Cutting off free movement air of EU citizens living abroad

There are many EU citizens who live outside the EU.   A Migration Policy Institute article says four million EU citizens were living just in the USA in 2014.  Millions more live in Canada, Singapore, Russia, Hong Kong, China, Australia, Brazil, Kazakhstan, India…

Distribution of Europeans living in the US

The European Commission and the British government are presently proposing to dramatically reduce the fee movement rights of those EU citizens who are married to non-EU citizens and who live outside the EU.

These EU citizens work, buy houses, get married (usually to non-Europeans, since most people around them are not European), have children: just normal daily life.   Often they stay forever in their new home, and sometimes they decide to move back to Europe for any of a thousand good reasons.

Presently, European Free Movement law allows them to trivially move to any European country (apart from their natural home country of European citizenship).   Their move, and that of their family, is hassle free, and they can easily do it even for short periods.

Some examples I personally know of people moving/working in Europe on the basis of EU free movement law:

• Swiss computer engineer with Vietnamese wife (married 6 years) and two children  recently moved to work in the UK from Singapore
• French musician and US husband (married 21 years) live in Seattle and both perform together in UK folk music venues (mostly music clubs and pubs)
• British citizen professor lives in Canada with Canadian wife (married 11 years) and child do a sabbatical year in Paris

These examples can happen because the non-EU spouses is not required to satisfy restrictive local member state immigration laws.  Since the spouse can come along easily, these EU citizens have been able to use their free movement rights.

What are the Commission and British government proposing?

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

This is proposed in a Commission document addressing “abuse of the right of free movement of persons“, but the exclusion is not limited to cases where is abuse.   It would apply to each of the example families mentioned above, because none of the spouses  had ever resided in Europe before marrying their (EU-citizen) spouses.

As Steve Peers points out, the wording says that “lawful residence” must have happened before the start of the marriage.  If it was not there when the couple married, there is nothing which can change the situation.  Not 20 years of marriage, and not a subsequent period of lawful residence in Europe.

Is this really an attempt to tackle abuse?  It seems to be simply a ploy to reduce the number of Europeans who can take advantage of their treaty right of free movement.

Why is this important?

It is generally hard to convince European citizens to take advantage of their free movement rights.  They tend to prefer not to  move away from their home country, and language is an issue.

Europeans who already live outside Europe have demonstrated that they are willing to live in a different country (and even continent!), to adapt, to work.   They tend to be better educated, and bring valuable experience back to Europe if they return.

Why is the European Commission proposing to dramatically restrict the right of free movement of these Europeans?   Why would member states agree to this being imposed on their citizens?

What to do?

Pause for a few minutes of amazement that the UK and the European Commission are even proposing this.

Reach out to the European Commission and tell them that this will have a disproportionate impact.

Most important is to reach out NOW to the embassies and foreign ministries of  your European member state.  If you are German, call the Auswärtigen Amts and your local embassy.  Same if you are French, or Polish, or Hungarian.   Let them know that you care, and want to maintain your right of free movement even if you have married a non-European.

Reach out to journalists you know and let them know about these proposed changes.

And reach out to your friends and family who might have an interest in this.  Know a European citizen who lives outside the EU?   This will affect them or their children!

Decisions are being made this week, and there will be little chance to influence the outcome after Thursday Feb 18..

British citizens, unaware of their Free Movement rights

The Guardian has a touching story of two British citizens, Rawand Aziz and Saman Sharif, each presently living in a French refugee camp.  They had repeatedly asked permission to bring their families to the UK, but the applications have been refused by the Home Office.  So when their wives and children came to France as refugees, the British citizens joined them and are now reunited in “Europe’s worst refugee camp” in Dunkirk France, living in a cold tent.

Both men are British citizens resident in France.  Interestingly the article makes no mention of EU free movement law, and its relevance to this case:

1. For the first three months of residence, there are no preconditions on the residence of the British citizen and their non-EU citizen family members (in this case a wife and children).  The adults can immediately work without permission, and the children can go to school.
2. The British citizen and the non-EU wife can work at any job, though the British citizen should keep detailed pay and employment records for later use.  They do not need to earn a specific amount to remain legally in host EU member state.
3. They can move together as a family to any other EU member state (except not initially the UK), such as Ireland or Germany or the Netherlands.  They can do this to be closer to family, or for more work opportunity, or for whatever reason they have.   They do not need permission to legally move.
4. After the British citizen has worked for 3+ months in a different EU member state, they can then easily move back to the UK on the basis of EU free movement law. They would not need to have any savings, nor earn a particular income, nor have a job lined up in the UK.   They only need to be able to prove that they have been living together while the British citizen was working (“exercising treaty rights”) in “another EU member state”.   [See Move home on the basis of EU law (instead of restrictive national law) for more information about this Surinder Singh rule]

To be 100% clear, I fully understand these families are in a very difficult situation and they likely have very limited financial resources to move to a warmer safer German city which has more work.

