on the primary carer of a British citizen who is residing in the United Kingdom and where the denial of such a right of residence would prevent the British citizen from being able to reside in the United Kingdom or in an EEA State. By virtue of regulation 2(1) of the 2006 Regulations an EEA State is defined as a member State of the European Union (other than the United Kingdom), Norway, Iceland, Liechtenstein or Switzerland.

On a proper reading, this changes has no effect on Regulation 9, or the definition of United Kingdom national. It simply ensure that regulation 11 and 15A confers right on the primary Carer of British Citizen and not just United Kingdom national, so as to ensure that all British Citizen, whether or not they have treaty rights are treated equally, which is consistent with the Charter of Fundamental Rights.

Therefore the definition of United Kingdom, national as:

United Kingdom national” means a person who falls to be treated as a national of the United Kingdom for the purposes of the Community Treaties.

Remains unchanged, and has not been ammended.

Essentially a Manx Citizens cannot benefit from Surinder Singh.The Primary carer of a Manx Citizens who is a third country national, residing in the UK or who is abroad and wanting to enter the UK can benefit. This will fulfil the purpose of the EEA regulation, and in some respect Zambrano, as to refuse the primary carer the right to reside will result in the United Kingdom child having to live the UK or the whole of the memberstate, and in the case of a Manz citizen (British Citizen) having to leave the UK or Manz.

For the benefit of all. The definition of United Kingdom national has not been ammended, and it is still applicable to Regulation 9, which enable the family member of a United Kingdom national to benefit from the whole of the EEA regulation and the ECJ judgement of Surinder Singh and Eind.

I apologise for not going through it before engaging in this debate, as it would have saved us all, a lot of time and energy.

British Citizen is only applicable for regulation 11 and 15(A).

[Jambo]

Obie,

The SI you referred to says

References to “United Kingdom national”
7.—(1) In regulation 2(1) delete the definition of “United Kingdom national”.
(2) For the references to “United Kingdom national” in regulations 2(1), 4(4)(a), 5(6) and 9 substitute references to “British citizen”.

.

[Ben]

no effect on Regulation 9, or the definition of United Kingdom national.

Remains unchanged, and has not been ammended.

Essentially a Manx Citizens cannot benefit from Surinder Singh.

For the benefit of all. The definition of United Kingdom national has not been ammended, and it is still applicable to Regulation 9

British Citizen is only applicable for regulation 11 and 15(A).

Obie. For the love of god would you stop posting this tripe. Your inability to read effectively and understand information is your own business. I can't help you, lord knows I've tried. But please think of how posting ill-truths affects other forum members, who may see your status of moderator as meaning that you know what you're talking about.

Read this:

References to “United Kingdom national”

7.—(1) In regulation 2(1) delete the definition of “United Kingdom national”.

(2) For the references to “United Kingdom national” in regulations 2(1), 4(4)(a), 5(6) and 9 substitute references to “British citizen”.

The UK Immigration (European Economic Area) Regulations 2006 now no longer contain the term United Kingdom national anywhere whatsoever. Any place where it was present is now replaced with British citizen (except for regulation 2(1), where the sentence is deleted). Channel Islanders and Manxmen are British citizens.

[Obie]

This was an issue of oversight on my part and i thank you Jambo for pointing it out.

In all legislative provision, definition, or changes to it are usually placed at the begining of the legislative provision. We are all trying to figure out the meaning and exact scope of this provision, as it is not in full conformity with EU treaty and other provision.

There is no reason to get rude or offensive to myself or others Ben. I will hate to see you get reprimanded for such action. We are not in a market place, we are not fighting against each other. We can disagree without being offensive.


There are errors you made on other forum, which i have corrected, without holding it against you.

So please it would be nice if you cut the offensive gargon.

[Jambo]

Also note that according to the explanatory memorandum, the reason for the change is McCarthy and not Zambrano

7.10 Paragraph 7 of the Schedule to the Regulations amends the reference in the 2006 Regulations to "UK nationals" so that they refer instead to "British citizens". An amendment was made to the EEA Regulations in July 2012 to implement the ECJ's judgment in the case of McCarthy (C-434/09) in order to make clear that dual nationals are not normally able to exercise free movement rights in the countries of their citizenship. In the process of drafting guidance on these changes it became clear that this amendment- and the 2006 Regulations in general- should refer to "British citizens" rather than to "UK nationals" since only the former have the right of abode in the UK.

[Obie]

I appreciate you pointing this out.
I was seeking to find the reason for this change and it is very much appreciated that you have brought this up.
EU legislative provision has a straight meaning, whiles UK legislative provision are read in accordance with its meaning and it purpose which it seek to achieve.

This is a pretty new provision which has bearly made its way to the higher courts for opinion. It has not been tried and tested, and therefore there is no correct answer to it.

An oversight does not make someone stupid, perhaps in your world it does, not in the real world.

[Ben]

Obie,

I don't know who you think you are, but if you get down from your high horse for a minute, just try and think how frustrating it would be to have the same user, time and time again, coming on a thread arguing with you about something glaringly obvious - especially when the facts are presented on thread and in full, numerous times. It's what many people call "trolling".

Now if you think I've breached the forum rules in any way, feel free to report the offending post so a competent moderator can take appropriate action.

If you want to engage in any further off-topic debate, open a new thread in the appropriate section.