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Saturday, 20 February 2016

The final UK renegotiation deal: immigration issues




Steve Peers*

So David Cameron has achieved his deal on the renegotiation of the UK’s EU membership (full text of that deal here). This is the first of a series of posts on the final deal – starting with the issue of ‘EU immigration’ (or, from the EU law point of view, the free movement of EU citizens). This builds on (and partly recycles) my earlier post on the EU immigration issues in the draft deal.

I will write later about the other substantive issues (competitiveness, Eurozone relations, sovereignty) and on the legal form of the deal (although see already my post on the legal form of the draft deal; my comments there won’t change much when I update them in light of the final deal). And see also Katarzyna Granat's analysis of the 'red card' for national parliaments – again, the final text of the deal doesn’t differ from the draft here).

The deal takes the form of seven legal texts: a Decision of the EU Member States’ Heads of State and Government (the ‘Decision’); a Statement of the Heads of State and Government (which consists of an agreed Council Decision); a Declaration by the European Council (which consists of the EU Member States’ Heads of State and Government, although when acting collectively they are legally distinct from the European Council): and four declarations by the Commission. Of these, Section D of the draft Decision and three of the Commission declarations relate to immigration issues. One of these Commission declarations (relating to child benefit exports) was added during the negotiation, while the text of Section D and another declaration (on the ‘emergency brake’ in in-work benefits) was amended. The other declaration (on so-called ‘abuse’ of free movement) was not changed.

While Section D contains some important attempts to clarify EU free movement law, the key feature of the deal on immigration is the intention to propose amendments to the three main current EU laws. These three laws are: (a) the EU citizens’ Directive, which sets out the main rules on most EU citizens moving to other Member States: (b) the EU Regulation on free movement of workers, which contains some specific rules on workers who move; and (c) the Regulation on social security, which sets out rules on coordination and equal treatment in social security for those who move between Member States. 

All three sets of amendments are to be proposed by the Commission as soon as the main Decision enters into effect. That will happen (see Section E of the Decision) as soon as the UK announces that it will remain a member of the EU – if, of course, the UK public vote to remain in the upcoming referendum. The deal includes a commitment from the Commission to make these proposals, and from the other Member States to support their adoption in the EU Council (oddly, the latter commitment does not apply to the planned amendment to the citizens’ Directive, since that proposal is not referred to in the main Decision).

However, all three proposals will be subject to the ‘ordinary legislative procedure’, meaning that they have to be agreed with the European Parliament. It is also possible that their legality would be challenged before the EU Court of Justice. I can’t appraise the political likelihood of the European Parliament approving the proposals, although the largest party (the European People’s Party, made up essentially of centre-right parties like Angela Merkel’s Christian Democrats) has announced that it supports the renegotiation deal in principle, subject to examination of the details. However, I offer some thoughts below about possible challenges to the legality of these laws if they are adopted.

Unlike some other parts of the deal (on the position of non-Eurozone states, and the exemption of the UK from ‘ever closer union’), there is no mention of future Treaty amendments to give effect to any part of the text dealing with free movement (immigration) issues. So the main impact of the deal in this area will come from the three legislative proposals, once adopted. Since those proposals will not be tabled or agreed until after the UK ‘Remain’ vote (if there is one), this means that the analysis of the details is necessarily somewhat speculative. There are some important points of detail that will only be clear once the legislation is proposed and approved. I flag up some of those finer points below.

Although the press discussion has focussed on the ‘emergency brake’ in in-work benefits, there are three categories of issues: benefits (including a couple of points besides that emergency brake); the family members of non-EU citizens; and EU citizens who commit criminal offences. I refer back to Cameron’s November 2014 speech on EU immigration issues (which I analysed here) where relevant.

It should be noted that there is no text in the deal on two of the issues which Cameron had raised: removal of job-seekers if they do not find a job within six months, and a requirement to have a job offer before entry. Both these changes would have required a Treaty amendment, in light of the Antonissen judgment of the CJEU.

Benefits

There are three benefits issues in the draft deal: (a) the ‘emergency brake’ for in-work benefits; (b) the export of child benefit; and (c) benefits for those out of work.

‘Emergency brake’ on in-work benefits

Cameron had called for no access to tax credits, housing benefits and social housing for four years for EU citizens, but later signalled his willingness to compromise on this point. The position of non-workers and job-seekers is discussed below; but the position of workers is legally and politically difficult, since the Treaty guarantees them non-discrimination.

In the end, the deal provides not for permanent discrimination on this issue, but temporary discrimination on the basis of an ‘emergency brake’. The Commission will propose legislation on this issue, which will provide that the UK (or other Member States) can apply a four-year ban on in-work benefits, subject to substantive and procedural criteria. Procedurally, the rules will say that a Member State will apply to the Council to authorise the ban. The Council will presumably act by the default voting rule in the Treaties: a qualified majority on a proposal from the Commission. That means no single Member State can veto the request to pull the brake. The final deal leaves vague the exact authorisation process which will apply in the Council, to avoid annoying the European Parliament (EP); but that detail will have to be addressed sooner or later. Certainly the EP will have to approve the legislation which sets up that process in the first place; the question is whether it would have a role deciding if the brake should be pulled.

A Commission declaration states the UK qualifies to pull this ban immediately, in particular because it did not apply transitional controls to workers from new Member States in 2004. However, there is nothing in the deal to suggest that Member States – who would have the final word – also agree. The restrictions would only to those who were ‘newly arriving for a period of seven years’, and would have to be phased out during that time. Again, the seven years matches the transitional period which the UK could have applied to control the numbers of workers from new Member States, back in 2004.

Several points of detail arise. First of all, after the seven years have expired, it’s not clear how much time would then have to pass before the brake could be applied again. Secondly, it will be important to clarify the meaning of those who are ‘newly arriving’. What about those who lived in the UK before, and are now returning here? How much time would they have had to spend in Poland (say) before they are considered ‘newly arriving’ again? Presumably the brake would not apply to those who are already here when the brake is pulled, but are not working at that time (due to youth, unemployment, childcare or illness) but who get work afterward.  

Thirdly, it will be necessary to define how to calculate the four year period. It’s easy enough to apply it to those who begin work as soon as they (newly) arrive in the country, and who work for the full four years afterward. But what about those (a non-working spouse, or a teenager, for instance) who start work some time after they enter the country? What about those who start work, stop for whatever reason and then restart? What about those who start work during the brake period, then spend a year or so in Poland, then come back? And how can we be sure when exactly someone entered the country in the first place?

The final crucial point of detail is, obviously, the grounds on which the brake can be applied. According to the Decision, it would apply where:

‘an exceptional situation exists on a scale that affects essential aspects of [a Member State’s] social security system, including the primary purpose of its in-work benefits system, or which leads to difficulties which are serious and liable to persist in its employment market or are putting an excessive pressure on the proper functioning of its public services’.

There’s certainly a widespread perception that one of more of these problems exist in the UK and are caused by the large increase in the number of workers from other Member States in recent years. However, there are two serious problems with the proposed mechanism. Firstly, as Jonathan Portes has argued, objective evidence for this view is lacking. Secondly, while the CJEU has been willing to accept certain limits to free movement rights on the grounds of protecting health systems (see my prior blog post for details), this would have a much more far-reaching impact on non-discrimination for workers. It’s certainly conceivable that by analogy from the Court’s obvious willingness to keep EU monetary union afloat, along with its endorsement of restrictions for non-workers in recent years (see below), it might accept that these plans do not violate the Treaties. But as EU law currently stands, that is probably a long shot.

Export of child benefit

Cameron sought to end payment of child benefit to children living in other Member States. This payment is provided for in the EU social security coordination Regulation, which would have to be amended to change those rulesThere was a strong argument that the plan would have breached the Treaties, since in the case of Pinna the CJEU struck down EU legislation that allowed Member States not to export such benefits at all as a breach of the rules on free movement of workers.

The deal does not go as far as Cameron wanted: instead child benefit can be limited by indexing it to the ‘conditions’ in the receiving State. This will only apply to ‘new claims made by EU workers in the host Member State’; but after 1 January 2020, this ‘may’ be extended to ‘existing claims already exported by EU workers’. This is clarified by the Commission declaration, which states that the ‘conditions’ refers to the ‘standard of living and level of child benefits’ in the child’s State of residence. The transitional rule, and the Commission declaration, were added during negotiations. It’s an open question whether this new law would breach the Treaties, since there is no case law on the point.

