Rights in EU law versus those at national law

[Neverland]

Can anyone give me their thoughts on how the rights of "migrant" workers may be better or worse than that of nationals in certain circumstances.

I am just trying to assess what the best route to take is, im talking generally because i was asked by a friend so i cannot post facts which may help you in the specific case of my friend.

Cheers

[86ti]

Without any details the general answer would be: it depends!

[Neverland]

Are there any cases i could familiarise myself with that could help me.

What i am looking into is, is there any situations under EU law in which migrant workers can have better rights than those of nationals. My understanding is that in situations where family are involved, the UK national law for example may be more onerous upon non EU citizens married to EU citizens when applying for rights to remain. This is in contrast with the relative ease of gaining such rights if the free movement is in effect previously as in Singh.

Am i understanding that right or is there any other cases which alter the position.

[86ti]

What i am looking into is, is there any situations under EU law in which migrant workers can have better rights than those of nationals.

Do you mean by migrant worker a EEA national wanting to exercise treaty rights in another member state?

Austrian nationals not having exercised treaty rights previously do get a worse deal. They would have to apply for a "settlement" permit for their non-EEA spouse after 1 year, another 1 year, then 2 years, and another 2 years. Every application costs money. The requirement for income is about 1200 Euro/month currently vs. 700/month Euro for EEA applications. There may be other disadvantages.

There are probably other countries that treat their nationals worse than they have to treat applicants under EU law.

[Neverland]

Yes i mean the EEA national.

So, if for example. Im a UK national who meets my wife in the UK who isnt an EU citizen. As this is taking place within 1 country and no cross border movement. UK immigration law would apply and not EU. So in this case, if we wished to travel around the EU, she would have to get visas to travel everywhere.

[86ti]

Are you actually only interested in the situation in the UK, i.e. your friend wants to find out if either the UK or the EEA route is better for him/her? You would be better off in the General UK Immigration forum then...

[Neverland]

It isnt just the UK im looking into, its the EU as a whole.

As you might be able to tell i am a bit lost with the whole thing, i dont want to offer bad advice or point them in the wrong direction. I have been in contact with them just now and the specific question i was asked was:

"Are EU Migrant workers’ rights under the free movement provisions that extensive to the extent that they enjoy an greater rights, even when compared to national workers who dont move?"

I tried to explain the whole Singh case etc but after that i started losing coherence, anyone any experience with this sorta thing.

Cheers

[Directive/2004/38/EC]

There are often two sets of laws. The normal national laws, and then the EU law which applies in certain cases.

National law is often more strict. So, often, if you can chose whether to use national law or EU law, you have more options than if you can just use national law.

Immigration example: If I am a UK citizen who has never worked outside of the UK and I marry somebody from Canada, then I will have to use the UK’s restrictive law to bring them to the UK. If I have worked in Germany and marry the same person there, I can use UK law or EU law to bring them to the UK.

Driver license: UK drivers licenses now expire every 10 years. German licenses do not expire. If you have a German drivers license, you can use it in the UK until it expires (i.e. forever)

If you can give a more specific example, then it is easier for people to pile into the conversation with ways that EU or national law are better.

[Neverland]

I think you touched upon my main issue, can you explain how the UK's laws on immigration are more restrictive or point me toward the piece of legislation which you are talking about, or both.

on a side note, im a UK citizen who obtained my drivers license 2 years ago, does that mean in 8 years time i have to take my test again or just re-apply like i would for a passport?

[lifeart]

If as a UK citizen you have lived in another EU member state, and then return to the UK you will be seen as a EU-citizen with respect to innigration issues and therefore EU-law applies, not national law. In other words: with regards to sponsoring your relative, EU-rules would apply, not national law

[Neverland]

Yeah, but in the cases where UK immigration law applies in favour of the EU law, how is the national law more restrictive to those individuals.

[JAJ]

Immigration example: If I am a UK citizen who has never worked outside of the UK and I marry somebody from Canada, then I will have to use the UK’s restrictive law to bring them to the UK.

It can't be that restrictive, considering most applications are approved.

Also, those selecting the EEA route have a longer wait for citizenship - some people are dismayed when they find that out the hard way.

[Neverland]

Thats what i thought, surely UK law cannot be that much stricter but i dont know much about this situation. So if someone could point me in the direction of how the laws are stricter/lenient than each other that would help

[Ben]

JAJ makes a valid point.

Using the EEA route is entirely free, but takes 6 years to naturalise as a UK citizen.

