"I have never welcomed the weakening of family ties by politics or pressure" - Nelson Mandela.
"He who travels for love finds a thousand miles no longer than one" - Japanese proverb.
"Everyone has the right to respect for his private and family life, his home and his correspondence." - Article 8 of the European Convention on Human Rights.
"When people's love is divided by law, it is the law that needs to change". -
David Cameron.

Tuesday, 2 February 2016

Draft Declaration of the European Commission

So the UK government has made much of the abuse of the right of EU citizens to move freely between member states, with their family members, even where the family members are third country nationals.  The European Commission seems to have given massive concessions with this extract from the draft declaration (bear in mind this is just a 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. "

Further down, the declaration states "Member States can address specific cases of abuse of free movement rights by Union citizens returning to their Member State of nationality with a non-EU family member where residence in the host Member State has not been sufficiently genuine to create or strengthen family life and had the purpose of evading the application of national immigration rules."  which is a direct attack on those undertaking the Surinder Singh route, so it will need to be clearer that the moving to another EU country and then returning eventually to the UK was not for the purpose of evading the UK immigration rules.

I set out my understanding below - I think this is right, but if not apologies in advance.  This is all a bit new for me as it is for everyone but I will correct if realise there are any errors.

Example - current
Scott is a British citizen.  His wife, Lila, is from India.

Under current EEA regulations, Scott and Lila can use free movement to move to France which specifically excludes income and language requirements.

There are conditions imposed on Scott's right of residence however, in that he needs to be engaging in certain permitted activities, like working or being self-employed, studying or self-sufficiency.

If after some time Scott wishes to move to the UK (and utilise the Surinder Singh route), he can do so with his Indian wife and be exempt from the UK income threshold of £18,600 and the English language requirements, as long as he can evidence acceptable activity in France (which by UK's interpretation seems to be only work or self-employment).  Alternatively, he can also use free movement rights to move to Germany or Ireland or any other member state, with Lila.

Example - as proposed
However, if the draft declaration comes to fruition then Lila could only move to France if either

i) she and Scott satisfy the French immigration rules for sponsoring a family member, or
ii) if she is able to obtain a visa allowing her to reside in France herself (e.g. perhaps through a work visa).

Once she is resident in France legally, the couple can then exercise their free movement rights to move to another member state, or indeed, the UK if their time in France cannot be interpreted by the Home Office as being for the purpose of evading UK immigration rules.

However, were Scott to have married after establishing his residence in France, they could not use free movement rights to live in France or another member state immediately.  There will need to be

i) first, an instance of having lived in a member state together with the third country national under the domestic immigration rules and

ii) second, the EU citizen having moved to the member state (the residence in which he wishes to use as the base for the free movement exercise with his third country national spouse) only after his marriage took place.

Update added for clarity: So say I as a British citizen move to France and establish my residence there. I subsequently get married and my non-EU husband moves to France (on say a work visa under French immigration rules). We would not be able to move to the UK using free movement, because our marriage took place after my residence in France was established. Assuming these rules apply to all member states, we would not even be able to use free movement to move to Germany because the marriage took place after my residence in France was established.  However, if we move to Germany and he gets a work or spouse visa under German domestic immigration rules, and I establish residence in Germany, THEN we can move to another member state using free movement or even use free movement to move to the UK, as long as HO is not able to suggest that the purpose of my residence in France and/or Germany was to evade UK immigration rules.

There doesn't appear to be any changes for family members like elderly parents or children, for whom the free movement rights appear to be exercisable from the outset; less clear on the situation for unmarried partners...I expect the intention would be to treat them as spouses but it's not mentioned in this declaration.

So yes Surinder Singh will be harder but its not closed - the non-EU spouse will at some point need to meet at least one member state's domestic immigration rules, family life will need to have been strengthened or created living in that member state and if returning to the say the UK (if the EU citizen is British) under free movement rights, the family may be required to evidence that living in another member state and now moving to the UK was not to evade UK immigration rules...although more likely the onus on proving they were attempting to evade will remain with the Home Office but being able to disprove the very likely assertion would be helpful.

Edit: upon reflection I think the changes will make it really hard for anyone with adverse immigration history, be it just a visa refusal.  UK visa refusals may for example make it harder to get a visa for Spain and if the applicant succeeds there, then the earlier visa refusal may lead UK to suggest the move to Spain was to evade UK rules as evidenced by an earlier intention to live in the UK!  Best thing now may be well, use your FM rights sooner rather than later, and if after any such changes come into force, don't even bother applying for a UK visa if you suspect it will be refused, because the refusal is very likely to work against you in the future if you decide to move to the UK using free movement rights.  Where in any doubt, do seek legal advice.

More light no doubt will be shed over the coming weeks and maybe months especially on what will constitute 'establishing residence'.  Looking forward to lawyers providing a legal interpretation to replace my lay one!

