Gibraltar Freedom of Movement

[Bloody-Fox]

Right, just back from the employment board and I was told that we have to go there (work permits section) with Passports, marriage certificate and proof of employment and the statement then was "We'll take it from there..."

As onlineamiga said before, they will most likely rubber stamp the passport with something that says that she is allowed to work or whatever.. We are going there to do that tomorrow and I'll update then what exactly happened!

PS: I told that to my HR and somehow they can't believe that such a thing really exists.. There is still a lot of informational work to do in this "country"...

[onlineamiga]

Ah nice one. You got further than me then! Probably because I'm British and as such discriminated against in such things.

[Directive/2004/38/EC]

onlineamiga, though you are British, you are allowed to be treated like any other European citizen for the purposes of this (since you earlier worked in Spain!).

[Bloody-Fox]

What would actually happen if we now get this stamp, my wife finds a job and I would happen to lose mine and not exercising treaty rights anymore... Would she immediately lose her right to work as well?

[Directive/2004/38/EC]

What would actually happen if we now get this stamp, my wife finds a job and I would happen to lose mine and not exercising treaty rights anymore... Would she immediately lose her right to work as well?

This is a complicated question worthy of a blog post. But the summary is:

If you get fired then you have time to find another job. You need to be a job seeker, namely somebody looking for work.

If you quit, then you need to have enough money to be considered (slighly) self sufficient (but that is pretty easy if your wife is working).

So basically your wife can continue working. Though it is MAYBE slightly more complicated because you are not actually living in Gibraltar.

[EUsmileWEallsmile]

What would actually happen if we now get this stamp, my wife finds a job and I would happen to lose mine and not exercising treaty rights anymore... Would she immediately lose her right to work as well?

A person is still considered to be a worker in some circumstances. The details are in directive 2004/38/ec.

[Bloody-Fox]

Ok thanks. Just to know what would happen in the worst case scenario.. My job is quite safe at the moment.

Will be going to the employment board with all the documents in about 2 hours and hope to be successful.

[Bloody-Fox]

Just back from the employment board and the guy that was rather helpful yesterday appeared to be completely confused and clueless.. So I requested to speak to his Supervisor.

The person who then came was at least half up-to-date with the law and assured me that it is not a problem and that my wife absolutely has the right to work in Gibraltar if I do so.. But only as long as we are also living in Gibraltar.. He however told me that the same question has arisen in another case last week and he is currently clarifying with someone, whether the non-EU spouse also "inherits" the right to work if we life in Spain... He is expecting an answer for mid or end of next week.

A rubber stamp for this case appears however not to exist.. The employers should know about this and in doubt can refer back to the employment board for clarification.

So far so good. Thanks to you guys I now know that there MUST be a way to stay in Spain and get the right to work in GIB via treaty rights.. If anyone could point me in the right direction what exactly to tell the guy in order to speed up the process for us, the couple in the other case and thousands of others in the future, I would be highly grateful.

There appears to be light at the end of the tunnel after walking down s**tstreet for over 2 years..!

I also had the following email confirmation with them:

"I would like to get some information on how to obtain a working permit for my wife.

As I am a German citizen employed in Gibraltar, DIRECTIVE 2004/38/EC OF THE EUROPEAN PARLIAMENT gives my Brazilian wife the right to also work in the same European member state:


Article 23 - Related rights
Irrespective of nationality, the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or self-employment there.


Please kindly advise on how this law is applied in Gibraltar and which steps we need to take in order to obtain a working permit for my wife.


Thank you in advance"

And their answer:

"Dear Mr ,


On evidence that you are both residing in a Member State other than your own and the EU member is in employment, the Non EU spouse will acquire EU rights in the host Member State. In such circumstances no work permit application is required to obtain employment.


Yours sincerely,


Once we obtain guidance on how to proceed in your particular case I will contact you once again."

[Directive/2004/38/EC]

If you are a cross border commuter, then you live in country S and work in country G. You have residence in both countries for the purposes of EU free movement law. Residence in this case does not depend on you sleeping in a member state G.

EU free movement law is originally and most strongly associated with WORKING somewhere. Country G is that country.

If you are working in G, then your wife can work there and live there. It is an absolute right, nothing optional or special. It is only conditional on you continuing to have lawful residence in G. You have that.

Glad you asked for the Supervisor. Make sure you write down each person's name.

[Bloody-Fox]

If you are a cross border commuter, then you live in country S and work in country G. You have residence in both countries for the purposes of EU free movement law. Residence in this case does not depend on you sleeping in a member state G.

EU free movement law is originally and most strongly associated with WORKING somewhere. Country G is that country.

If you are working in G, then your wife can work there and live there. It is an absolute right, nothing optional or special. It is only conditional on you continuing to have lawful residence in G. You have that.

