Proposal aims to restrict ‘Surinder Singh’ route that gives UK residence rights to non-European spou

[MESmith]

From today's Guardian

http://www.theguardian.com/uk-news/2016/feb/16/immigration-loophole-for-foreign-born-spouses-could-close-under-draft-eu-rules

[bobrussell]

Not that surprising. There are companies advertising packages that make this route simpler. They even provide the accommodation and 'economic activity'! Clearly this is misuse of the immigration rules.

It makes a nonsense of the obstacles people face doing the thing by the rules. They just need to make the rules a bit fairer and allow some flexibility then Surinder Singh would just go away naturally.

Sad that they seem to consider a non-EU spouse to be such a problem when it is EU citizens that make up the bulk of immigration numbers.

[MESmith]

Not that surprising. There are companies advertising packages that make this route simpler. They even provide the accommodation and 'economic activity'! Clearly this is misuse of the immigration rules.

It makes a nonsense of the obstacles people face doing the thing by the rules. They just need to make the rules a bit fairer and allow some flexibility then Surinder Singh would just go away naturally.

Sad that they seem to consider a non-EU spouse to be such a problem when it is EU citizens that make up the bulk of immigration numbers.

And a drain on welfare benefits!

[brewsterbudgen]

What is the Supreme Court ruling on? Could it throw out the minimum income threshold in its entirety?

[bobrussell]

Decided in the favour of the UK government as far as the minimum income threshold.

The full Monty: http://www.bailii.org/ew/cases/EWCA/Civ/2014/985.html

In simplest terms it confirms that there is no constitutional right under the 1971 Immigration Act for a British citizen to reside in the UK with his or her non-EU spouse. The aim of the legislation was to 'protect the economic interests' of the country.

Next appeal to be heard between 22nd and 24th February 2016. In effect, appealing the appeal!

I doubt there will be a major change in the law but it would be nice to see a more flexible approach.

[Richard W]

The draft declaration is available on-line. I wonder what 'prior lawful residence' means. Would 'temporary residence' in the UK on a spouse visa count as lawful residence?

I guess that's goodbye to free visas for visits by many Thai-only wives of EU citizens resident in Thailand.

[brewsterbudgen]

And all this because Cameron foolishly made an EU referendum a manifesto commitment as a sop to his Eurosceptics and due to a fear that UKIP would cost him the election.

Edited February 17, 2016 by brewsterbudgen

[Richard W]

And all this because Cameron foolishly made an EU referendum a manifesto commitment as a sop to his Eurosceptics and due to a fear that UKIP would cost him the election.

Not entirely. Denmark and the Netherlands don't like Surinder Singh either, and Spain seems deliberately obstructive towards non-EU family members immigrating from outside. He's more the disruptive element that enables a change that's been coming for some time.

[whiterussian]

"Critics argue the current law on spousal visas penalises around 43% of the UK population" <deleted>

[7by7]

And all this because Cameron foolishly made an EU referendum a manifesto commitment as a sop to his Eurosceptics and due to a fear that UKIP would cost him the election.

Indeed.

What the majority, including some members here, don't realise is that any changes to the freedom of movement treaty and the rights derived from it will effect all member states, not just the UK, and so British citizens wishing to travel to or live in other member states and not just EEA national members coming to the UK.

Of course, the overwhelming majority of British citizens wont be effected so don't care. All they see is the myth propounded by papers like the Daily Mail of vast numbers of Eastern Europeans coming to the UK to live of the state.

Until they find that the UK withdrawing from the treaty means they may need a visa for their holiday in Europe and that their dream of retiring to the Costas is now a visa nightmare. By which time it will be too late.

[bobrussell]

The key change in the draft would prevent someone using residence in another EU country to by-pass the immigration requirements of the home country.

Why should it be OK for a dodgy agent in the UK to sort out accommodation and a non-existent job specifically to allow someone to avoid the financial rules, language requirements etc. This is not fair and should be stopped.

