New EU deal: Free-movement rights gone?

[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.)

[nemerkh]

Every memberis speculating as there is nothing concrete and in turn its confusing.
If we go back to the drawing board, basically they mentioned new restriction on third country nationals in eu to prevent sham marriages. Fair enough and insupport that, but will there be a blanket restriction m, be it a sham marriage or not? Isnt that itself stereotypical and discriminitave?

[357mag]

Argh my head hurts now Richard lol.
I've already established myself in Bulgaria and my "spouse" is looking to get a long term visa as Family member to join me. So it seems my goose is cooked, bugger.

[Richard W]

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.

The 'or is and' interpretation is still a gain for Cameron. I'm not sure if the 'no switching' rule will prevent prior legal residence, but it is difficult and expensive to get an ill-educated girlfriend to the UK as a student. If 'a Member State' (for residence) and 'the host Member State' (for establishment) are meant to be the same, then he has achieved some restriction. Of course, if 'established' means to gain permanent residence, it's not a great restriction, but yet another minor, symbolic victory.

[357mag]

Calmed down, no we are ok, we have to prove relationship is over two years so we were "married" before I established myself in BG.
Its all speculation of course till we read the final wording and then we could vote to come out so the proposal becomes toilet paper, but its interesting to gain insight to the possibilities.

[Richard W]

If 'a Member State' (for residence) and 'the host Member State' (for establishment) are meant to be the same, then he has achieved some restriction.

On second thoughts, I don't think they would need to be the same. I have had a look at Regulation 12 of the original Immigration (European Economic Area) Regulations 2006 and I see the requirement that the non-EEA family member be 'lawfully resident in an EEA state'. It seems from another source that 'lawfully resident' has very little difference from legally present for an EU family member. I beginning to wonder if this is actually a fairly small change for most family members.

Argh my head hurts now Richard lol.
I've already established myself in Bulgaria and my "spouse" is looking to get a long term visa as Family member to join me. So it seems my goose is cooked, bugger.

It depends how tough the rules are for Bulgarians to bring their wives in. If you're planning to Surinder Singh it, you're still OK under 'or is and'.

So the question, to be punctuated, is:

is or and or is or or

[liksah]

I don't think OR is AND. There have been drafts of this decision proposed through Donald Tusk's letters prior to the final draft that we have seen. However the line of reasoning you are going for (even if it is OR) does make a little more sense.

Imagine a person who has tried to enter the EU via a regular Schengen visa in the past and been denied a visa (probably based on prior overstays or some information in the SIS). Alternately, imagine a person who has entered the EU but then overstayed and thus has 'illegal' status.

Both of the above people could gain free movement rights and regularise their situation in the EU by getting married to an EU citizen. This is exactly the kind of abuse that I would imagine everyone is angry about and the kind of abuse that people and policymakers want to put a stop to.


I know that for all this time we have been assuming that lawfully resident before marriage means that the person should have prior EU residence. But does this make any sense? What has prior EU residence of the non-EU spouse got to do with anything? What does this even prove? It proves nothing as is explained by several posters earlier - this kind of thing could be circumvented easily by going through the 'student' route or some other similar route.

Furthermore, this kind of measure would penalize couples like an EU citizen living the US, getting married there, and then not being able to move back to the EU. Why should this be the case? Isn't it MUCH more likely that marriages of convenience happen when:
- A french citizen is living in Barcelona
- A colombian has received orders for expulsion
- He asks his french friend to marry him and do him a solid?

To me what makes most sense is:
- Restrict free movement rights for people who are either using marriage as a means to gain entry (eg. those who have been previously denied visas based on prior overstays or violations..)
And also:
- Restrict free movement for those who have tried to regularise their situations (in-country) by getting married (these could either be real marriages or marriages of convenience, the chance of being marriages of convenience is also much higher in these cases)

How?
Apply national immigration law. National immigration law often takes previous illegal stays in any EU country (and even sometimes in other countries like the US/CA/Australia/NZ) quite seriously.