Relevant links: The wonderful  Steve Peers, an expert on all things EU, has blogged his view on today's draft declaration.


  1. Are you able to explain the process and possible timelines from here ?
    Perhaps use my case as an example.
    My wife is British, I'm Australian, we decided to just to move to Ireland and not bother going to the UK.
    She was going to start a business and exercise treaty rights in Ireland, and I would apply for FP.

    If I'm understanding it correctly, we may have to satisfy Irelands local immigration laws, when would this become lay, is that at the end of feb if it's approved, or is there more to the process than that ?


    1. Dont know the timelines.

      So if you both decided to move to Ireland after the change come into effect, then you'll need to abide by the Irish immigration rules in order to live there - be it Irish spouse immigration rules if there as your wife's husband, or get an irish work visa for example. If you then wanted to move to the UK, the government here would need to be sure you didnt move to Ireland only to use free movement rights to move back to the UK i.e. you didnt make this move to evande UK immigration rules.

      The kinds of things they may say proves one is using FM to to evade domestic immigration rules could be things like adverse immigration history (especially say history of UK visa refusals)==> this is why Metock was mentioned in some of the earlier discussions.

  2. My husband applied to the irish embassy from Abu Dhabi four months ago and he still hasn't had a reply.Now they are saying that the irish embassy is not accepting applications front spouses of eu citizens. Don't know what's going on. We are about to give up as I am 30 weeks pregnant and have lost all hope to seeing our child enter this world together.

  3. I suggest to contact the local Irish MP for help explaining your situation. Its worth a try as they do try to help where they can.

  4. 'third country nationals who had no prior lawful residence in a Member State before marrying a Union citizen'
    Can you please elaborate on this issue? Does it mean if the national was illegal?
    My situation, I'm moving to Italy tomorrow, my non eu wife will soon join me, she is not required a visa to enter Italy due to that albania has a schengen visa agreement.
    We got married a month ago but been together for 3 years, would this effect me ?
    It states third country nationals, and Albania is classed as second world country, according to sources on the Internet, but no government website can give information regarding that matter.

    1. Sorry dont give advice through the website, and the above blog is really just one person's interpretation (mine) of a draft document - not even in force right now.

      Since your wife will be joining you 'soon' suggest you do so before the changes come through given the uncertainty.

    2. This means she doesnt know the answer.. you should resign. To busy turning this good site which was started to help Brit Cits with immigration issues into a farce by supporting refugees who are not British get into the UK..

  5. What if the said non eu spouse got a family permit for the uk and was in the uk and was going to submit the 2nd application over will it get refused

  6. it is unlikely to get this proposal to become law as it is contrary to principle of freedom of movement. This proposal is based on decision of heads of eu states meeting.

    1. Yes it's still a wait and see scenario but while this isn't closing free movement, it is, if it eventuates as drafted, a hindering of it. But no point panicking now as hopefully what you say is true! :)

  7. http://eulawanalysis.blogspot.be/2016/02/the-draft-renegotiation-deal-eu.html

    1. hi, yes we added Steve Peer's blogpost above on Tuesday night. Scrolling down to his free movement of people section provides for very informative reading.

  8. This is just a proposal and not built into treaty or eu laws. Its not easy to get these proposals to go through especially reforming freedom of movement, potentially suggested amendment will throw many legal challenges as this is contrary to existing FM Rules that will require treaty change.

    1. Yes agree, as while this isn't closing free movement, it is, if it eventuates as drafted, a hindering of it. But as you say, changes won't be easy.

  9. Mrs May will be very happy with the new proposals. No more back door into the UK.

    If you want to sponsor your spouse you will need to earn £18,600 or do without your loved ones.

    I hope the supreme court will struck down this rule.

    1. You are correct, but need to wait and see how European Commission intend to implement this. Quite complicated!
      This will require treaty change definitely.

  10. Editor's note: Debate is good; personal attacks on people who are only trying to help others are bad (especially when made anonymously); and melodramatic demands for resignations from unpaid positions with what is quite possibly the smallest org imaginable will be met with wry amusement. Offenders will have their comments struck off. This isn't exactly the fall of Rome.

  11. As a british citizen with a US spouse who is considering moving to Ireland. If these proposals move forward.
    1. Would the UK citizen need to apply for a visa to live in the EU county ie. Ireland?
    2. If the UK citizen is allowed to live and work in Ireland would the foreign spouse able to access a visa considering that their spouse/sponsor is not Irish?

    1. there's some question on whether the changes are enforceable without treaty change. But assuming they do come into play then anything I have said above and below is only based on what I THINK (I do not know). However the draft dec even as is does not stop the UK citizen from exercising FM rights for themselves, just for their non-EEA family so 1) yes. on 2) that would depend either on how Ireland applies the terms of the draft dec to itself - so spouse would fall under FM, or satisfy domestic irish immigration rules.