Glad you asked for the Supervisor. Make sure you write down each person's name.

Yes, thanks. This fact is clear to me now. However, it appears not to be clear to them, as they first need to clarify a 9 year-old law... But at least something is happening now!

What do you think would be my best answer to this email in order to possibly speed this up?

PS: I forwarded this to my HR, as I thought this will be interesting to them as well. They could not believe what they were reading.. They had to renew the working permit for the Argentinian wife of the Italian husband I mentioned last week, in October.. The couple is living in Spain and both are working for our company... Apparently the employment board is sending out annual renewal letters like it was car tax... This needs to change!

And yes, I got the name and email address of the person that gave me the information.

[Directive/2004/38/EC]

What do you think would be my best answer to this email in order to possibly speed this up?

Which email?

[Bloody-Fox]

What do you think would be my best answer to this email in order to possibly speed this up?

Which email?

The bold part of the quote below. With "my particular case" they mean the fact that we are residing in Spain instead of Gibraltar..

I would like to get some information on how to obtain a working permit for my wife.

As I am a German citizen employed in Gibraltar, DIRECTIVE 2004/38/EC OF THE EUROPEAN PARLIAMENT gives my Brazilian wife the right to also work in the same European member state:


Article 23 - Related rights
Irrespective of nationality, the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or self-employment there.


Please kindly advise on how this law is applied in Gibraltar and which steps we need to take in order to obtain a working permit for my wife.


Thank you in advance"

And their answer:

"Dear Mr ,


On evidence that you are both residing in a Member State other than your own and the EU member is in employment, the Non EU spouse will acquire EU rights in the host Member State. In such circumstances no work permit application is required to obtain employment.


Yours sincerely,


Once we obtain guidance on how to proceed in your particular case I will contact you once again."

[Directive/2004/38/EC]

Well, about the only thing that should be issued to your wife is a Residence Card. That is what she needs to work, and that is what she is entitled to.

I think asking for a "work permit" partly confuses the issue, partly because she requires no "permission" to work. (Note again that she can work immediately today without permission).

[Bloody-Fox]

Finally I have something in writing from the Civil Status & Registration Office:


Dear Sir

I refer to your request for information made to the Citizens Advice Bureau in Gibraltar.

In your email you state that you are a German national resident in Spain.

If you are travelling to Gibraltar to exercise your EEA rights (that is pursuing an economic activity and taking up residence in Gibraltar) then your non EEA spouse will be able to accompany you and take up residence with

you in Gibraltar.

I trust this answers your query.


Then I asked them to clarify further how to get a residence card for my wife...

Dear Sir

If you are in Gibraltar exercising EEA rights in Gibraltar by virtue of the fact that you are a qualified person under the Immigration Asylum & Refugee Act and you are residing in Gibraltar ( ie living in Gibraltar) then your non-EEA wife will be entitled to live with you in Gibraltar.

If you are not a resident of Gibraltar then neither yourself nor your spouse will be issued with civilian registration cards and corresponding permits of residence because you are not residing in Gibraltar.

Yours faithfully

So the summary is the following:

- The Employment board tells me that my wife is eligible to work in Gibraltar if I am exercising treaty rights AND WE ARE LIVING IN GIBRALTAR together.. Further clarification might follow

- The ID card office tells me that we CANNOT get a residence card

- Employers know bugger all about treaty rights

Where to go from here? I am about to go to an immigration lawyer ...

[Directive/2004/38/EC]

I would suggest you apply for a Residence Card. Tell them to refuse the application if they believe they have any legal ground to do so. Force them to make a decision.

"The ID card office tells me that we CANNOT get a residence card"?

What is the exact reason?

[EUsmileWEallsmile]

Sometimes it is illustrative to check what other EU states do. This is the case for Luxembourg.

http://www.mae.lu/en/Site-MAE/VISAS-Imm ... y-national

The third-country national who is the spouse/declared partner or the descendant of an EU national residing in another member State of the EU and working in Luxembourg, is exempt from the obligation to have an authorisation to work if he/she wishes to also work in Luxembourg. He/she must nevertheless ask for an exemption letter

[Bloody-Fox]

I would suggest you apply for a Residence Card. Tell them to refuse the application if they believe they have any legal ground to do so. Force them to make a decision.

"The ID card office tells me that we CANNOT get a residence card"?

What is the exact reason?

If you are not a resident of Gibraltar then neither yourself nor your spouse will be issued with civilian registration cards and corresponding permits of residence because you are not residing in Gibraltar.

