European Council Conclusions summarise the deal offered to the UK following negotiations in Brussels on 18 and 19 February 2016. Part of this deal related to immigration issues is tucked away in Annex 7, a short document based on the Draft Declaration of the European Commission on issues related to the abuse of the right of free movement of persons.
The proposal is drafted primarily along the lines of fighting abuse of the system by those who receive immigration advantage through marriage with an EU national. In effect, the proposal offers exclusion of third country nationals from the benefits of the EU Regulations.
In the wording of the declaration:
“The Commission intends to adopt a proposal to complement Directive 2004/38 on free movement of Union citizens in order to exclude, from the scope of free movement rights, third country nationals who had no prior lawful residence in a Member State before marrying a Union citizen or who marry a Union citizen only after the Union citizen has established residence in the host Member State. Accordingly, in such cases, the host Member State’s immigration law will apply to the third country national.”
I will try and explain what this means in practical terms. At present the spouse of an EU national enjoys the right of residence in the UK in line with their EU national spouse independently of the third country national’s past immigration history. For example, an Australian citizen who remained in the UK beyond the validity of his visa at some point after the visa expires marries a French citizen who works in the UK. Under today’s law, the Australian would become a lawful resident from the moment of this marriage (besides that getting married in the UK would be virtually impossible in these circumstances). The new law will require the Australian to leave the UK and apply for entry clearance under domestic immigration rules.
The second limb of the proposal can be illustrated in the following scenario: imagine that the above Australian did not overstay his visa but married the French citizen in the UK while being here on a Youth Mobility Visa or any other type of visa issued for more than six months. In this case, the Australian will not be required to leave the country and apply for entry clearance, but would merely be required to make an application for leave to remain under the immigration rules, meet financial requirements, and presumably pay a hefty fee – the same way as he would if he had married a British citizen.
An example scenario where the amendment would not apply: the Australian would be living in France and marrying a French citizen there and then both of them would decide to come to the UK from France. On the face of it, it seems that this couple is not going to be affected by the new deal for Britain.
Another limb of the proposal on fighting abuse of rights is related to British citizens who are returning to the UK with a third country national spouse after residing in another European country.
In the wording of the Commission:
“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.”
In practical terms: Surinder Singh route (the term used in legal jargon for this type of scenario) has always been treated with open hostility by the immigration authorities and the introduction of “transfer of the centre of life test” in 2014 was and remains of questionable legality under EU law, which has not precluded or even limited application of this test in the UK. It is not clear if the new deal bargains on legitimisation of the “transfer of centre of life” or has additional restrictions in conception. Details of the proposal are to be developed subject to the UK’s decision on Brexit.