New EU deal: Free-movement rights gone?

[Obie]

I beg to differ .

The CJEU ruled that accompanying or Joining a Union Citizen has to be interpreted as covering a union citizen who found a family after entering a member state.

The court proceed on the bases of its case law, that there should be no hindrance on the treaty rights of a Union citizen , and that a union citizens will be deterred from moving, or having moved will be fettered from residing , if having resided they are unable to reside with the family they found in the new memberstate.

The court reason focused on a policy in community law, which is ensuring the protection of family life of national of the memberstate in order to eliminate the exercise of the primary rights of the union citizen.

I accept that the court was dealing with directive 2004/38EC, but it was at the same time reading this in accordance with the treaty provision on elimination of barriers to free movement.

[secret.simon]

I make no secret of my view on immigration.

I am a global minded person, who strongly believe that there we must be in a borderless world were people can move freely and join their families and live their lives happily.

I am not a dearly beloved, and I believe all human are equal.

I am of the view that most of this talk of immigration is centred around race and culture .

A borderless world has not existed since the evolution of the modern concept of a nation-state, which started with the Peace of Westphalia, which ironically dismantled most of the Holy Roman Empire, the last Pan European state.

If one wants a world without boundaries, one gets a world like that inhabited by ISIS, with feudal, tribal and familial loyalties, not national ones.

The concept of freedom of movement arose from the destruction and the ashes of WWII. There was a feeling of belonging to a common Europe, with common values. And I see it myself when I travel across Europe, when my tour guide in Prague is a half-Spanish, half-Dutch (no, he is not related to Nick Clegg) student attending an Erasmus programme in a German university, but living in and commuting from the Czech Republic. I have been to the European Parliament and Commission as a part of a university study group where British members of staff lament the lack of interest of British people in jobs and opportunities in Europe, except perhaps in retiring to Spain.

I doubt the founders of the EU in the 1960s and 1970s would have expected their treaty text to mean that half-brothers and nephews of somebody married to an EU citizen would get rights to reside across the EU, based on a dependency at some point in the past.

Some people worship the written word of the law as if it were Gospel, not realising that the law is worth nought if people do not respect it. And respect arises from a broad understanding of the circumstances.

It is worth remembering that what has been made can be unmade. The President of the EU Parliament has highlighted that this deal can be unmade by the EU Parliament or the CJEU. But so can the whole EU be unmade. I would suggest to them not to be haughty, but humble.

It is also worth remembering that the fortune for any political right swings like a pendulum. And the further to one side the pendulum is dragged, the more violent the swing against is generated.

[Obie]

I am not undertaking an academic exercise with you Simon.


I am merely expressing my views and desires, which I am sure you appreciate, I have the right to .


I know and accept the basis of the creation of the European Communities and then the European Union.

As much as I admire your effort in setting it out, I am not convinced it was necessary for my purpose.

[pelitezaki]

Do you think this will affect the current applications for residency by non EU spouse of EU citizen currently at the home office? and when can we expect these laws to come into effect? as I understand legislation would need to be passed and so on.

[nyabs]

Nobody really knows how these new proposed regulations are going to be rolled out but it is very unlikely that those who have already applied under the current regulations will be affected. The whole proposal is thoroughly confusing

[nemerkh]

Will this apply to people already in the uk? From my knowledge you cant backdate a law?
We have been here for 8 yrs (noneu&eu spouse) on our second eea2 how can they just refuse us??

[pelitezaki]

Will this apply to people already in the uk? From my knowledge you cant backdate a law?
We have been here for 8 yrs (noneu&eu spouse) on our second eea2 how can they just refuse us??

its is a worry as I am EU and 2 little ones and my husband of 10 years non Eu recently moved to UK and we recently applied for his residency for first time in Dec and now all this. Hope it doesn't affect us as a family.

[mkhan2525]

MM income requirement case for sponsoring a Non-EU national spouse will be heard in the Supreme court from Monday 22-24 Feb.

If the requirement is abolished or reduced to meet the requirement of the minimum wage then HO may not implement the changes on SS route since there would be no need to follow this route to bring over a spouse.

We should get a decision on the case by Autumn well before the new rules on SS are implemented.