Several points of detail arise here. It’s explicit that the new rules will be optional, so Member States can still be more generous if they want to. There’s nothing to limit their application to the UK (although I will refer to the UK and Poland here, purely for the sake of readability). It’s not clear whether the rules will also apply to British citizens who have children in other Member States; arguably the principle of non-discrimination will require that they do. It’s also not clear what happens to ‘mixed’ families of (say) British and Polish parents (or indeed step-parents). Will it depend on which parent is the worker? What if both are workers? What if that changes over time?

The transitional clause also raises issues. The Decision distinguishes between ‘new claims’ and ‘existing claims already exported by EU workers’. Presumably the new law will state a precise date at which claims can be regarded as ‘existing’ (say 1 January 2017). These must be existing exported claims, so if a child moves to Poland after 1 January 2017, or is born after that date and resides in Poland, then child benefits could be reduced, even if the worker is already in the UK. So if my estimated date is correct, anyone who is thinking about having a child, and who wants to avoid the application of these rules, had better get a move on. Perhaps this Easter will be the season of fertility even more than usual.

Finally, it should be noted that a challenge by the Commission to other aspects of UK payment of child benefit to EU citizens is still pending. The non-binding opinion of an Advocate-General argues in favour of the UK in this case (for a critical view, see Charlotte O’Brien’s analysis here). It wouldn’t surprise me if the Commission quietly withdrew this legal challenge. You read that here first.

Benefits for those out of work

Cameron sought to end social assistance for job-seekers. The EU legislation already rules out social assistance for job-seekers, so this reflects the status quo. Although the CJEU has said that job-seekers have a right to access benefits linked to labour market participation, if they have a link already with the labour market in question, it took a narrow view of this rule in the judgment in AlimanovicPure benefit tourists (who have never had work in the host State) are not entitled to benefits, according to the judgment in Dano. So the Decision simply reiterates this case law, which has already satisfied Cameron’s main objectives in this field. It should be noted that another judgment by the Court of Justice on EU benefits issues is due next week.

EU citizens’ family members

Under the EU citizens’ Directive, currently EU citizens can bring with them to another Member State their spouse or partner, the children of both (or either) who are under 21 or dependent, and the dependent parents of either. This applies regardless of whether the family members are EU citizens or not. No further conditions are possible, besides the prospect of a refusal of entry (or subsequent expulsion) on grounds of public policy, public security or public health (on which, see below).

In principle EU law does not apply to UK citizens who wish to bring non-EU family members to the UK, so the UK is free to put in place restrictive rules in those cases (which it has done, as regards income requirements and language rules). However, the CJEU has ruled that UK citizens can move to another Member State (the ‘host Member State’) and be joined by non-EU family members there, under the more generous rules in the EU legislation. Then they can move back to the UK (the ‘home Member State’) with their family members, now invoking the free movement rights in the Treaties. This is known in practice (in the UK) as the ‘Surinder Singh route’, because of the name of the case which first established this principle. In 2014, the CJEU clarified two points about this scenario (as discussed by Chiara Berneri here): (a) it was necessary to spend at least three months in the host Member State exercising EU law rights and residing with the family member, before coming back; and (b) the EU citizens’ Directive applied by analogy to govern the situation of UK citizens who return with their 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.’

Let’s 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.

The background to this proposal is CJEU case law. In 2003, in the judgment in Akrich, the CJEU ruled that Member States could insist that non-EU family members had previously been lawfully resident in the Member State concerned (previously no such rule appeared to exist). But in 2008, in Metock, the CJEU overturned this ruling and said that a prior legal residence requirement was not allowed.

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? EU legislation says that asylum-seekers can usually stay until the application fails (if it fails), and then during the appeal (subject to some big exceptions). According to the CJEU, the EU’s main rules on irregular migrants therefore don’t apply to asylum-seekers whose application is pending.

Secondly, it’s odd to refer to national law alone, since sometimes EU law governs the admission of non-EU nationals. Even the UK (along with Ireland) is bound by the first-phase EU asylum law, and by the EU/Turkey association agreement. Denmark is bound by the latter treaty. And all other Member States are bound by the second-phase asylum law, along with EU legislation on admission of students and researchers and some categories of labour migrants (the highly-skilled, seasonal workers and intra-corporate transferees).

Thirdly, it’s arguable that the EU principle of non-discrimination applies. That would mean, for instance, that if a German woman already in the UK married her American husband, the UK would have to treat her the same as a British woman in the same situation – but no worse. This would in fact be relevant to every Member State – there’s nothing in this part of the deal that limits its application to the UK. (One important point of detail is whether all Member States would be obliged to apply the new rules on ‘prior lawful residence’ and ‘marriage after entry of the EU citizen’, or whether they could choose to waive one or both of those rules. The EU citizens’ Directive already states that Member States can apply more liberal standards if they wish to).

Finally, the consequences of the rule will need to be clearer in the future legislative amendments. Does the exclusion from the scope of the Directive mean that the family member is excluded forever from the scope of the citizens’ Directive – even if the person concerned is admitted pursuant to national immigration law? That would mean that national immigration law (or EU immigration legislation, in some cases) would continue to govern issues such as the family member’s access to employment or benefits, or subsequent permanent residence. It’s also not clear what happen to children such as the step-child of the EU citizen, or a child that was born to the EU and non-EU citizen couple while living in a third country.

Could this legislative amendment violate the EU Treaties? In its judgment in Metock, the Court referred almost entirely to the wording of the citizens’ Directive. It mainly referred to the Treaties when concluding that the EU had the competence to regulate the status of EU citizens’ third-country national family members. But it also referred to the Treaty objective of creating an ‘internal market’, as well as the ‘serious obstruct[ion]’ to the exercise of freedoms guaranteed by the Treaty, if EU citizens could not lead a ‘normal family life’. It must therefore be concluded that there is some possibility that the revised rules would be invalid for breach of EU free movement law.

Would the amendment violate the EU Charter right to family life? That’s unlikely. While the right to family life is often invoked to prevent expulsions of family members, the case law of the European Court of Human Rights gives great leeway to Member States to refuse admission of family members, on the grounds that the family could always live ‘elsewhere’ – as the CJEU has itself acknowledged (EP v Council). There is some possibility, though, that the CJEU would be reluctant to follow that case law (EP v Council concerns families entirely consisting of non-EU nationals) in the context of free movement: the idea that you could go away and enjoy your family life somewhere else is antithetical to the logic of free movement.

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 Commission’s ‘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?

Criminality and free movement law

The Treaties allow for the refusal or entry or expulsion of EU citizens on ‘grounds of public policy, public security or public health’. The citizens’ Directive sets out detailed substantive and procedural rules on this issue, which has been the subject of considerable CJEU case law.

What does the renegotiation deal do? First of all, the Decision states that:

‘Member States may also take the necessary restrictive measures to protect themselves against individuals whose personal conduct is likely to represent a genuine and serious threat to public policy or security. In determining whether the conduct of an individual poses a present threat to public policy or security, Member States may take into account past conduct of the individual concerned and the threat may not always need to be imminent. Even in the absence of a previous criminal conviction, Member States may act on preventative grounds, so long as they are specific to the individual concerned.’

To this end, the Commission declaration states that it will:

‘also clarify that Member States may take into account past conduct of an individual in the determination of whether a Union citizen's conduct poses a "present" threat to public policy or security. They may act on grounds of public policy or public security even in the absence of a previous criminal conviction on preventative grounds but specific to the individual concerned. The Commission will also clarify the notions of "serious grounds of public policy or public security" and "imperative grounds of public security" [grounds for expelling people who have resided for longer periods in a host Member State].  Moreover, on the occasion of a future revision of [the citizens’ Directive], the Commission will examine the thresholds to which these notions are connected.’

It’s not clear whether the revision of the Directive referred to at the end here is as imminent as the proposal to amend the rules to create a ‘prior lawful residence’ rule for non-EU family members. Otherwise the plan to issue guidelines is clearly not binding. The language in these guidelines partly reflects the existing law, but some features are new: the greater emphasis on past conduct, the lesser need to show that a threat is imminent and the possibility of expelling someone as a ‘preventative’ measure.

These changes fall within the scope of Cameron’s desire to have ‘stronger measures to deport EU criminals’. However, it should be noted that there is no specific reference to his plans for ‘tougher and longer re-entry bans for foreign rough sleepers, beggars and fraudsters’. While a conviction and re-entry ban for fraud might be covered by the guidelines referred to above, there’s no mention of clarifying entry bans as regards those guidelines, or changing the legislation on this issue. Also, as I noted in my comments on Cameron’s plans at the time, EU legislation does not allow for re-entry bans for rough sleepers and beggars, since the EU citizens’ Directive states unambiguously that a ban on entry cannot be imposed where a person was expelled for grounds other than public policy, public security and public health. Put simply, a Member State can impose an entry ban where an EU citizen has been expelled due to criminality – but not where he or she has been expelled due to poverty.