Anyone living in another country, with a genuine job, kids in the local schools, that decides to return some time later will still have the existing rights.

[tebee]

It's very vaguely worded - I wonder if this is deliberate, so that different people can assume the meaning they want from it ?

[7by7]

I agree that Surinder Singh is currently open to abuse, and probably is abused in some cases.

But, remember,Surinder Singh is just one part of the proposed changes to the treaty.

Of course, my final paragraph is dependent on the referendum result being to leave the EU.

Whilst this would not necessarily mean leaving the EEA as well, not doing so would make a farce of the whole thing as one of the main arguments being presented by the anti EU side is the supposed drain on the UK's resources caused by the freedom of movement treaties!

[tebee]

.....................................

Until they find that the UK withdrawing from the treaty means they may need a visa for their holiday in Europe and that their dream of retiring to the Costas is now a visa nightmare. By which time it will be too late.

Though that will depend on if we also leave the EEA as well - Free movement and and Free trade are EEA treaties not EU ones.

Of course if we leave the EU, but stay in the EEA for the free trade like Switzerland, the UK is also stuck with the free movement part too and won't even get Cameron's changes applied as we will have no say anymore!

[Richard W]

Until they find that the UK withdrawing from the treaty means they may need a visa for their holiday in Europe and that their dream of retiring to the Costas is now a visa nightmare. By which time it will be too late.

I strongly doubt holidays will be affected - or is Spain willing to undertake the work to exclude yobbos? Retirement may indeed be affected.

Anyone living in another country, with a genuine job, kids in the local schools, that decides to return some time later will still have the existing rights.

Clearly I am having a problem with my English. Could you explain how that works. The key text is highlighted in red.

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.

The simplest problem scenario is:

1) Englishman (or Dutchman) meets Thai girl and marries her in Thailand. She had never left Thailand, so she had no prior lawful residence in a Member state before they married.

2) They move to Germany and live there for many years. The Thai girl does not surrender her Thai nationality to become German.

3) They try to move to England. She does not qualify as a non-EEA family member, despite having been in Germany legally.

She will have to start the normal spouse visa route, and the family must meet the financial requirement.

Similarly, my wife and I are going to lose out freedom of movement rights until my wife becomes British. I married her before she'd ever left Thailand, and we as a couple will lose the EEA freedom of movement rights.

What have I misunderstood?

Now 'lawful residence' is apparently not a clear term. Perhaps a girl who came to England on a fiancée visa and married just before the six months expire will qualify for non-EU family member rights, while a similar girl who married within a month will not! Some think there will be a three month threshold to qualify as 'lawful residence' - it wasn't my idea.

Of course if we leave the EU, but stay in the EEA for the free trade like Switzerland, the UK is also stuck with the free movement part too and won't even get Cameron's changes applied as we will have no say anymore!

The changes may be pushed through regardless. Denmark and the Netherlands probably like them.

[tebee]

The strange thing is even if these proposals are implemented it won't stop Surinder Singh, just make it harder.

It's possible to get a visa to some countries much more easy than to get one to the UK. You fiance say gets a student visa in Bulgaria. You go there, marry her, start a business selling things on Ebay or whatever and six months later you can return to the UK.

And those who use the spouse visa to bring their wife to the UK will also find themselves disadvantaged, as that spouse will now have no free movement rights. So if they want to go to Spain on holiday they will have to apply for a visa with her as a foreign national, not an automatic one. If they get a good job offer in Stuttgart they will have to go through the whole immigration process again and if they want to return to the UK go through it a third time.

It seems to be a major impediment to free movement.

[Richard W]

The strange thing is even if these proposals are implemented it won't stop Surinder Singh, just make it harder.

It's possible to get a visa to some countries much more easy than to get one to the UK. You fiance say gets a student visa in Bulgaria. You go there, marry her, start a business selling things on Ebay or whatever and six months later you can return to the UK.