[Bloody-Fox]

Sometimes it is illustrative to check what other EU states do. This is the case for Luxembourg.

http://www.mae.lu/en/Site-MAE/VISAS-Imm ... y-national

The third-country national who is the spouse/declared partner or the descendant of an EU national residing in another member State of the EU and working in Luxembourg, is exempt from the obligation to have an authorisation to work if he/she wishes to also work in Luxembourg. He/she must nevertheless ask for an exemption letter

That sounds good. Just had a look for Ireland:

The host member state must facilitate the entry and residence of other family members who do not have an absolute right to move but who are dependent on you or whose health is such that they require care by you. Member states must also facilitate the entry and resident the entry and residence of a partner with whom you have a durable relationship.

EU citizens exercising their right to free movement are not required to have a residence card but their family members who are not themselves EU citizens may be required to have such a card.

If they wish to, your spouse, civil partner and children also have the right to work without restriction in your country of employment. You and your family members have the right to the same social benefits as the nationals of the host member state. This includes the right to education access and benefits.

Well, as Gibraltar is not quite as transparent as these great countries, we will then just apply for a residence card and see waht the outcome will be.

Thanks

[EUsmileWEallsmile]

Bear in mind that the UK that is responsible for Gibraltar when it comes to EU law compliance.

[Bloody-Fox]

Bear in mind that the UK that is responsible for Gibraltar when it comes to EU law compliance.

Means what exactly? I know that Gibraltar is a separate state for immigration purposes...

Do I need to deal with the UK then?

[EUsmileWEallsmile]

Bear in mind that the UK that is responsible for Gibraltar when it comes to EU law compliance.

Means what exactly? I know that Gibraltar is a separate state for immigration purposes...

Do I need to deal with the UK then?

No need to deal with the UK in the first instance - it was mentioned for information. Gibraltar is not a separate state. It is a territory that the UK is responsible for. Any non-compliances with EU law go against the UK.

You might research how the UK would treat an EU citizen in your particular circumstances.

[Directive/2004/38/EC]

I think one can make a plausible case that you are resident in Gibraltar: http://eumovement.wordpress.com/2007/06 ... -question/

I do not see any reason you need to sleep there.

[Directive/2004/38/EC]

CHAPTER V PROVISIONS COMMON TO THE RIGHT OF RESIDENCE AND THE RIGHT OF PERMANENT RESIDENCE

Article 22 - Territorial scope

The right of residence and the right of permanent residence shall cover the whole territory of the host Member State. Member States may impose territorial restrictions on the right of residence and the right of permanent residence only where the same restrictions apply to their own nationals.

This is not directly related to the other conversations of this thread, but I was thinking about this.

I think Gibraltar falls under the member state known as the UK. So a Residence Card issued for Gibraltar should be valid in the UK and for travel to the UK, and continuity of residence for the purposes of PR should not be broken by moving from one to the other.

[Bloody-Fox]

This looks indeed convincing.. At least to me!
I have sent a request to YourEurope last week and will wait a couple of days more for their answer.. I suppose by the end of next week I will then just apply for a residence card for both of us, stating my employment in Gibraltar plus my spanish address etc. include print-outs of the Eu-directive amd if they decline it, then complain to solvit..

Do you think that's the right way?

On the other hand I will try to find out how the UK handels family members of frontier workers, as the Luxembourg example shows that a residence card is not necessarily needed...

[Bloody-Fox]

If I compare the cases of Luxembourg and Gibraltar, I can see similarities. It looks like Luxembourg would not issue a residence card in this case either, but rather an "exemption letter".. i.e.:


The third-country national who holds a residence permit and resides legally in another member State of
the EU and who wishes to work on the territory of the Grand-Duchy of Luxembourg, without wanting to
reside here, must have a valid work permit before starting to work.

1. Exception
The third-country national who is the spouse/declared partner or the descendant of an EU national residing
in another member State of the EU and working in Luxembourg, is exempt from the obligation to have an
authorisation to work if he/she wishes to also work in Luxembourg. He/she must nevertheless ask for an
exemption letter....


The last answer I got from the employment board was the following:

Dear Mr,

Essentially, the work permit is issued to the employer, on behalf of the employee. It is up to the employer to find out what is required by us so the Non-EU spouse acquires EU rights. The requirements are: Marriage Certificate, evidence of Residence (in Gibraltar) and confirmation that the EU National in that relationship is working in Gibraltar. All these documents, if sent as photocopies, need to be ‘certified true copies’. They need to be submitted together with the Notice of Terms of Engagement. It is quite customary for the employer to send a cover letter with it given further information if necessary. This in itself is a sign to top and look at the document, rather than just put it through the standard system of Work Permits.

I hope you find the above useful.

This person from the employment board told me that he is currently claryfing if non-EU family members of EU nationals, exercising treaty rights in GIB are also allowed to work in GIB if they actually live in Spain. As we all know, there is such a right and maybe they will wake up here soon and also introduce some kind of exemption letter...