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

Finally, it should be noted that the Decision briefly refers to Cameron’s 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 State’s 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 UK’s position for now.

Conclusion

The key point to remember about the renegotiation deal, particularly as regards EU immigration, is that it consists of different parts. The main deal takes the form of a Decision, which essentially clarifies EU law without amending it. According to CJEU case law (Rottmann), the Court is willing to take Decisions like these into account when interpreting EU law.

However, in the area of EU immigration, the other parts of the deal are more relevant: the intention to pass three new EU secondary laws. Those new laws will be a fully-fledged amendment to existing EU rules, not simply a clarification of it. While some points of detail remain to be worked out, it is clear from the deal that the Commission will make proposals in these areas, and all Member States (ie the Council) will support them. It remains to be seen whether the European Parliament will approve them, and whether the CJEU would accept challenges to their legality. My assessment of the Court’s likely response, as detailed above, is that the amendments on family members will probably be acceptable; the child benefit reforms are an open question; and the changes on in-work benefits are highly vulnerable. Of course, there’s no prior case law on these specific issues, and so we can’t be certain of the Court’s approach in advance.

Overall, as I concluded in the earlier post on the draft agreement, these changes, if they are all implemented as planned, will fall short of a fundamental change in the UK’s relationship with the EU. But equally it is clearly wrong to say that they mean nothing – if in fact they are implemented. The changes would be modest but significant: amendments to three key pieces of EU legislation that would for the first time roll back EU free movement law, not extend it. Leaving aside the calls for non-binding guidelines, there would be cutbacks in in-work benefits (albeit for a limited period), significantly more control on the admission of non-EU family members of EU citizens, and more limited export of child benefit.

Barnard & Peers: chapter 13

Photo credit: www.telegraph.co.uk

*Disclosure: I will be consulting for the European Parliament on the free movement aspects of the renegotiation. However, my advice will be fully independent; I don't represent or advocate for the European Parliament (or anyone else) on these (or any other) issues.

142 comments:

  1. Thanks, Steve. Just one small comment. There are other examples of "EU legislation that ... roll back EU free movement law, not extend it". For sure, they are not key pieces of legislation, or as wide ranging as these. But from the 1980s the European Union legislature has been "rolling back" some of the social security Regulation. The mis-named Patients Rights Directive is another example.

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  2. So what does it all mean for Brits married to nonEU people... is leaving the EU a better deal?

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    1. The answer to that question entirely depends on what would happen after Brexit, concerning: (a) EU/UK relations as regards free movement of people; and (b) whether UK law on the family members of UK citizens might change. As it stands, we don't know what would happen on either point.

      If free movement law ceases to apply things would likely be worse for UK citizens married to *EU* citizens - other than Irish people, where presumably special rules (the 1949 Ireland Act) will still apply.

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  3. Can you please clarify the following:
    Will the suggested guidelines only apply for people that want to move back to the home member state? Lets assume that you live with your noneu spouse in a host eu country and do not wish to come back, will the suggested guidelines apply as well? Is it likely that all other eu countries will adopt the same guidelines, specifically Denmark is in my interest. Will the guideline apply to people already enjoying the free movment right with their noneu spouse, and if yes, when will it become effective. (Lets say that you almost resided with your non-eu spouse in lets say Denmark for 4.5 years and he or she will be eligible for permanent residence after five years of legal residence, could the new guidlines possibly change the outcome of the right to permanent residence?

    I would be very appreciated if you could give your thoughts on my questions.

    Best Regards, the Swede.

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    1. The Commission declaration says that one part of the planned guidelines (on 'evasion of national immigration rules') will apply to return to the home State. The other part (the redefinition of 'marriages of convenience' to include marriages 'maintained' for an immigration advantage) will apparently apply more generally.

      We don't know about the transitional issues (including the permanent residence point) until the legislation is agreed and adopted. But EU law changes are usually not retroactive.

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    2. Maybe it will mean SS couples staying in the host country until the non-EU has obtained PR/Citizenship there?

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    3. That would solve the problem of return to the UK (assuming that the UK would not just try to refuse to recognise the permanent residence as an attempt to evade immigration law), except it would not solve the problem that the planned new law would create for those who seek to move to a host Member State for the first time.

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  4. If the rules concerning family members are implemented the EU will be discriminating against EU citizens married to Non-EU citizens. Since it doesn't mention anything about other family members. It's also a betrayal of the very principles of freedom of movement.

    I hope it's not adopted and there are immediate challenges of they are.

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    1. The EU rules already include some distinction between EU citizens with non-EU family members as compared to others with EU family members. No-one has argued this type of non-discrimination argument before the CJEU as far as I know, it could be worth a try. I wouldn't count on the Court accepting it though - I think it is more likely to say there are intrinsic differences with non-EU citizens, since they are usually not covered by EU free movement law. The better argument is the impact on free movement, and the need to interpret the right to family life in light of free movement.

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    2. Agreed. I think this is probably the major outcome of the renegotiation yet the press don't seem to have picked up on it. It is effectively the end of free movement of (many) EU citizens with non-EU family in tow. Lots of people will not meet these requirements and, as we know, UK immigration law is a nightmare. Theresa May got her way in blitzing EEA(FM) applicants - now sure if I'm in awe or horror. I really hope something can be done. Difficult to stomach that we (non-EU fam of EU nationals) will no longer have rights in Europe post 23/06.

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    3. EU citizens with non-EU family will still be able to move to another Member State with the non-EU family member if the family member can meet the immigration law requirements of that other Member State. It might then be harder to return to the UK with the family member; let's see. But I don't think it's a given that it's impossible to meet the family reunion rules. It might of course be difficult to find work and speak the language of some of the countries with more liberal laws - but research into those laws first.

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  5. I am unclear what the deal would mean for someone like me, who has been living in England for 30 years, who draws some benefits and who is self-employed. Would it help me to apply for a permanent residence card? Many thanks for your answer...

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    1. Thanks for your question Anne-Laure. I can't give advice on individual cases. In general though EU free movement law means that self-employed EU citizens can get equal treatment for top-up benefits and they are entitled to EU permanent residence status after five years' residence on the basis of EU law. The new laws shouldn't change that as such, although they would mean that EU workers coming in future might not be able to get those in-work benefits from the UK for a time.

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    2. Thank you Steve Peers. I guess the devil will be in the detail. In the meantime, not knowing exactly what's what is quite a stressful situation to be in... I guess a piece of advice for anyone in a similar situation is also to make sure that we keep any bit of proof of residence and professional/earning activity.

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    3. Dear Anne-Laure, If you're an EU citizen then I believe you qualify for permanent residence already and the new proposed rule doesn't affect you at all. Seeing as it's stressing you I'd strongly recommend contacting the Citizens Advice Bureau, or your local 'Law Centre', if there is one, to get it formally clarified for you. Good luck.

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  6. Please clarify this statement"

    "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."

    Since it is my understanding that these law are only for the UK then the first aspect (moving to the host country) will still be under the current laws/treaty, but moving back to the UK would be under the new rules. Is that correct?

    ReplyDelete
    Replies
    1. I don't know why people think the deal only applies to the UK. While the overall title of the deal refers to the UK's renegotiation, and the UK has the most interest in applying the rules in the deal, there's nothing in the text to suggest that it only applies to the UK.

      Delete
    2. Ouch! We have been in Ireland for three years and planned to stay permanently (seems like we can run, but not hide from Cameron). Hopefully this will not impinge on our family life, especially after the five year residence cards expire.
      As you were saying one could argue that it affects our Freedom of Movement and could be considered the destruction of pre-existing family life.
      Also if the new this applies (as you mention) on a cross EU basis it may take years to implement.

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    3. I expect the implementation laws, when they come, will have transitional rules so no one who has already moved and established family life in another Member State will lose their status, and also can keep accruing time toward getting permanent residence. We can't be sure of that yet though.

      Delete
    4. Thankfully we have a delightful Irish baby who will also afford protection to us here. We didnt have her for protection but all protection is welcome.

      A lot of people (myself included) appreciate your help at this stressful time. Thanks a million Steve!

      Delete
    5. I'm glad I can help, Dominic, although there's a lot of uncertainty without seeing the draft laws, and my assessments are all best guesses for the moment. In the meantime, enjoy your baby, they grow up too fast!