However, if you're already married, can you undo the disqualification by divorcing? I suspect I wouldn't be able to undo the disqualification by getting a quickie divorce in Thailand and then remarrying. I rather fear the first rather than latest marriage of a couple would be counted.

[Richard W]

The draft declaration is available on-line. I wonder what 'prior lawful residence' means. Would 'temporary residence' in the UK on a spouse visa count as lawful residence?

On rereading, that seems to be a silly question. You don't get a spouse visa unless you're married, so the question would only be relevant if the condition for disqualification from free movement were different to its plain reading, as I read it. (I'm still waiting for Bob Russell to explain my reading problem.)

[tebee]

Note it says "lawful residence" not "lawful permanent residence", surely that just means you have to have a valid visa at the time - though I realize it means something slightly different under UK immigration law - it might just be a case of it meaning one thing to the British delegation and a different one to the rest of Europe.

And indeed, what happens to all the people who were married before these new regulations are introduced ? Depending on timing the spouse may or may not have freedom of movement rights - it seems very unfair to punish them for things they could not have known at the time.

[Trevor1809]

The key change in the draft would prevent someone using residence in another EU country to by-pass the immigration requirements of the home country.

Why should it be OK for a dodgy agent in the UK to sort out accommodation and a non-existent job specifically to allow someone to avoid the financial rules, language requirements etc. This is not fair and should be stopped.

The whole business of spousal immigration isn't fair but I don't see anybody dealing with any of that. Get a dodgy agent making some money out of immigration and suddenly it isn't fair.

What is fair about making tax paying spouses pay the NHS surcharge for instance. What is fair about refusing visas the expecting people to incur appeal fees yes I know the actual appeal fee is refunded, I am referring to legal fees)

[Donutz]

The blog on EU law usually is very informative. On the SS route and the proposed changes it says this:

From:

http://eulawanalysis.blogspot.nl/2016/02/the-final-uk-renegotiation-deal.html

(...)

EU citizens family members

(...)

In his 2014 speech, David Cameron announced his desire to end all distinction between EU citizens and UK citizens as regards admission of non-EU family members, by allowing the UK to impose upon the EU citizens the same strict conditions that apply to UK citizens. Since this would have deterred the free movement of those EU citizens who have non-EU family members, there is a good chance that it would have required not just a legislative amendment but a Treaty change. (Note that according to the CJEU, EU free movement law does not just require the abolition of discrimination between UK and other EU citizens, but also the abolition of non-discriminatory obstacles to free movement).

However, the deal does not go this far. The main Decision states that:

In accordance with Union law, Member States are able to take action to prevent abuse of rights or fraud, such as the presentation of forged documents, and address cases of contracting or maintaining of marriages of convenience with third country nationals for the purpose of making use of free movement as a route for regularising unlawful stay in a Member State or for bypassing national immigration rules applying to third country nationals.

The Commission Declaration then states that it will make a proposal to amend the citizens Directive:

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.

That Declaration also states that the Commission will clarify that:

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; and

The concept of marriage of convenience - which is not protected under Union law also covers a marriage which is maintained for the purpose of enjoying a right of residence by a family member who is not a national of a Member State.

It seems clear that these clarifications will not be included in the legislative proposal, since the declaration later concludes (emphasis added):

These clarifications will be developed in a Communication providing guidelines on the application of Union law on the free movement of Union citizens.

Lets examine the planned legislative amendments, then the guidelines which will provide clarifications. The amendments will exclude two separate categories of non-EU citizens from the scope of the citizens Directive: those who did not have prior lawful residence in a Member State before marrying an EU citizen who has moved to another Member State; and those who marry such an EU citizen after he or she has moved to a Member State. For these people, national immigration law will apply.

(...)

Several points arise. First, the basic definition: what is lawful residence exactly? Presumably it means more than lawful presence, ie a stay of three months on the basis of a valid visa or visa waiver. But what about ambiguous cases, such as a pending asylum application or appeal?

(...)