The UK route is costly - £585 for a spouse visa, then potentially another £820 for ILR (unless married for at least 4 years and KOL test has been passed prior to entry for settlement). However, naturalisation can occur after only 3 years UK residence.

Of course, some people may not want / be able to naturalise as a UK citizen. Those that do, however, must choose between the speedy yet costly UK route, or the free and timely EEA route.

Another thing to bear in mind though, is that by choosing the EEA route, an applicable family member is covered by the provisions of EU law. Several resources are available, at EU level, to assist the family member should his/her rights be infringed in the UK.

Choose the UK route, however, and the applicant puts himself at the mercy of the UKBA.

[shandave2001]

And EU law does not change speedily and suddenly as UK/memeber states laws. Also EU law is not much affected by public opinion of a member state. An example is case of Metock decided by the ECJ in July 2008. This case has huge repurcussion on member states in regard to immigration. While Republic of Ireland came to terms with this judgement, however, UK and Denmark did not take it easily. Should Metock has been decided by the House of Lords, Home Secretary would have rushed to ammend the law (pass legislation to invalidate the Metock). We do not know what UKBA will announce next week. There are rumours probationary period of UK national's spouse may be increased from current 2 years (it was one year before), and lot other restricted immigration policies etc as immigration is one of the hottest political issue.

The European Commission can levy hefty fine if a member state breach EU law (include ECJ judgements), however, the Commission has not been effective if the breach is related to immigration. Otherwise how Italy and some other member states are getting away by undermining the Metock judgement. EU has grown up now (easteren accession in 2004), unless Commission and other EU institutions make them effective, it take long before the breach can be rectified by the member state by Commision warning the defaulted state.

However, this is correct 6 years for naturalisation under EU law is a long period, while statics show in Western Europe 60% marriages/realtionships break down within 5 years. Though a non-EEA spouse has right to apply for Retention Right should the marriage/relationship break down where the marriage/relationship has lasted at least for 3 years. But that is just Retention Right, they still have to wait further 2 years for PR and 3 for naturalisation. There are reports 5 year Residence Card holders non-EEA spouses of EEA nationals have been questioned at airports whether their marriage/relationship still exist and where were their spouses. Image one has to wait for 5 years satisfying immigration authorities at airports that their marriage still subsist.

By the way there had been challenge that UK's treatment of its own nationals' spouses by granting them PR(indefinite leave) only after a year (at that time) tantamount to less favourable treatment for EEA nationals as their spouses get PR after 5 years. The matter went as far as to the ECJ (in preliminary ruling), but did not succeed. There is no prospect if such a challenge can succeed now, as counter arguments are too strong.

[cantaro]

Can anyone give me their thoughts on how the rights of "migrant" workers may be better or worse than that of nationals in certain circumstances.

I read through the thread, and it seems you are looking for specific examples on the treatment of a non-EEA spouse under national law vs. EU regulations.

Example: my wife is Argentinian, I am German. When I sponsored my wife to come from Argentina to Germany, she had to apply for a free family reunification visa, I had to provide certain papers, and once she was in Germany, she had to apply for a residence and work permit under national rules. To obtain the visa, she had to demonstrate basic knowledge of the German language, and nowadays (not back then) she would also have to attend an 'integration class' in order to receive a residence permit valid for more than one year.

Now we are living in Ireland, and if we were to move back to Germany, we would be treated under EU regulations because we would be moving from an EU country of which I am not a citizen, and she would immediately get a 5 year residence permit under EU rules with no other strings attached.

[Ben]

By the way there had been challenge that UK's treatment of its own nationals' spouses by granting them PR(indefinite leave) only after a year (at that time) tantamount to less favourable treatment for EEA nationals as their spouses get PR after 5 years. The matter went as far as to the ECJ (in preliminary ruling), but did not succeed. There is no prospect if such a challenge can succeed now, as counter arguments are too strong.

Very interesting, shandave2001. Would you have any links to the relevant ECJ judgement(s)?

[86ti]

By the way there had been challenge that UK's treatment of its own nationals' spouses by granting them PR(indefinite leave) only after a year (at that time) tantamount to less favourable treatment for EEA nationals as their spouses get PR after 5 years. The matter went as far as to the ECJ (in preliminary ruling), but did not succeed. There is no prospect if such a challenge can succeed now, as counter arguments are too strong.

Very interesting, shandave2001. Would you have any links to the relevant ECJ judgement(s)?

Likewise it would be interesting to know if there are/were court cases against the own government for being treated less favourable than EEA nationals who exercise their treaty rights. But such cases would probably not be referred to the ECJ.