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    6. There is no such thing as "member State". There are no States in Europe until there are Presidents of Nations. There is member nations or sub-nations. There cannot be police force with different salaries in all Europe. We must not allow it and if it does not stop it will not solve the black market of those who traffic with people moving immigrants and prostitutes all over the places where there is more police corruption. If a nation does not rise the salary of the police then such nation must disconnect from Europe. If another Europe (example: South Europe) wants to come up it must contain police force with similar salaries and in such case it's safer. It's a long painful process to make another Europe. We must make a petion against the European Parliament. Make yours or sign mine:
      https://www.change.org/p/enrico-brunetta-equalizzazione-delle-buste-paga-di-tutte-le-polizie-europee

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  7. I suggest everyone writes to their MEP and tell them how you feel, and how you may be affected.

    SS will soon stand for Spouse Suspects

    ReplyDelete
  8. Dear Steve, under the proposed changes in the directive can EU citizen who moved to another member state will still be able to bring his/her non EU family member from 3rd country like current free movement rule or it would be difficult or not possible ? . thanks
    Regards Malik

    ReplyDelete
    Replies
    1. It would be more difficult at present, since national immigration law would apply - although that depends on the content of the national immigration law of each country. This assumes that the third-country national has not already been legally resident in a Member State.

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  9. Dear Steve,under the proposed or new changes in the directive would EU citizen who moved to another EU member, will still be able to bring his/her non EU family member from 3rd country or it will not be possible under new changes. I mean eg a UK citizen move to France and start treaty rights there, will his/her non EU family be allowed to join him/her in France from lets say Nepal under free movement or national immigration law of that EU country will apply. Appologise for my grammer mistake. thanks

    ReplyDelete
    Replies
    1. Thanks for your question, Malik. Under that scenario, French immigration law would apply to the admission of the non-EU citizen family member once the new rules are in force. I suppose another transitional issue is what happens if the UK citizen moves before the new rules apply, but the family member moves after - do the new rules apply to the family member or not?

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  10. When can we expect the legislative proposal to be issued? Shortly, or closer to the date of the referendum? And where will it be published online? I'm no expert, so is the legislative procedures section of EUR-Lex the right place to look?

    ReplyDelete
    Replies
    1. Thanks for your question, Augustus. The Commission declaration says it will propose the text after a 'Remain' vote is notified (if there is one). It will be widely published online. I expect you will be able to find it there. I will be commenting on it on this blog (with a link) of course.

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  11. Up until now none of the politicians, either supporting IN or OUT has said a word about the situation of the many EU citizens residing in the UK and UK citizens residing in Europe who will not have been in the country long enough to claim permanent residency by the exit date if UK chooses to exit. Is it likely that nothing will be said about this during the campaign either and that the first time we are going to hear about this is during the EU-UK exit negotiations after the referendum?

    Also, I've seen in some articles being mentioned that if there won't be an agreement and we will end up with people being forced to leave on both sides (effectively mass deportations unheard of on this continent since the second world war), the UK and the EU would open themselves to legal action by those being forcefully removed as at the time of their arrival they expected a certain path towards long term residence and made long term plans in the country (in my case buying property, a car etc.) only to see their lives thrown into complete disarray. Is there truth in this argument? I start wondering if it would make sense to start looking at legal options, the pound is likely to drop like a rock against the euro in the upcoming uncertainty so if i'm forced to sell everything i own here in a rusk and leave I will for sure incur significant losses. I wonder what is your view on this.

    ReplyDelete
    Replies
    1. The vast bulk of people on the Leave side have said they would not want to engage in mass deportations. There would be protection under the ECHR for those who have established family and private life, although the ability to obtain that protection in the UK depends upon what happens to the Human Rights Act in the meantime. I think it makes sense to wait and see what the plans of the 'Leave' side are (if they do reveal them) before contemplating legal action.

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  12. Case C-456/12 O & B states that the Directive applies by analogy upon the return of the EU citizen and his family members. If that's the case, couldn't the UK for example use the proposed new Directive rule to exclude from the scope of free movement those family members of British citizens who were not lawfully resident in the EU before marriage?

    ReplyDelete
    Replies
    1. Yes, I think that's exactly what is being contemplated, although there are transitional issues and the relationship between the revised Directive (host Member State) and Commission guidance (return to home Member State) isn't very clear.

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  13. I'm wondering of there is an error in the text of the proposed disqualification for free movement. Is the change truly meant to be 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"
    or was it meant to be
    "who had no prior lawful residence in a Member State before marrying a Union citizen AND who marry a Union citizen only after the Union citizen has established residence in the host Member State."
    The latter takes us back in some ways to the 2006 version of the 2006 EEA Regulations, but preserves free movement within the EEA but not into the EEA. The former destroys free movement within the EEA for many, and becomes unworkable with de facto marriages, as it matters greatly whether the non-EEA spouse 'marries' before or after achieving lawful residence in the EEA.

    ReplyDelete
    Replies
    1. I had wondered that myself. An 'AND' would focus the rules much more clearly upon those who were more likely to be breaching immigration law. But since the 'OR' has been kept from the original draft, I assume that was intentional.

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  14. What is your feeling on this? Do you think the wording would be changed?

    I am thinking about "‘to exclude, from the scope of free movement rights..."

    The way I read it. Then I can not marry a woman from Kenya and go to get work in another country other than my own, and then invite her.

    It just seems to harsh and doesnt it violate human right to create family?



    ReplyDelete
    Replies
    1. You can invite her but national law will apply to her admission. So it's not impossible but the criteria might be difficult to meet - it all depends on your personal circumstances. Unfortunately the European Court of Human Rights has mostly taken a weak view on family reunion when the family first seeks to be united. Some national constitutions give a stronger right to family life in the immigration context; you have to look at the details in each country.

      Delete
  15. What does "Remain vote" mean?

    I understand it´s the remaining vote, but who?

    ReplyDelete
    Replies
    1. That simply means a vote for the UK to stay in the EU. The options on the ballot paper are 'Remain' and 'Leave'.

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  16. Thanks for this Steve. The interesting with regards to non EU family member of EU citizens is that sponsors who are themselves third country nationals will now be in a better position to bring their own non-EU families to the EU. For example, under the new proposal, a German marrying an American in the US would fall under national immigration law once they move to France for example (unless of course France would be more generous). Thus France could impose any requirements they would like for accepting the spouse like learning French. However, a non-EU citizen (from Canada for example) who also marries an American and then moves to France (under French immigration) would then be able to bring his or her spouse under EU law under better conditions than the German example before. This will be even more the case if the Canadian in question is a highly skilled worker. Am I missing something?

    ReplyDelete
    Replies
    1. Thanks for your question, DA. I have been thinking about this. I wonder if the CJEU might not rule that 'national immigration law' cannot put EU citizens bringing in non-EU family in a worse position than either (a) home State nationals bringing in non-EU family or (b) non-EU citizens bringing in non-EU family. Or it might not get to that stage, the legislation may simply provide for this outright. Where (b) applies then it would be another EU law which applies, as a minimum standard. But either way it could still be said that 'national law applies' so the agreement has been complied with.

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  17. Hi Steve, In the event of a vote to exit from the EU. Will the free movement rules as they are cease to exist, as in will the UK government stop taking applications for Article 10 residence cards?

    My understanding is the treaty allows 2 year for a permanent exit to take place. So technically the UK is still a member of the EU until then. In that time will they still have to accept applications from those doing Surinder Singh route?

    ReplyDelete
    Replies
    1. In principle EU free movement law will apply in the UK until the Brexit date. I wonder however if there might be an attempt after a Leave vote not to comply fully, in particular as there would be a concern about increased numbers of EU citizens and their family moving to the EU before the Brexit date.

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    2. Thanks for the quick reply Steve. It is something the UK government is likely to do. They like to trample on people's rights as it is. I suspect there will be challenges in court if they do resort to such an action but whether they can be made to comply is another thing since the UK would be leaving anyway and hence nothing to lose.

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  18. Hi Steve

    I wonder if the leaders of the EU nations fully considered what they were signing. By adding in draconian restrictions on non-EU family, essentially stripping many legitimate spouses of EU citizens of their freedom of movement, this goes far beyond merely preventing "abuse" of free movement. Yet, it is labelled as such. Do you think the intention of this agreement was to radically transform freedom of movement across the EU? If this was merely inserted to counter abuse (sham marriages etc), then do you think that legal certainty could be raised to challenge this, notably the doctrine of legitimate expectation and the misuse of powers test? Thanks so much.

    ReplyDelete
    Replies
    1. Perhaps it will be watered down in the European Parliament, the EU court or national practice in at least some countries so that it ends up more narrowly targeted at those who entered unlawfully and got married at the last moment to stop deportation - with no effect on the much broader group who have an undoubtedly genuine family life. I think legal certainty and legitimate expectations are very relevant arguments for people who have already moved, less so for those who haven't.