This makes MUCH more sense than penalizing *all* non-EU spouses, something which I'm sure policymakers are aware the CJEU is likely to throw out - if that comes up.

Does the above line of reasoning make sense to anyone else?

I'm pretty confident in my interpretation above and I'm quite sure that the draft laws amendments regarding this will address the issue as such. It is very difficult to know what exactly the background of these statements is:

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

But here is what I think the above statements mean (through examples):

If you are illegal in the UK, you cannot marry a Polish citizen and continue living in the UK under EU free movement laws. You need to apply under UK law (this will probably result in a denial of residence).
If you are legally currently in Spain, you cannot marry a French citizen (who is already established in Spain) and continue to stay in Spain under EU free movement rights. You need to go through the national re-unification procedure.

What do you think about this interpretation?

[crunchycracker]

If you are illegal in the UK, you cannot marry a Polish citizen and continue living in the UK under EU free movement laws. You need to apply under UK law (this will probably result in a denial of residence).
If you are legally currently in Spain, you cannot marry a French citizen (who is already established in Spain) and continue to stay in Spain under EU free movement rights. You need to go through the national re-unification procedure.
What do you think about this interpretation?

I agree with both of your interpretations. For the first case, free-movement rights will never be entitled to the non-EU spouse due to the lack of lawful residence. For the second case, yes - free-movement rights will not be entitled to the non-EU spouse if they both remain in Spain. However should the couple choose to relocate to the UK, then free-movement right applies as both clauses in the draft has been met:
1) Non-EU has lawful residence in Spain ("A" member state)
2) Couple married 'EU' spouse before establishment in "the" member state -> The member state now being UK.

Actually come to think of it, I'm not entirely sure if "the member state" refers to Spain or will UK be considered "the member state". If the former is the correct interpretation then no matter what happens, national immigration law will apply to the non-EU spouse. However if the latter interpretation is the truth then there will still be ways to circumvent the regulations via Surinder Singh method - couple can legally marry in Spain, move to another EU country to establish residency, then move back to Spain in the future.

[nemerkh]

Question lyes again. Is this change going to apply to people already in the uk or to new comers ie applying for family visas/eea1&2?

[fysicus]

Even if the UK leaves the EU, free movement rights will have to remain unaltered!

All Brexit supporters stress that they want the UK to remain a member of the EEA (now consisting of EU countries plus Norway, Iceland and Liechtenstein).

The directive 2004/38 which regulates free movement of people is binding for all EEA countries.

Therefore a Brexit will not enable the UK to revoke (or significantly alter) The Latest Consolidated Immigration (European Economic Area) Regulations - EEA Regulations 2016

[secret.simon]

Also see earlier post in this thread about possible options after Brexit.

And a previous change in the law that was practically overnight and deprived a lot of people of the right to reside in the UK.

[fysicus]

well, having read the LSE document, the only conclusion that I can draw from it is that Brexit means the UK shooting itself in the foot: all alternatives are clearly worse than being an EU member. It confirms what I always found already: Brexit is good for the EU, and bad for the UK.

The comparison to the 1968 Immigration Act is pointless: under the Lisbon Treaty the UK must give two years notice of its intention to leave the EU, so if it happens, it will only be July 2018 or later

[secret.simon]

The comparison to the 1968 Immigration Act is pointless: under the Lisbon Treaty the UK must give two years notice of its intention to leave the EU, so if it happens, it will only be July 2018 or later

It may have to give two years notice to Brussels. But changes to UK law can be made in its own time and may not have to wait two years. It is possible to rush changes through in a day, though these types of changes typically take a year to get through the two Houses.

Brexit is good for the EU, and bad for the UK.

I disagree in that I think it is bad for both. But it may be necessary to stop the EU juggernaut crushing its own member states.

A vote for Brexit will be like a pulled muscle or a twisted ankle. Sharp and painful in the short term, forgotten in a few days, but it will make you think if there is something in your routine that you need to change.

