Gibraltar Freedom of Movement

[EUsmileWEallsmile]

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.

I would agree with this analysis. However, it would appear that the UK and Gibraltar effectively have separate systems and one might have to fight if one were to try to enforce this.

[EUsmileWEallsmile]

This information suggests that your wife can work, but it does not give legal references.

http://ec.europa.eu/social/main.jsp?catId=463

[EUsmileWEallsmile]

The UK, on the face of it appears to allow a family member to work.

http://www.ukba.homeoffice.gov.uk/eucit ... sibilites/

Employment

If you are a national of Bulgaria or Romania, you must obtain our permission in order to work here. You should read the pages for Bulgarian and Romanian nationals for details.

If you are a national of any other EEA country or Switzerland, you will not need to apply for our permission in order to work here.

You and your family members can:

accept offers of work
work as an employee and/or in self-employment
set up a business
manage a company
set up a local branch of a company

You can also do all these types of work if you are studying in the UK.

Your employer should not discriminate against you because of your nationality in terms of conditions of employment, pay or working conditions.

[Bloody-Fox]

This information suggests that your wife can work, but it does not give legal references.

http://ec.europa.eu/social/main.jsp?catId=463

Yes, the legal references regarding this are hard to find.. This also states that the right exists:

http://ec.europa.eu/justice/citizen/fil ... _ec_en.pdf

Under the Directive your family members, irrespective of their
nationality, are entitled to take up employment or self-employment in the host Member State. It does not matter whether
you work, study or just reside there, your family members can start
their economic activity with the same paperwork as nationals.

Your family members, legally residing with you have free access
to the labour market of the Member State concerned without work
permits once they have been resident there for at least eighteen
months or from 1 May 2007, whichever is the earlier. If they do not
meet this condition, they still may work, but they need to acquire a
work permit.

[EUsmileWEallsmile]

I think we are getting closer to finding legal references. The term to search for is "frontier worker".

I have found some case law for a frontier worker and the education of their child.

(link not working, but start here http://www.eurofound.europa.eu/areas/in ... orkers.htm)

[EUsmileWEallsmile]

THE COURT

(Fifth Chamber),

in answer to the questions referred to it by the Commissie van Beroep Studiefinanciering by order of 26 September 1997, hereby rules:

1. The fact that a person is related by marriage to the director and sole shareholder of the company for which he pursues an effective and genuine activity does not preclude that person from being classified as a `worker' within the meaning of Article 48 of the EC Treaty (now, after amendment, Article 39 EC) and of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, so long as he pursues his activity in the context of a relationship of subordination;

2. The dependent child of a national of one Member State who pursues an activity as an employed person in another Member State while maintaining his residence in the State of which he is a national can rely on Article 7(2) of Regulation No 1612/68 in order to obtain study finance under the same conditions as are applicable to children of nationals of the State of employment, and in particular without any further requirement as to the child's place of residence;

3. The dependent child of a national of one Member State who pursues an activity as a self-employed person in another Member State while maintaining his residence in the State of which he is a national can obtain study finance under the same conditions as are applicable to children of nationals of the State of establishment, and in particular without any further requirement as to the child's place of residence.

[EUsmileWEallsmile]

This article gives references to case law pertaining to migrant workers of which a frontier worker is one.

http://eur-lex.europa.eu/LexUriServ/Lex ... FIN:EN:PDF

[Directive/2004/38/EC]

In Luxembourg it is easy to say you just need this letter as there is not border that needs to be crossed.

In Gibraltar, there is a border and the family member is apparently only allowed to cross then the EU citizen goes to the border to meet them. This would make working more problematic. Imagine if the EU citizen has a dentist appointment or is sick and so does not cross over to Gibraltar that day. This is what makes a Residence Card, with it's border crossing function, more useful.

[Bloody-Fox]

In Luxembourg it is easy to say you just need this letter as there is not border that needs to be crossed.

In Gibraltar, there is a border and the family member is apparently only allowed to cross then the EU citizen goes to the border to meet them. This would make working more problematic. Imagine if the EU citizen has a dentist appointment or is sick and so does not cross over to Gibraltar that day. This is what makes a Residence Card, with it's border crossing function, more useful.

Which is not applicable in my case, as Brazilian nationals do not need a visa to enter Gibraltar..

But anyways, if I read the statements from the employment board then a civilian registration card does not necessarily give you the right to work.. Or am I interpreting this wrong?

[Directive/2004/38/EC]

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

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 the wrong part. The employer should not be involved in this process. That creates a disincentive for them to hire the family member instead of a British citizen.

Do you know if this process also applies to an EU citizen? Or is the passport itself considered enough proof for the employer?

[Directive/2004/38/EC]

In Luxembourg it is easy to say you just need this letter as there is not border that needs to be crossed.

In Gibraltar, there is a border and the family member is apparently only allowed to cross then the EU citizen goes to the border to meet them. This would make working more problematic. Imagine if the EU citizen has a dentist appointment or is sick and so does not cross over to Gibraltar that day. This is what makes a Residence Card, with it's border crossing function, more useful.

Which is not applicable in my case, as Brazilian nationals do not need a visa to enter Gibraltar..

This would be the case though for onlineamiga, whose wife (if I remember correctly) is from South Africa.

[Bloody-Fox]

In Luxembourg it is easy to say you just need this letter as there is not border that needs to be crossed.

In Gibraltar, there is a border and the family member is apparently only allowed to cross then the EU citizen goes to the border to meet them. This would make working more problematic. Imagine if the EU citizen has a dentist appointment or is sick and so does not cross over to Gibraltar that day. This is what makes a Residence Card, with it's border crossing function, more useful.