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  19. Dear steve there are many applicants who have applied join spouse c visa for ireland in recent days.
    Iresh authority is taking more then 6 months for these visa cases.
    What would will the matter of these applications after new EU rules implimentation.Are these visa application will run on previous eu treaty rights?

    ReplyDelete
    Replies
    1. That depends on the transitional rules in the final law, when it's passed.

      Delete
  20. Thank you Steve for your interesting analysing.
    It is strange that the media doesn't cover this annex and its implications, this is something which will affect all EU citizens around the world. There are millions of EU nationals living outside the EU: working, studying etc (I read that just in the US there are more than 4 million EU nationals), I presume they are not aware that it is better for them not to fall in love outside the EU.
    What if all EU states will impose high level of threshold, many EU citizens would not be able to come back to any state and their right for family life is doomed inside the continent.
    In my case, and many other who I know, I married my husband many years ago, we lived in a non-EU country and with no EU citizenship. After 5 years of marriage, I managed to issue a Romanian passport on the basis that my mother has one, so now I am holding a dual citizenship, but not my hubby; will we ever be able to move to any EU country without comply with national immigration laws? I guess no. Is it right that just British citizens will decide the policy of all other EU nationals around the world?
    Many thanks
    Anne

    ReplyDelete
    Replies
    1. Thanks for your question, Anne. If the law is adopted as planned, you would indeed have to comply with national immigration law as regards family reunion with your non-EU husband. But national immigration law doesn't usually make family reunion impossible, it all depends on whether you can meet the criteria.

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  21. Hi Steve

    If the UK votes to remain in the EU, this changes will be in force immediately?. I'm moving to London in October to study. I have italian citizenship but my wife is from Chile. We were planning to apply to a EEA family permit in September.. Do you think these new regulations will be in force by then?

    ReplyDelete
    Replies
    1. Difficult to be sure. My guess is they would be proposed in July, agreement by October would be very quick by EU standards but not impossible. UK might start tightening rules in advance though. I can't advise on individual cases but in general if your wife is already legally resident in a Member State when the new rules apply then it would be possible you would qualify under the new rules anyway.

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    2. Hello Steve, thank you very much for your analysis! I am also a Italian citizen, my wife is brazilian. Assuming the UK votes to remain, would a EEA Family Permit issued before the referendum be considered as lawful residence under new proposed rules? Is that enough, or would it be necessary at least to apply for a UK residence Card before the changes are applied? We plan on moving to the UK in late May / early June.

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    3. Thanks for your question, Gabriel. It would remain to be seen how the transitional rules would work, both at EU and national level. It would probably be better to move and make applications sooner rather than later, to be on the safe side, although it might turn out to be unnecessary.

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  22. Thank you steve for your interesting blog.
    Who will be the one to decide about the transitional rules (timeline and eligibility)? Each member state or in the EU law itself? (Since it is between two member states)
    Can the transitional rules be challenged by the CJEU?
    Thanks,
    Sam

    ReplyDelete
    Replies
    1. Thanks. The question of who decides on transitional rules will follow from whether the new EU law deals with this in the first place. If not, then national law will apply. It could be that EU law deals with some of the transitional issues, national law deals with others. Too early to know that now.

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  23. Think I tried to post on this before but didn't. Spouse rules for third country workers in UK are maybe the comparator here not spouse rules via family migration? Because spouses of workers need no mim income or language test? And both get settlement after 5,yrs. But still required to accommodate and support and obv if relationship ends are in serious trouble with no dv protection?

    ReplyDelete
    Replies
    1. I *think* the comparator is 'nationals of the home Member State in the same situation'. But that's a guess, we'll have to see if the law clarifies this. It's another question whether national law applies only to admission, or also continues to apply to the spouses once they enter. The future law will have to clarify this too.

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  24. Hi Steve

    I'm a British citizen currently living
    with my husband who is a third country national in the Netherlands. If the UK votes out would we still be able to move back to the UK via the SS route?

    Many Thanks
    Joan

    ReplyDelete
  25. A couple of questions Steve. As a non-EU citizen, I moved to the UK first, on a tier 5 visa, and then returned to my home country a few months later to get married to an EU citizen. After we got married, my wife moved to the UK to be with me, and since she has moved over.

    So under the new proposal, someone else doing the same will not be affected as they will have already 'lawful residence' in the UK, although not permanent, and
    married a Union citizen before the Union citizen has established residence in the host Member State. Would you say this is a fair interpretation?

    Secondly, this new agreement seems to target only initial entry. I wonder what the implications are for applying for settlement. i.e., if I were to apply for permanent residency, would I be subject to Host Member State rules or EU rules?

    Thanks.

    ReplyDelete
    Replies
    1. Thanks for your comment. I can't comment on individual cases. But in general terms a non-EU citizen married to an UK citizen in the UK is not covered by EU law at all in principle - unless the UK citizen has moved to another Member State with her non-EU family member and then moved back. The 'prior lawful entry' rule is only relevant where the EU citizen moves with her family member to *another* Member State. Then, while it's not certain, my interpretation is a) there would be 'mutual recognition' of any prior lawful residence in the home Member State, ie no need to meet the national law of the second Member State; and b) any authorised residence on the basis of a long-term visa or residence permit for more than three months would count. But this has to be confirmed by the new law.
      And the new rules would apply to return to a host Member State - but only in the form of the Commission's planned guidance.

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    2. Hi Steve, thanks for the quick reply. There are no UK citizens in this scenario. What I meant was, wouldn't it be possible to bypass the new restrictions if:
      1. The Non-EU person enters the UK on a temporary visa, say student visa, valid for 2 years. This by passes the first restriction.
      2. The non-EU person marries an EU person outside of the EU; and the EU person moves to the UK by exercising their treaty rights. This would bypass the second restriction.
      3. Now the non-EU person would be able to exercise freedom-of-movement and move off their initial visa because they are the spouse of an EU person?

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    3. Sorry, I misunderstood. Your scenario *ought* to be how the new rules will work, we'll have to see them to confirm this.

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  26. Dear Steve, thank you for your fascinating blog. Will the new law be exactly as in the draft? or it could be altered by the EU Parliament or the EU court, before coming into force? for example: in previous comment was mentioned the writing "or" while it makes more sense to be "and".
    Thanks,
    Sam

    ReplyDelete
    Replies
    1. Thanks. I assuming the Commission will use the wording in the renegotiation deal for its proposal, but might want to flesh it out, for example defining 'prior lawful residence' and setting out transitional periods. The proposal will have to be approved by the Council (by qualified majority) and the European Parliament (probably by simply majority). It's too early to say what exactly they might agree to. The EU court would only be involved if a national court asks it how to interpret the new EU law, or whether the new EU law is valid, after it's adopted. It's possible a Member State could sue in the EU court to say the new law isn't valid but I think that's unlikely in light of the political context of the deal.

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    2. Thank you Steve. So, do the chances of the draft being a law are much higher than changing it or rejecting it? I know it is hard to estimate, but what are usually the timeline periods of transitional rules?
      Thanks
      Sam

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    3. Hard to assess the chances of what might happen to a law that hasn't been proposed yet. I imagine there would be strong political pressure to pass it in the circumstances, but amendments to the finer details would be more likely. It's hard to guess what the transitional rules would be too. I would think at the very least someone who is already resident would be covered, it would be nice to cover those who have already applied as well but that may be a big ask.

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    4. Steve, thank you very much for your reply.
      Sam

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  27. Dear Steve, I want to thank you for sharing your analysis.

    After reading the proposal about child benefits where as from the 1 January 2020, all Member States may extend indexation to existing claims to child benefits already exported by EU workers, I was really disappointed. Do or leaders realise the implications? What will be the cost for the UK if all the children receiving exported UK child benefits would come to live and study in the UK (tax credits, child benefits, education, etc…)? Will our future leaders propose a similar indexation to other types of exportable benefits, such as pensions? Non discrimination is one of the fundaments of the European Union and changing the European Regulation No 883/2004 to comply with the proposal would therefore be a mistake.

    That said, I would like to know what will be the impact be of the proposal in document EUCO 1/16 ( http://www.consilium.europa.eu/en/meetings/european-council/2016/02/EUCO-Conclusions_pdf/ ) , to amend Regulation (EC) No 883/2004 on the answers found to specific situations as published on the FAQ child benefits webpage ( http://ec.europa.eu/social/main.jsp?catId=857&langId=en&intPageId=977 ) of the European Commission? Which institute will be responsible for defining the indexation?