[Richard W]

However, I don't have any hope that we can kill this proposal by voting to leave the EU. It has supporters, perhaps as misunderstood, in other members of the EU.

Richard W, did you mean to say that we can't kill this proposal by voting to remain in the EU? Logically, leaving will kill the whole freedom of movement idea, not just a minor detail.

EDIT: Further reflection and your latest post has helped clarify matters. What you fear (correct me if I am wrong) is that even if the UK were to leave the EU, freedom of movement within rEU will still be imperilled by these ideas which have arisen as a part of the UK-EU deal.

My expectation is that the UK will remain in the EEA, whatever the outcome of the referendum.

Of course, if we are in the EEA but not the EU, then the UK can act like Liechtenstein. The UK can suddenly declare an emergency and only allow people in to reside in accordance with UK rules. It will be fine for people to work according to EEA rules, so long as they can afford to commute. In the mean time, UK citizens will still be able to fully exercise their treaty rights in the EEA plus Switzerland less Liechtenstein.

[omonile]

Just wondering if the new rule will affect status quo of Permanent residency application?

[Obie]

I think it will be close to absurdity and outrageous , if UK citizens were free to work and live in other countries and other citizens are not free to work and live here.

Opinion polls, if they are true and correct , suggest as much as 55% of UK citizens want to live , work and claim benefits freely in Europe, but don't want European citizens to do the same.

I will find such a situation quiet bewildering , that citizens of the EU could be subjected to discriminating system whilst UK citizens are walking in Copenhagen or Hague or Berlin or Copenhagen, like everything is normal, the citizens of these nation will be treated as dogs in England.

I find this thought wholly incomprehensible and deeply disturbing.

[secret.simon]

The LSE has published an overview of the options of life after death.

Life after BREXIT: What are the UK’s options outside the European Union?

My overview of the various possible models is below.

The Norwegian/EEA model has the same disadvantages as full membership of the EU and no advantages.

The Swiss model, where the EU (28 members) and Switzerland (26 cantons) negotiate as equals is anathema to EU officials, who are used to laws applying automatically.

The UK may of course go commando (go it alone), in which case it would likely be subsumed into the NAFTA trade zone (currently US, Canada and Mexico). That is focussed on trade, but not free movement of people (Can you imagine Donald Trump and all those Mexicans? That would be fun).

Alternatively, the EU could offer the UK something on the lines of the Association Treaty with Turkey, which allows for free trade without free movement of people. They are unlikely to because there are more than enough people who would want to take up that offer for their own country (The FN-largest party in France, the AfD-third largest in Germany, the governing parties in most of Eastern Europe).

Personally, I agree with what I interpret are Richard W's fears; freedom of movement in the EU will be dead in the next five years, with or without a Brexit.

[Obie]

The EU will survive. Without free movement which is the foundation of the EU , there can be no EU. This is the founding principle of EU. The Refugee crisis will get better, Russia is putting pressure on Assad and EU feemovement principles will thrive again.

I am more concerned for UK..The UK is clearly on borrowed times.

When I see the polls that more Scott want to be in the EU than in the UK, it makes me wonder that this referendum is not just about UK in EU , but the survival of UK as a whole.

55% of Scott threaten to vote to leave the Union if they are forced out of the EU against their will. 60% of Scott has told pollster that they wish to stay in the UK.

Scotland makes up a 1/3 of the land mass of the Great Britain, has the trident , contribute more to the UK per head than any other UK region and has the Oli reserve in the North Sea. This is more of a problem for the UK than leaving the EU.

Scott will not sit back and shut up if they are taken out against their wishes. It just will not happen.

UK is facing it most testing times, since the demise of the empire.

[Wanderer]

The EU will survive. Without free movement which is the foundation of the EU , there can be no EU. This is the founding principle of EU. The Refugee crisis will get better, Russia is putting pressure on Assad and EU feemovement principles will thrive again.

I am more concerned for UK..The UK is clearly on borrowed times.

When I see the polls that more Scott want to be in the EU than in the UK, it makes me wonder that this referendum is not just about UK in EU , but the survival of UK as a whole.

55% of Scott threaten to vote to leave the Union if they are forced out of the EU against their will. 60% of Scott has told pollster that they wish to stay in the UK.