Which is not applicable in my case, as Brazilian nationals do not need a visa to enter Gibraltar..

This would be the case though for onlineamiga, whose wife (if I remember correctly) is from South Africa.

exactly. but as he is British, he is not exercising treaty rights in GIB and that makes it complicated...

[Bloody-Fox]

Do you know if this process also applies to an EU citizen? Or is the passport itself considered enough proof for the employer?

EU nationals don't have problems.. I had to show my passport to the employer and that was it..

http://cab.gi/start/index.php/residency ... hermenu-28

Employment

Turning now to employment in Gibraltar, in the case of non-EU nationals, only holders of residence permits are able to register for employment with the Employment and Training Board (ETB). However EU nationals are free to seek employment in Gibraltar in their own right and once they have secured employment they will need to register with the ETB.

http://www.gibraltar.gov.gi/employment

" Persons who are non-entitled to work in Gibraltar (e.g. non-EEA nationals. See notes below) will require the prospective employer to request the issue of a work permit before commencement of employment."

"The employment of a worker for whom a work permit is required without the employer having first obtained such a permit is an offence and a fixed penalty notice of £1500 may be issued to the employer."

[Bloody-Fox]

I just found out that there is indeed such a thing as a residence card issued by the Gibraltar gov:

http://prado.consilium.europa.eu/EN/4284/docHome.html

Legal Status:

"LONG-TERM RESIDENT - EC": Long-term resident's EC residence permit (Council Directive 2003/109/EC). Residence permit for third country nationals with long-term EU residence status issued by: GIB - GIBRALTAR
Civilian Registration Card for non-EU/EEA nationals. Not valid for travel.

[Directive/2004/38/EC]

In Luxembourg it is easy to say you just need this letter as there is not border that needs to be crossed.

In Gibraltar, there is a border and the family member is apparently only allowed to cross then the EU citizen goes to the border to meet them. This would make working more problematic. Imagine if the EU citizen has a dentist appointment or is sick and so does not cross over to Gibraltar that day. This is what makes a Residence Card, with it's border crossing function, more useful.

Which is not applicable in my case, as Brazilian nationals do not need a visa to enter Gibraltar..

This would be the case though for onlineamiga, whose wife (if I remember correctly) is from South Africa.

exactly. but as he is British, he is not exercising treaty rights in GIB and that makes it complicated...

Well technically you are right, he is British. And so normally EU law would not apply to his family members.

But since he has earlier worked in Spain, and so for the purposes of his family's treatment he can be considered as European as you are. (ECJ Singh)

In fact he has it even better. Even if he was not working, his family would still be allowed to work and live in Gibraltar. You have to either keep working or be "self-sufficient" to be resident in Gibraltar, until you have been there for 5 years.

[Bloody-Fox]

I just received an answer from YourEurope.. Pretty useless:

Dear Mr.
Members of the family of an EU citizen must are entitled to live and work in the EU Member State where the EU citizen lives (EU Directive 2004/38). Moreover, they are also entitled to work in said host country.
Nevertheless, EU does not provide for a right, for said Members of the family, to work in other EU Member States.
Therefore, if you live in Spain, your wife is entitled to work in Spain, but not in the UK (Gibraltar).
For more general information on EU law:
http://ec.europa.eu/youreurope/
Directive 2004/38:
http://eur-lex.europa.eu/LexUriServ/Lex ... 123:EN:PDF
Yours faithfully
Your Europe Advice

Can I ask Solvit directly?

[Bloody-Fox]

I did not know whether to laugh or to cry when I saw how they are victimising themselves now, referring to the EU right of free movement...

[EUsmileWEallsmile]

Nice photos. Gibraltar, like many places is quick to complain when they feel aggrieved, but no so fast in ensuring that they make things easy for others.

[Bloody-Fox]

I have forwarded these pictures including my story to the exact person mentioned on the sign plus I complained to solvit..

I have accepted the fact that we won't be getting our rights here and after the summer we will leave this part of the world if my wife didn't find a job until then..

[Bloody-Fox]

Solvit have just replied to me that Gibraltar are not violating EU rights by doing what they are doing.

Original response in German:

Sehr geehrter Herr,

leider muss ich Ihnen mitteilen, dass ich nach gründlicher Prüfung Ihres Sachverhalts zu dem Ergebnis gekommen bin, dass wohl kein Verstoß gegen EU-Recht vorliegt.

Art. 23 der Richtlinie 2004/38/EG gibt den Familienangehörigen eines Unionsbürgers, die im Besitz einer Aufenthaltskarte sind, das Recht, in dem Mitgliedsstaat, in dem sie ein Aufenthaltsrecht genießen, auch zu arbeiten. Dies wäre in dem Fall Ihrer Ehefrau in Spanien. Auf das Vereinigte Königreich ist diese Arbeitserlaubnis wohl nicht übertragbar.

Es tut mir sehr leid, dass ich Ihnen und Ihrer Frau nicht weiterhelfen konnte.

Mit freundlichen Grüßen

I am officially giving up now and after this summer we will be moving to Ireland.

Thanks to everyone who helped me in here.

[EUsmileWEallsmile]

Would you be so kind as to offer the non-German speakers a translation of what it says. (Solvit are not always correct).

[Bloody-Fox]

Sure, it roughly says:

"after thorough review of your case I'm afraid to let you know that apparently no violation of european rights is given in this case

Art. 23 of directive 2004/38/EG provides the family members of a union citizen who are in possession of a residence card the right to also work in the host state in which they are residing."

However, I would interpret "in dem sie ein Aufenthaltsrecht genießen" rather as "where they do enjoy the right of residence"

In the case of your wife this would be Spain. This right is not transferable to the United Kingdom.

I am very sorry being unable to help you and your wife."