    Question: I work in an EU country. My spouse lives with the children in another EU country, where he also works. Which family benefits will we receive?
    Answer:
    If the parents work in two different EU countries, Iceland, Liechtenstein, Norway or Switzerland and the children live in one of these two countries, the country where the children live is responsible for your family benefits.
    Entitlement to family benefits in the country where you work is suspended up to the amount of benefits provided by the country where your spouse works and where your children live.
    If the amount of family benefits paid in the country where your spouse works and your children live is lower than in the country where you work, the difference will be made up by a supplement paid by the country where you work.
    Question: My spouse and I work in two different EU countries. Our children reside in a third EU country. Which family benefits will we receive?
    Answer:
    In this situation, the institution of the country that provides the highest family benefit shall pay the full amount of this benefit.

    The institutions of the other country will refund half of the expenses: this refund procedure is internal to the institutions involved so you will not notice it.

    Will the option to index child benefits also apply to existing claims of already exported child benefits where both parents live in their home countries and the child lives with one of the parents? Which child benefits will be received? What if the child does not have the citizenship of that country and what if the child has double citizenship?

    Many thanks,

    Johan

    ReplyDelete
    Replies
    1. Thanks for your question Johan. I think the latter part of it can only be answered when we see the future law. As for children coming to the UK, the parents will have to weigh up the pro of the increased child benefit against the con of the higher cost of living in the UK.

      Delete
    2. Hi Steve,

      Thanks for the answer. Having child benefit indexation on my mind and viewing today’s Eurostat news release 39/2016, I assessed the proposal from a new angle using the GDP as option to index benefits.

      See here the link to the Eurostat Newsrelease 39/2016 published on the 26th February 2016 - 2014 GDP per capita in 276 EU regions. Twenty-one regions below half of the EU average…
      http://ec.europa.eu/eurostat/documents/2995521/7160511/3-19022016-AP-EN.pdf/c2449cc6-a169-4b7a-9a3c-10916e4707cd

      As written in today’s Eurostat Newsrelease 39/2016:

      In 2014, regional GDP per capita, expressed in terms of purchasing power standards, ranged from 30% of the European Union (EU) average in the Bulgarian region of Severozapaden, to 539% of the average in Inner London - West in the United Kingdom.

      The Eurostat document also shows that the regional GDP per capita range inside a Member State can be larger then between Member States. The UK is the best example. The 2014 regional GDP per capita numbers for the UK, ranged from 69% of the European Union (EU) average in region of West Wales & The Valleys, to 539% of the average in Inner London - West.

      Based on the numbers of 2014, I created the following example to clarify the impact:

      Consider two EU workers working in Inner London-west, an English EU citizen with a child living in Cornwall (GDP 75%) and a Lithuanian EU citizen with a child living in the capital of Lithuania (GDP = 75%). The English EU parent would receive the reference child benefit amount a week which is £20.70, while the Lithuanian parent would receive £15.53 (75% of £20.70).

      Conclusion: while the cost of living (the regional GDP) in the region of the two children in the example is the same, the two parents working in the same city receive different child benefits.

      Using indexation in this way is clearly discrimination against EU workers based on nationality.

      To prevent discrimination the same index (the regional GDP) need to be applied to all EU workers in the UK. As a result, the child benefit of the Engish UK citizen with his child living in Cornwall will be reduce to £15.53 (= GDP Cornwall x £20.70).
      Should the child live in Inner London - West, the parent would receive £111.57 (GDP Inner London - West x £20.70), that is about 7 times more compared to a child living in Cornwall.

      Carefully choosing the parameter for indexing the child benefits is of highest importance to prevent discrimination against EU workers.

      What is your view on this issue?

      Many thanks,

      Johan

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    3. Thanks for your comment, Johan. I think the intention is to compare average costs of living between countries, not regions. Technically in the UK the child benefit is paid to the parent looking after the child, so the government might argue that the comparison is not between two workers in the same British city, but the parent carer in an average British city and the parent carer in an average Polish city. They are not comparable because the cost of looking after the child (ie the purpose of the benefit) in the average British city is higher than in the average Polish city. I take the point that there are differences in regional costs within the same country but then the amount of UK child benefit is the same nationwide; and EU law doesn't impinge upon Member States' competence to define the basic elements of their social security systems.

      Delete
  28. Hi, if Brexit, someone who called the Immigration Line was told that EU citizens not married to a UK citizen would have to apply for a permanent residency card or face expulsion. This involves filling in an 85 pages long form, which then must be sent to the home office with at least 5 years of continuous paperwork: all utility bills, all council tax paperwork, all payslips, all P60s, all employment contracts, all bank statements, all mortgage or rent statements, your passport etc...
    Is this really so? This is making me feel very scared... I probably have most of this paperwork but the thought of this process, which does not guarantee a positive outcome at all, is terrifying.

    ReplyDelete
    Replies
    1. My understanding is that the UK rules on filling in all these forms for applying for permanent residency are not binding. But there's a lot of detail on this on Colin Yeo's 'Free Movement' blog. I think it's unlikely that the UK will end up expelling all EU citizens without permanent residence because hopefully there will be a deal to protect the rights of everyone already in the UK and vice versa the EU.

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    2. Thank you for this information. Many of us are plain scared of what may or may not happen...

      Delete
  29. As a British citizen living in Japan with my Japanese wife and two children (both with dual British and Japanese citizenship) a future move to the UK appears virtually impossible under the new (i.e. post 2012) UK immigration rules for non-EU spouses. Under David Cameron's renegotiation of the UK's EU membership would a family like mine also (assuming a vote on June 23 to stay in the EU) now lose it's Freedom of Movement rights should we want to move to another EU country, such as France or Spain, in the future? Would we have to meet say French national immigration law? And what would that be for a category such as ours?

    ReplyDelete
    Replies
    1. Yes, your non-EU spouse would probably have to comply with French immigration law. You would have to look into the details of what that would mean.

      Delete
    2. Thank you very much for your reply. With the UK and now most likely the EU becoming harder to move to, I personally just hope the Japanese immigration authorities continue to be reasonable to non-Japanese spouses of Japanese! It seems the EU referendum -whatever the result - is going to have implications for a lot of people.

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  30. This all would make sense if it said "unlawful residence" instead of "no prior lawful residence". And does "only after" in the next part try to say "immediately after"?
    If this is indeed not just a bad example of a practical joke, it will effectively leave many Union citizens without freedom of movement. It also looks like a ban on marriages that were not made in the home country of Union citizens. It's like someone just came up with a marital apartheid law. How could such a discrimination be possibly legal?

    ReplyDelete
    Replies
    1. I agree it would be better to target the law on people whose residence was unlawful. Of course it's the family as a whole whose free movement is restricted, not the EU citizen's individually. It's not a ban on marriages, but on the immigration consequences of them. And the current rule amounts to discrimination between home State citizens who marry non-EU nationals and EU nationals who marry non-EU nationals - if the home State places highly restrictive rules on the former category. It's still possible for the non-EU spouse to be covered by the rules, but he or she has to be admitted under the national law of a Member State first.

      The underlying problem is that human rights law does not give enough protection to admission of family members in the first place. If it did so then most people would have no problem living in their home country with their family - which is exactly the outcome that human rights law ought to protect.

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    2. The current situation gives spouses something like an automatic right to live together. Even though there is a certain amount of discrimination, it is still possible to have a life and a future. If this proposal gets through, it can create situations where families get separated indefinitely, or even pushed into poverty. All it takes is that the spouse's country has equally restrictive laws, and there is no future. I can imagine that in some cases even a divorce could get difficult. Yes, in theory the EU citizen's freedom of movement is not touched. In practice, however, it's a totally different picture. What if, for instance, your spouse's visa for holidays in Italy is refused or impossible to obtain based on national laws? Would you go alone? Would that still be the same? It does have a real impact on the EU citizen as an individual.
      It's bad enough that certain Member States force their citizens to accept separation if they want to move home but this a whole new level.
      For the past ten years, I have personally lived with varying degree of discrimitation regarding my own marriage. EU legislation seemed like a chance for us to get a real life. We'd picked a nice place with lots of opportunities for us. We have some money that we can invest and more investors who trust us are waiting for us to make the move. So far, we haven't shelved this plan but with this situation we'll most likely speed things up a bit if there is any benefit in it or give it up entirely and look elsewhere. In any case, this proposal has already complicated things for us. We will put our investment plans on hold, see if lawyers can offer some answers.

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    3. Thanks again Steve for all the advice. I agree in full with life-on-mars. The conditions seem completely arbitrary. In particular, the "or" vs "and" and "unlawful residence" vs "no prior lawful residence". I'm one of those that would fall foul of the rules - my wife is an EU citizen (by descent), I'm non-EU, we married outside the EU in our home country and then moved to the UK together after marriage. How can that possibly be misconstrued as "abuse"? This screams of one of those late night deals that hasn't been thought through, kind of like the EU/Turkey migrant deal of yesterday. Enjoyed seeing you on Al Jazeera by the way. Really great interview!