[Obie]

Fysicus is talking about law . You are very correct.

UK Is bound by its international obligations under the treaty until and unless it officially vacates the EU in accordance with the treaty.

There are over 2 million Britain living in the EU and it will be odd for the UK to apply policy and legislation without those other states taking reciprocal steps.

I think the economic analysis you gave is sound.

Look at the impact on the pound today. Wish I had changed last week. These fools are just shooting themselves in the foot.

[Obie]

The 1968 act is nothing comparable to UK'S international obligation under the treaty.

There was no need for an impact assessment . It had no effect on British Citizens.

It sole purpose was racially motivated and a very dark moment of British history.

This is a treaty , there are million of British in Europe and anyone who suggest a legislative change can be done in a night is a bit of a Walter mitty character.

[Salem]

This is how Sky is reporting it -

'The agreement confirms measures to deny free-movement rights to nationals of a country outside the EU who marry an EU national, as well as action to tackle the use of sham marriages to gain residence rights'.

Even though I am someone who has benefitted from this, I am an EU Citizen who used the EEA to get my non EU wife to come and live here with me in the UK, I can see how your average UK resident gets annoyed with this, with all the hoops they have to jump through to bring their non EU partner to the UK.

But there is so many ifs and buts yet, what way will the Referendum go, if a stay in, will the above agreement be brought in as 'transitional' as the then McCarthy Judgement was etc.

On a personal level, I hope so, as my wife is 3 years into her 5 Year Residence Card, and I was hoping it would be straightforward to get her PR when her 5 years was up. I think this will be the case, but who knows at present. That's why I'm not too concerned or getting too worked up, as there is too many variables yet. I'm waiting until we know for sure when any new Judgement or agreement is implemented, then will deal with it I suppose. My wife is also 5 months pregnant, with our child going to obtain a UK Passport, so that's another variable that maybe gives us more options. But it's a lot of conjecture so far IMO.

[nemerkh]

Am a noneu into our 3 yrs rc. So even if the law is implemented, will they have the right just to turn around and annulate the RC that they issued? Bit ott me thinks

[Salem]

Am a noneu into our 3 yrs rc. So even if the law is implemented, will they have the right just to turn around and annulate the RC that they issued? Bit ott me thinks

My non EU wife is similar, 3 years into her 5 years RC.

There's so many variables at present, no one can answer with any clarity.

If it's even brought in, it might be transitional, as many such things have been before, so you and my wife would be fine.

If not I'd guess once the 5 years RC was up, then you couldn't progress to PR, you'd have to use whatever route was available to you, based on your own personal circumstances.

I very much doubt they would just cancel or annul any valid RC's etc.

But as I say, it's all guess work and conjecture at present, so not getting too concerned until I know exactly what the new law/requirements are, if there are any.

[nemerkh]

By the way, having 2 uk born children eldest is 8 i heard there is some sort of law not allowing kicking out of country on the basis of child wont be fit for changing country or something like that. Wonder if this applies

[Salem]

Also just watched Cameron live on Sky News say it will bring an 'end to the ridiculous way EU Residents being able to bring non EU family members to the UK without being subject to UK Immigration Law'.

So again, conjecture in my part, but hoping if it does happen, it will be transitional, only for new applicants. From a purely selfish viewpoint

To be fair, I can see how your average UK Citizen gets would up about this with the rigmarole they have to go through to bring a non EU wife to the UK. Not saying agree with or want this judgement in any way, just saying I can see how UK residents get upset about it.

[Salem]

By the way, having 2 uk born children eldest is 8 i heard there is some sort of law not allowing kicking out of country on the basis of child wont be fit for changing country or something like that. Wonder if this applies

Yes, I'm aware of something along those lines, something saying that a mother cannot be removed from her child. Although I'm not sure if this is a EU Directive, a Human Rights Directive, that the UK could override if they voted out, or what the situation is.

Again, it's all conjecture at present, but something we'd have to possibly look at, with our soon to be born daughter who will have a UK Passport.