Scotland makes up a 1/3 of the land mass of the Great Britain, has the trident , contribute more to the UK per head than any other UK region and has the Oli reserve in the North Sea. This is more of a problem for the UK than leaving the EU.

Scott will not sit back and shut up if they are taken out against their wishes. It just will not happen.

UK is facing it most testing times, since the demise of the empire.

UK is stronger than you think, it largely controls the banking World, and that's what drives all this.

Scott of the Antarctic, a tragedy but basically an Epic Fail, Admunsen beat him. I suspect Scotland's posing would be more of a Captain Oates situation, "I have to to leave now, I may be some time......"

[357mag]

Does anyone think that bit might have been stuck in because the home office got beat by the Mc Carthy case? or the OB ruling? bit of bitchyness from the home office?
OK it looks nasty for the good people trying to get their loved ones with them using EU rules, maybe if the financial requirement thing was not so insurmountable for many then there would be no need.
But...there are legal precedents that cant be stomped on, but this agreement is also only binding if the referendum says we stay in, talking to people I think the vote will be we leave. The only hope I have is that the appeal on the 22nd will kill the financial requirement but if not then a change of government in a couple of years might see better treatment for brits to be with their families.
All a bit heavy stuff for my old brain but my heart and soul prays for those struggling with these nasty rules. May your families be with you soon.

[liksah]

I have a question for this already interesting discussion.

So assuming Brexit doesn't happen. Now, for non-EU spouses who never lived in the EU free movement is "dead" and technically national immigration rules apply.

Wasn't Directive 2004/38/EC enacted into every EU country's national legislation already? The treatment of 3rd country family members of EU nationals is already part of the system because "national legislation" issues article 10 residence cards under EU rules (which are present in national legislation). So how do things change?

Or am I going off in a totally wrong direction and national legislation means that .. lets do an example. German national with Chinese spouse (who never lived in the EU) wants to move to France. Now, France should apply national legislation. Which national legislation? The laws that they have to reunify are:
1. French citizens with their spouses?
2. Non-EU citizens with their non-EU spouses? (like Indian-Indian couples working in France)
3. EU citizens with their non-EU spouses? (the earlier used transposition of Directive 2004/38/EC)

So which one should France pick? I suppose the outcome the UK is hoping for is ... changing 3. to be more like 2. or 1. ? But which one?

In any case, I think the days of the simplified Schengen visa application for non-EU spouses might be gone. Article 10 residence cards also might no longer be issued. Over all the first people on the chopping block for free movement are non-EU spouses of EU nationals. Even those who never wanted to move to the UK. That's sad.

[nyabs]

The new proposed amendment to the freedom of movement for non EU family members is probably going to be passed by the EU parliament but it's legality will still be in question and will probably be challenged in court. I strongly believe that transitional laws will be put in place for those who have already applied under the current regulations. This however might be abused by the home office. The ss route is obviously under attack but again it will be challenged in the courts. It is unfortunate that many who are yet to start the process will find it difficult to even get started. Currently the threshold requirement is bieng reviewed and might be struck down. Nobody really knows how this new regulations will be translated but by the look of it, there is a possibility that the ammendment to the existing laws might need a treaty change which is the last thing the EU wants. For those who have already applied and are currently under the current regulations, this new regulations might not apply as there will be transitional laws.

[nyabs]

Also to add on what I have just stated I think we are not looking at the wording carefully. For instance those who marry an EU citizens after they have established residence. Established residence can mean those who have already attained permanent residence. It makes sense since if you marry someone who is a permanent resident in the UK gives one privileges of those marrying UK citizens. I don't think that this applies to those who marry EU citizens who have not settled. This is just my opinion.

[nemerkh]

What do you mean by settled? For instance we have been in the uk for 8 years and on our second eea2 because the first eea4 was refused due to lack of evidence of self employment. They surely just cant turn around and say goodbye 2 years before we can apply for another eea4. People have settled in the sense of kids, mortgage, jobs, etc..

[nyabs]

By "settled" I mean acquired parmanent residence. "Established residence" doesn't necessarily apply to someone residing in the UK. Ithink there is a significant difference between an established resident and a resident. For instance, EU students who have been in the UK for less than five years have not yet acquired settlement nor do they qualify for settlement. Meanwhile those EU students who have been in the UK for more than five years and qualified for settlement would have established residence in the UK. The key wording here is "Established residence".