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    4. Thanks! Let's hope that the 'or' becomes 'and' or 'prior lawful residence' becomes 'unlawful residence' - that will focus the text much more clearly on people likely to be abusing the rules and exempt many of those who clearly aren't.

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  31. Dear steve,

    what will be date of Brexit, after LEAVE vote a letter by david cameroon to EU council or date after two year of period?
    after leaving and during 2 year of period will free movement of person continue?

    ReplyDelete
    Replies
    1. Thanks for your question. The Treaty refers to a two-year period after official notification of withdrawal. This can be shortened or lengthened by unanimous consent so is not definite. During that time the UK will be an EU Member State and free movement of persons law will still apply.

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  32. Hi Steve
    What could be the consequences (of stay or leave) for permitted family members (brother or sister) of UK citizens applying for residence card in Ireland now (March) and then going back to the UK in 6 to 7 months time using surrinder singh route if they get a residence card in Ireland. Thanks in advance

    ReplyDelete
    Replies
    1. There's nothing in the deal which mentions the position of 'extended' family members (as I would call it) in Article 3.2 of the citizens' Directive. I think this is what you mean? In principle therefore nothing would change but it's hard to be sure of the timing and details at this point. The UK might change its policies and law already after the Commission guidance on the Surinder Singh route, which I would guess would come in July if there is a 'Remain' vote.

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  33. Thanks for your expert opinion steve.
    Does this mean extended family members situation would remain as it is. Could you please shed a bit more light on (The UK might change its policies and law already after the Commission guidance on the Surinder Singh route). As far as i understand only change in surinder singh route is for those who are getting married (in order to stop sham marriages).
    And in case if there is a stay vote other policies and laws would remain unchanged (surinder singh route) apart from those suggested amendments.
    Lastly in case of a stay vote would free movement under treaty rights still apply.
    Thanks

    ReplyDelete
    Replies
    1. Yes, it looks as though the changes will only affect spouses, although that may have indirect implications for children too. There is no reference to extended family and there seems no reason in principle while the rules will change for them, but who knows what the government might decide to do. The changes to the rules on spouses will not just affect people doing the Surinder Singh route but also those who do not have an immediate intention of coming back to the UK. Yes, the Treaty will still apply although the Commission guidance will attempt to impact how it is interpreted in practice.

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  34. Hi Steve,

    You mention that the emergency brake is vulnerable to challenge in the ECJ. Is it not the case that the brake is directly discriminatory because it treats national workers differently to EU workers? If so, surely the court will apply a restrictive interpretation of the treaty derogations in article 45(3) and find it unjustified. You mention the case of Bressol but Bressol concerned indirect discrimination.

    Thanks for clearing this up.

    ReplyDelete
    Replies
    1. It's not clear yet if the rules will be allegedly directly or indirectly discriminatory, and of course we can't be certain in advance what the Court would rule.

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  35. Hello Steve, do laws regarding permanent residence cards (after 5 years) and citizenships are national laws or as part of an EU laws? Does the non-discrimination rule is also apply for those laws? For example, does a non-EU family member of an EU-national as the same rights of getting a citizenship or permanent residence card as a non-EU family member of a British national?
    Thanks,
    Anne

    ReplyDelete
    Replies
    1. Good question. Citizenship is up to national law. There are both EU rules and national rules on permanent residence. I may write a separate blog post on EU permanent residence as a number of people have apprehensions on this re Brexit. A non-EU family member of an EU citizen who has moved within the EU can also get permanent residence under EU free movement law OR long-term residence under EU immigration law. I don't know what approach Member States take to citizenship or national permanent residence of this group of people. That's also up to each national law.

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    2. Thanks Steve, always a pleasure to read you analysis.
      Currently, it is 5 years for permanent residence card for the spouse of an EU-national, could it be changed according to the new draft or it refers just for new coming immigrants issuing family permits?
      Many thanks,
      Anne

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    3. The new rules will change the criteria for falling within the scope of free movement law in the first place. But if someone *is* within the scope of that law, there is no evidence of an intention to amend the rules on getting EU permanent residence.

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  36. Hello Steve,

    Thank you for your excellent analysis, but having also gone through the comments section, I still have an outstanding question.

    Would this deal impact on the status of non-EU spouses married to French citizens currently living in the UK? As far as I can understand, although we have lived for some time here my wife would now be subject to UK immigration laws and lose her freedom to reside in the UK.

    I would appreciate any help which you could offer,

    Xavier

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    Replies
    1. Thanks for your question. We will have to wait for the text but it would be surprising if this were retroactive and affected the position of those who are legally resident on the basis of current rules.

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    2. Hello Steve,
      Can retroactive or transnational periods can be challenged by court, so it will be imposed just for newcomers? if so, which court EU or state?
      Thanks,
      Sam

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    3. Usually retroactive application of the law is ruled out by national or EU courts but there are certain exceptions. It's harder to say any more in detail until we have an actual proposal.

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  37. Thank you for your reply Steve. I hope this is the case

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  38. Dear Steve!

    Could you please clarify this for me...
    My fiance, who is an EU citizen, has been residing and working in the UK for about 6 years now, we met in the UK and have been together for a year or so now, and we're planning on getting married in a non-eu country before the referendum.
    Will this affect us? I'm very anxious about this and have no one to talk to about this issue...

    Many many thanks in advance

    ReplyDelete
    Replies
    1. Thanks for your question. I don't know your nationality and I can't give advice in individual cases. But if an EU citizen has been living in the UK for six years he should be eligible to get permanent residence under UK and EU law. At least the UK status is unlikely to be removed in the event of Brexit.

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  39. Hi steve peers I am Eu national living in uk from last 6 months and want to bring my family from a non Eu country .so tell me plz if any new law affect me or not thanks

    ReplyDelete
    Replies
    1. I can't advise on individual cases. The law will not change until new EU legislation is adopted, and we can't be certain when that would be yet. A new law will not be proposed until after the June 23 referendum.

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  40. Maybe it's just me but I'm really struggling to get my head round this.

    "..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."


    So, the third country national must have EU residency and marry an EU citizen who doesn't yet have residency? How might that happen? Wouldn't this amendment basically exclude pretty much every third country national?

    ReplyDelete
    Replies
    1. No, the first category would apply to a third country national who was already legally resident (as a student, or as a worker) who then married an EU citizen in that Member State. Or the EU citizen could apply for admission of the family member under national law on family reunion. I am assuming the second category of exclusion also applies only to those with no prior lawful residence, otherwise it would be irrational and legally dubious to exclude lawfully resident people from the scope of EU free movement law.

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    2. "No, the first category would apply to a third country national who was already legally resident..."

      Legally resident? Are you sure?

      Sorry for doubting you. It probably is just me who can't grasp it. Thanks for your reply though. Much appreciated.

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    3. What I mean is, the first category would still allow third country nationals who were legally resident before they married an EU citizen to obtain free movement rights.

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    4. Thanks. I think I've got it.

      Either way, never mind restricting the choice of WHERE to get married, this will surely also seriously narrow the freedom to choose WHEN to get married.

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  41. Dear Steve Peers
    You mention above that you may write a page about EU nationals living here in the UK. Please do... the 5 year residency card comes with a lot of conditionality and paperwork, with no guarantee of a positive outcome. Some legal clarification at least might put our minds at rest, especially since it seems some people have been given misleading info from the Home Office who seem to be speculating on what might happen when nothing's happened or been decided yet... Also I wonder what would happen in the case of someone (I know quite a few) who have been drawing benefits: will this play against them? (some have been working and drawing benefits of different kinds: housing benefits, DLA...).
    Many thanks

    ReplyDelete
    Replies
    1. Dear Anne-Laure, fortunately Colin Yeo has written a guide for EU citizens in the UK who seek permanent residence here: https://www.freemovement.org.uk/how-to-make-a-permanent-residence-application/

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    2. Interesting and useful, many thanks indeed. I will share this around. Many thanks.

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  42. Hi Steve. Firstly, thank you for your blog! Very useful! I am a UK citizen moving to Norway in June (a trip planned long before the referendum was announced) with my non EEA national husband. (We are currently residing outside of the EU). Do you know if the potential rules limiting free movement of non EEA national family members would come into immediate effect on the 23rd of June? If so, would applications for residency submitted prior to the 23rd of June be considered under the 'old' rules? Many thanks for any clarification on this! Emily

    ReplyDelete
    Replies
    1. Thanks for your question, Emily. It would take a few months at the very earliest to adopt those rules after 23 June. One would hope that applications submitted before the new law comes into effect would still be accepted under the old rules, but we can't be sure until we see the law.

