Through perhaps the most well publicised presidential letter of recent times, the President of the European Council yesterday set out his proposal for a new settlement for the UK to remain within the European Union.
The letter was accompanied with arguably less well publicised draft statements and declarations containing more details, which include a declaration relating to the abuse of the right of free movement within the Member States of the European Economic Area (EEA). We discuss here the impact on EEA nationals and their dependants if the measures are adopted and agreed by Member States later this month, as David Cameron would reportedly like.
The European Commission intends to complement Directive 2004/38 on free movement of Union citizens in order to exclude from free movement rights, non EEA 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 county national.”
This will allow the UK government to reject EEA Residence Card applications from those who are unlawfully in the UK or who marry an EEA national exercising EEA Treaty Rights here. The proposal is probably not surprising given the UK government’s aim of cutting down on the excesses and abuses of EEA migration. However, it is unlikely of its own to have any impact on reducing the overall number of EEA migrants travelling to the UK for work.
Perhaps more significantly, it will enable the UK Government to apply the more onerous UK immigration rules for partners to non-EEA nationals who marry an EEA national only after that person has already established themselves in the UK as a worker, a self-employed person, a student or as economically self-sufficient. The UK immigration rules for spouses and partners require applicants to satisfy complicated financial and accommodation evidential requirements, plus the need to demonstrate basic competence in the English language, none of which are required for EEA nationals and their partners at present. Under the UK immigration rules, spouses and partners must also pay both a significantly higher immigration application fee and an NHS fee.
To every dark cloud there is a silver lining. One positive outcome of this change in precedence of UK immigration law over existing European law would be that it will allow non-EEA nationals to have their cases considered through the Home Office premium same-day service, instead of having to wait up to six months for a decision as at present, the normal processing time for an EEA Residence Card application.
The statement also appears to imply that, so long as a couple’s marriage took place prior to the EEA national’s establishment in the UK, European law will continue to apply and the non-EEA national can apply for an EEA Residence Card as “normal”.
“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”
This appears to be a reinforcement of the Home Office’s current position on how it currently deals with applications from non-EEA national family members looking to utilise the Surinder Singh route, i.e. by British citizens travelling with their partners to another Member State to work for a period of time (usually 6 months) before returning to the UK using EEA rights of free movement rather than the complex UK immigration rules for spouses and partners. Since introducing the complex financial requirements in July 2012, the UK has seen a sharp increase in the number of Surinder Singh applications. British nationals unable to meet the financial requirement of the immigration rules have moved to other Member States to be with their partners. On their return to the UK, they do not then have to meet the same strict financial requirement. The UK has viewed this as an attempt to circumvent UK immigration control and has gone to various lengths to try to limit the Surinder Singh route as an option for British citizens and their partners. To this end, the UK government has already amended the EEA Regulations 2006 to include a ‘centre of life’ test, derived from legal precedent rather than an EEA Directive. Clearly, the Prime Minister considers that the current position does not sufficiently restrict British nationals use of Surinder Singh. This proposal would give the full force of EEA law to the UK government to apply a ‘genuineness’ test through an amended Directive.
“Marriage of convenience… [will] cover 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”
This is either a restatement of the existing laws or the UK governments attempt to extend the definition of a ‘marriage of convenience’ by giving them scope to allege that a marriage has been entered into to obtain an EEA Family Permit or EEA Residence Card. Either way we strongly recommend applicants evidence the full history of their relationship as wholly as possible to demonstrate a genuine bond of affection. Our experience of the “Primary Purpose Rule” in the 1990s showed decision makers’ willingness to infer that the main reason for entering into a marriage was to secure a visa, rather than this simply being a corollary outcome.
It may also potentially allow the Home Office to revoke a non-EEA national’s EEA Residence Card where the marriage has broken down and the couple are no longer living together. The law at present allows the non-EEA spouse to remain in the UK so long as their spouse is in exercise of Treaty rights up to the issue of a Decree Absolute. How this will sit with the concept of ‘Retained Rights of Residence’ will also remain to be seen.
"In order to take account of a pull factor arising from a Member State's in-work benefits regime [provision will be made] for an alert and safeguard mechanism that responds to situations of inflow of workers from other Member States of an exceptional magnitude over an extended period of time."
This is Prime Minister Cameron's much heralded "brake" on European migration. Where the UK notifies the European Commission that an exceptional situation exists on "a scale that affects essential aspects" of the social security system, with the Commission's approval, the UK will be permitted to restrict access to in-work welfare benefits "to the extent necessary". Such restrictions would be for up to 4 years.
“Member States will be allowed to take into account past conduct of an individual in determining whether a Union citizen 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. The Commission will clarify what are ‘serious grounds of public policy or public security’ and ‘imperative grounds of public security.”
This is clearly aimed at individuals whom the UK government deem to be a threat to the state, but who have no previous criminal convictions. It could include those with outspoken views or with criminal connections. One would assume the UK government will seek to harmonise EEA laws with the pre-existing, and tougher, UK laws to prevent EEA nationals from entering or seeking to enter the UK where they are considered undesirable.
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