As for the clarifications in future guidelines, they will of course not be binding. They first of all refer to cases where an EU citizen has moved to another Member State and come back to the home State. The definition of what constitutes a sufficiently genuine move to another country is set out in the case law (three months stay with a family member) and mere guidelines cannot overturn this.

It should be noted that the Surinder Singh case law is in any event derived from the Treaty. This line of case law does not accept that such movement between Member States is an evasion of national law as long as free movement rights are genuinely exercised with a family member for a minimum time. The CJEU also usually assumes (see Metock, for instance) that a marriage of convenience cannot apply to cases where there is a genuine relationship, even if an immigration advantage is gained. (The Commission has released guidelines already on the marriage of convenience concept: see analysis by Alina Tryfonidou here).

Having said that, the planned legislative changes will complicate the plans of people who wish to move to another Member State with their non-EU family and then move back, since national immigration law will apply to their move to the host Member State. It will be important to see how the legislative amendments address the transitional issues of people who have already moved to a host Member State before the new rules apply. Can the home Member State say, possibly based on the Commissions guidance (which might be issued before the new legislation is adopted) that those families must now obtain lawful residence in the host State for the non-EU family member, before the non-EU family member can come to the home State?

Longer waiting periods for free movement of persons from new Member States

Finally, it should be noted that the Decision briefly refers to Camerons plan to have longer waiting periods for free movement of persons in future accession treaties. It does not incorporate his suggestion, but merely notes it. However, since the details of each new Member States adaptation to EU law are set out in each accession treaty, which has to be approved by each Member State, the UK can simply veto any future accession treaties unless longer waiting periods for free movement are indeed included. The next accession to the EU is at least four years away, probably more. So nothing really turns on the absence of agreement with the UKs position for now.

From reading that, the effects on the EU/SS route seem rather minor. The biggest change seems to be on social benefits for EU migrants and I guess that will be fought out in court (why pay for something if you cannot use it yourself?).

[Richard W]

Well, I've finally worked out the motivation for the red part of the declaration:

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.

It's a point by point reversal of the Metock judgment, which answered three questions posed by the Irish High Court, summed up by Wikipedia as:

• Does Directive 2004/38 ("the Citizenship Directive") permit a member state to maintain a prior lawful residence requirement, as did Irish legislation?
• Does Article 3(1) of the Citizenship Directive 2004/38 include within its scope of application a non-EU national who is a spouse of a Union citizen who resides in the host member state, and then resides in the host member state with the Union citizen as his/her spouse irrespective of when or where their marriage took place or how the non-EU national entered the host member state?
• If the answer to 2 was negative, whether Article 3(1) includes non-EU nationals who entered the host member state independently of their spouse and subsequently married them there.

The judgement said 'No, Yes, N/A'. When implemented as law, the declaration will answer 'Yes, not necessarily, no'. I'm not entirely sure where 'before marrying a Union citizen' comes from; I think it's to block loopholes.

At the time of the judgement, the British Immigration (European Economic Area) Regulations 2006 also contained a requirement for lawful residence in an EEA state - unless one could make it to a British port or border post. (Plane and ship operators are good at protecting British ports from immigrants without visas.)

The Danish prime minister, Lars Løkke Rasmussen, seems very happy about it:

We get Metock ruling rolled back. Now we roll the legal situation back to what it was before the Metock judgment was rendered.

Source: http://www.ruleoflaw.dk/utopien-om-prae-metock/ (Danish; I can't find any reports in English.)

David Cameron is quite pleased about:

And an end to the ridiculous situation where EU nationals can avoid British immigration rules when bringing their families from outside the EU.

Source: https://www.gov.uk/government/speeches/pms-statement-following-european-council-meeting-19-february-2016

This change is quite a blow against the first stage of Surinder Singh.

Now, the white(?) paper says, "all non-EU nationals will have to meet the immigration controls of the first Member State that they enter", but I haven't yet worked out how the regulations could be worded so that they didn't permanently lose the right of free movement.