[nemerkh]

And do you think the new laws will be applying for existing people like myself? Doesnt the law start apply from the date its introduced or can they backtrack it?

[nyabs]

And do you think the new laws will be applying for existing people like myself? Doesnt the law start apply from the date its introduced or can they backtrack it?

I honestly don't think that those who have already been given resident cards will be affected. In any case there will be transitional laws to accommodate those who are already enjoying the freedom of movement with the current regulations. What is possibly going to happen is that those who apply after the new regulations have been put in place will have to meet the requirements. But again this are proposals that will have to go through the EU parliament and might not be accommodated by the EU courts. We will have to wait and see. Meanwhile let's hope that the UK supreme Court will overturn Theresa May's threshold requirements that has made many UK families to suffer. It will be discussed soon

[crunchycracker]

Hi everyone,
I apologise if this has been asked before but I have some questions on how the new EU-UK deal will affect free-movement rights of non-EU spouses which I don't think there has been a clear-cut yes/no answers to. So according to the new EU's draft:

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. This proposal will be submitted after the above Decision has taken effect.

Does that mean that under the following circumstances:

1) if a EU national currently living in the UK marries a non-EU citizen that is currently not living in the UK/ EU, the non-EU citizen will not be able to move to the UK based on the fact that the EU national is now in the UK exercising his treaty rights

2) EU national living in the UK marrying a non-EU spouse who is currently living in the UK on a valid visa such as Tier 2 General won't allow the non-EU spouse to stay in the UK on the basis that the EU national is exercising his/ her treaty rights

3) If a EU national living in his home-country marries a non-EU spouse in the EU national's home country, then the EU national won't be able to bring his non-EU spouse to the UK because the non-EU spouse do not have prior lawful residence in the UK

4) It also says in the draft that the non-EU spouse will be subject to the host countries' immigration laws. Does that mean that in order for EU citizens to bring their non-EU spouse to the UK, the EU citizen will be subject to the same immigration laws as per UK citizens, i.e. minimum income threshold etc.

Also if UK votes to stay in the EU, when will these new regulations be put into practice? It says in the draft that the proposal will be submitted - does that mean that it will have to pass through the EU parliament before these changes will happen? Meaning that unlike benefits to EU citizens, the amendment free-movement rights will not happen overnight once UK votes to leave (unlike benefits/ welfare payments that will be in effect UK votes to stay in the EU) but will be subject to it passing through the EU parliament and the ECJ before it can materialise?

It'd be great if someone could clarify these as I (a non-EU citizen) recently got engaged to my fiancé (who is a EU citizen) and I'm afraid the new proposed changes will affect our ability to continue living in the UK legally. Thank you very much!

[secret.simon]

the appeal on the 22nd will kill the financial requirement

Meanwhile let's hope that the UK supreme Court will overturn Theresa May's threshold requirements that has made many UK families to suffer. It will be discussed soon

The appeal is being heard from the 22nd to the 24th. And the judgement won't be delivered for a while. From the dates of recent Supreme Court judgements, I expect a ruling in about six months time.

But from what I know of the British judicial system, the judgement won't be as intemperate as those from European courts and will be quite circumscribed in its ruling. It is worth watching the recent judgement on joint enterprise. The judgement stated that the earlier interpretation of the l;aw was wrong, but did not free everybody imprisoned because of it. Rather, it granted a window of appeal, within which if appeal was granted, the sentence would be reduced from murder to manslaughter and the person would be resentenced on that basis. A very narrowly written judgement that is very limited in its application.

If the law is incorrect, the British courts do not write the law, they suggest to the government appropriate contours and outlines to adhere to. It is still up to the the government and Parliament to legislate.

a change of government in a couple of years

Given the state of the opposition at the moment, it seems highly unlikely. Political & ideological purity don't win elections.

Then again, let's see how well Labour does in the Scottish and Welsh elections this year.

A change in government will not automatically lead to change of policy. There is a desire for controlled immigration no matter which party is in power. And that is unlikely to change.

[nemerkh]

Does having uk born children (eu passes) aged 8&6 play any role? Can they just turn around and say good bye?