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    2. Many thanks for your reply Steve!

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  43. Criminals must love the idea of having a new territory called Europe or India or Africa with the "free trade" option. It must be very enlightening to change the residence and suddenly jump into a territory where the police salary is low so that more business can be done. Thanks to the fox working in Bruxelles there is a lot more business to do. Thanks to those in Bruxelles for not doing a treaty to have equal salary for the European police force. It's the New World Disorder coming true.

    ReplyDelete
    Replies
    1. You do realise that crime in general, and terrorism in particular, also happens outside the EU? And that the UK still checks its borders and can refuse entry to non-EU citizens? And that the UK does not historically have any problem with terrorism by (non-Irish) EU citizens?

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    2. It's not the level of Police pay that drives corruption but the morality and greed of na small section of Police officers in any country.

      No matter how well-paid the Police are, the bad ones will always want more. Policing the Police is an important part of making sure that they are free from corruption, as is vetting and regular checks.

      It's unrealistic to expect a small-town Greek Police officer to earn the same as a London, UK Police officer.

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  44. Hi Steve, Thanks for posting about this issue! Very useful and informative.

    My husband is German and I am from Thailand. We work and live in Singapore for almost 10 years now. We have a plan to move to the UK this year around summer. He is German but he was raised in the UK and he prefers to live in the UK as English is his first language. with this free movement issue, it is very concerning as it would affect us. We are planning to wait for the result in June and then decide from there. My question is do you think it would be impossible for him to bring non EU spouse to the UK now based on new rules? I understand that David Cameron wants to tackle Sham marriages issue, but it would also affect couples like us who is genuine. I have been reading about "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". Has it been approved by the EU commission? or they haven´t reached the final deal yet?

    ReplyDelete
    Replies
    1. Thanks for your comment. It has not yet been approved by the EU - the proposals would only be made after the referendum, if there is a 'Remain' vote. They would then take a few months to agree at the very soonest.

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  45. Hi Steve, a though occurred to me. The UK's proposal would also appear to discriminate based on age, because older people would have had more opportunity to clock up legal residency in a member state in previous years of their lives. So, for example a Brazilian who studied in the UK in the 90's would tick a box that a 18 year old Brazilian, both married to Portuguese citizens, would not. In other words, young non-EU spouses or EU citizens may be deprived of such rights on the basis of age. Your thoughts? Thanks, Justin

    ReplyDelete
    Replies
    1. EU law does ban discrimination on grounds of age but with fairly broad public interest justifications. I suppose the argument could be run but I wouldn't count on it succeeding.

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  46. Hi Steve,

    Thank you for the detailed analysis regarding this proposal.

    I had a quick question: What are your thoughts on a non-EU citizen who was already living (lawful resident) in the UK, who then married an EU citizen whilst also living in the UK? For an extra curveball, they, although married, never applied for Article 10 residence cards in the UK.

    If a 'Remain' vote is cast, and the proposal kicks up a gear, the non-EU spouse would presumably be exempt from the 'Prior lawful residence' exclusion, but would they satisfy the 'OR who marry a Union citizen only after the Union citizen has established residence in the host Member State' exclusion as well?

    Thanks for your time and consideration.

    ReplyDelete
    Replies
    1. That depends on whether the final legislation indeed says 'or'. If it does then both categories of person would indeed be excluded. This seems highly disproportionate if the UK allows the non-EU citizen to make an in-country application to switch status. In that scenario the non-EU citizen has complied with national immigration law twice over. Or is there a requirement of an out-of-country application? That may be what the word 'or' is aiming at, although the exclusion of people who have switched status lawfully under national law is far too broad.

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    2. Hi Steve,

      Thank you kindly for your quick response.

      My apologies, I'm just slightly confused.

      Are you suggesting in your response, that if 'or' remains in the final proposal that the non-EU citizen in the above scenario would not be affected by the new proposal as they satisfied at least one of the two categories?

      I guess it's made more tricky, as the above example satisfies the 1st category, but the 2nd category gets a bit dubious. Wouldn't that impede on a couple's right to marry when the want, and not merely predicating marriage based on immigration law?

      Thank you again for taking the time to reply.

      Delete
    3. No, I am saying that the non-EU citizen in that scenario would still be in one of the two alternative categories of people to be excluded from free movement law. Getting married is usually a distinct legal issue from immigration law - it's possible that a perfectly valid marriage could be celebrated in a third country and recognised by UK law as a marriage for the purposes of civil law, but not sufficient for the purposes of admission under immigration law.

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  47. Ok, I understand.

    I suppose that I approached the 'or' to be defined as one or the other, that is to say that if they satisfied either Category A (prior lawful residence) or Category B (marriage in UK), then the exclusion would not apply.

    It seems a little harsh, as this could have a profound impact on a great deal of families, especially if the marriage was not one of convenience, but legitimate.

    And, do you have thoughts on if these new laws would only affect those coming into the UK after the 23.6 referendum, or would they be initiated retroactively, or to those that have an Article 10 residence card applications in the pipeline with the home office?

    ReplyDelete
    Replies
    1. But it's drafted to say that either category A or category B are excluded from free movement. I agree it is harsh because it hugely overshoots the objective of targeting marriages which are likely not to be genuine. On the timing issue I assume that the law will have transitional rules - too early to say what they might be.

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    2. I see. I suppose my initial interpretation was one of optimism, as it would be a bit more flexible, however, this seems to not be the case.

      Because, as you say, it 'overshoots the objective of targeting marriages which are likely not to be genuine,' which I believe to be the intended target, is there perhaps a potential legal issue in the fact that those with genuine marriages could be affected wrongly? Or that the language become watered down, so the law targets the disingenuous marriages as opposed to the genuine ones.

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    3. The European Parliament and Council could agree on a slight change of wording which more clearly targets people without genuine marriages. Otherwise someone might challenge the rules on the grounds that they are an infringement of family life.

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  48. If the UK decides to stay, after how much time will the new rules for immigration come into effect?

    ReplyDelete
    Replies
    1. That depends on how quickly the new legislation is proposed and negotiated, and the date set in the new legislation to take effect. Also, in part the new rules will consist of Commission guidance, which might accompany changes in UK law or practice.

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    2. Thanks for replying. Generally how much time do you think it is going to take?

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    3. My guess would be a proposal in July, agreed by December with a short period for implementation and transition. But that is a wild guess.

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    4. The new UK measures (if there are any) reflecting the Commission guidance would come in July or September, I would expect.

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  49. A recent ConservativesIN pamphlet indicates that a vote to Remain will result in a "prevention of non-EU families being brought to Britain." This is a direct quote from the camp. I find this a bit egregious, especially for promising an solid outcome on a proposal that hasn't made it through into law yet. Any thoughts why they can promote this type of rhetoric in official pamphlets?

    Also, does this non-EU spouse proposal include unmarried partners? At the moment, non-EU unmarried partners to EU citizens are able to access the same rights as an EU citizen given their relationship is genuine and subsisting. Couldn't partners just circumvent the new proposal (should it one into law) by remaining unmarried partners? And what of unmarried partners that established a subsisting relationship well before they moved to the UK, from outside of the EEA, and then married whilst they were living in the UK? Wouldn't that be grounds for exemption from the Part B of the new proposal regarding marriage after an EU citizen established themselves in a member state, as they moved together initially?

    ReplyDelete
  50. That's certainly an overstatement of what the renegotiation deal will do - as some non-EU family members of EU citizens would certainly still qualify to come here. More broadly though this raises the underlying question of the legal status of the deal - legally binding but subject to further implementing measures. But when the Leave side is claiming that the UK sends '£350 million a week' to the EU - a claim which the statistics authority says is 'potentially misleading' and which contradicts UKIP's audited election manifesto - I think criticism of the Remain side is one-sided.
    On unmarried partners no one has thought about that detail when doing the negotiation deal. I assume that parallel changes will be made to their position, but we will have to wait and see.

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  51. Dear Steve,

    Thank you for your interesting blog.
    Can you please explain what are national immigration rules means?
    There are many options to immigrate to the UK: Tier 2 (for skilled workers), family Reunion for UK nationals family members, Tier 1 etc.
    What will be the category for EU nationals who whish to bring their non-eu family members?

    Regards,

    Anne

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  52. Hi Steve The people of Britain voted to leave.Is David Camerons reform deal with the EU out the window? or will they go ahead with changes?

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    Replies
    1. The deal was dependent on a Remain vote, and was immediately cancelled.

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