But they need to be told and know that they presently have legal options under EU free movement law because they are a family and one of the family members is an British (EU!) citizen.

Policy Notices from the UK’s Free Movement Operational Policy Team (to April 2015)

These 2015 policy notices from the UK’s “Free Movement Operational Policy” team (formerly the “European Operational Policy Team”) were released in response to a FOI request done through the useful www.whatdotheyknow.com.  (Earlier European Policy Notices can be found here.)

Five notices issued to 10 April 2015 were released, several of which are quite interesting!

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Disclosure of interviewer’s comments (form ICV 4605) following a marriage interview (Free Movement Operational Policy Notice 01/2015) (link)

On the basis of the case Miah (interviewer’s comments: disclosure: fairness) [2014] UKUT 00515 (IAC), the Home Office now feels obliged to release notes taken during marriage interviews as part of appeal disclosure.

They quote the Asylum and Immigration Tribunal (Procedure) Rules 2005 on what they must produce on appeal:

Rule 13(1) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 provides that the following must be filed with the tribunal when a Notice of Appeal is served:
[…]
(c) any other unpublished document which is referred to in a document mentioned in (a) or relied upon by the Respondent;
[bold emphasis added by Home Office in notice]

They claim exceptional situations where “disclosure may not be appropriate”, though it is unclear why identifying information of informants would ever be included in marriage interview notes and why that could not just be redacted.

Reading this notice raises some interesting issues:

• Will they also release marriage interview notes as part of a normal Subject Access Request?
• Do similar rules exist for releasing notes about Immigration Rules marriage interviews, especially given the bolded reference to Asylum and Immigration Tribunal (Procedure) Rules 2005?

Issued: 13 January 2015

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New EEA Application Forms (Free Movement Operational Policy Notice 02/2015) (link)

The policy team have undertaken a substantive review of all in-country EEA application forms with the objective of making the forms simpler in terms of evidential requirements and more user-friendly. A review of the out of country VAF form used for EEA family permit applications, will take place during the first half of 2015.

Wow, quite a claim, given that the resulting Residence Card application is 129 pages.

Note the coming change for EEA Family Permit applications!   VAF form can only be used in North Korea and Cuba, so they must be referring to the online application for an EEA Family Permit.  Will the UK will finally address the serious compliance issues outlined in the earlier complaint to the European Commission CHAP(2012)3146 about EEA Family Permit issuance?

The new forms are categorised by the route in which the person is applying (i.e. qualified person, family member, extended family member, permanent residence and derivative rights), [instead of the document being applied for].

[…]

Caseworkers should note that applicants are still able to apply using the old forms (or no form at all) and that an application cannot be rejected or refused on this basis alone.

Issued: 29th January 2015

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New and Updated Modernised Guidance (original and revised version)
(Free Movement Operational Policy Notice 03/2015) (link)

The new modernised guidance provides up to date and detailed consideration for all decision-makers assessing rights of residence for EEA nationals and their family members. The guidance is arranged according to the route in which the person is applying (i.e. as a direct family member) as opposed to the document being issued (i.e. a residence card). This reflects recent changes made to the application forms (see EOPN 02/2015) and guides both the caseworker and customer more effectively through the consideration process. A list of the revised sections of the guidance is provided below:

• EEA and Swiss nationals: Free movement rights
• EEA nationals qualified persons
• Direct family members of EEA nationals
• Extended family members of EEA nationals
• Family members of EEA nationals who have retained the right of residence
• Derivative rights of residence  (link?)
• EEA case law and appeals
• Abuse of rights, fraud and verification of EEA rights of residence  (link?)
• Removals and revocations of EEA nationals
• Processes and procedures for EEA documentation applications

The notice provides a summary of modernized guidance, including relevant case law changes for European applications.

The revision to Notice 03/2015 simply removes the following helpful paragraph:

Page 49 sets out guidance on how time spent outside the UK should be considered when calculating the five year qualifying period towards a right of permanent residence in the UK. This guidance aligns the Home Office position more closely with that of other Government Departments, including DWP.

They kindly offer that “Masterclass sessions on the modernised guidance will be available for all decision-makers who require it over the next few weeks. If specific training is required on any section in particular, please email the Free Movement Operational Policy Team mailbox”

This notice refers to “European Casework Instructions (ECIs)” and “Immigration Directorate’s Instructions (IDIs)”.   Anyone have links to those?

A separate list of guidance mentions additional modernized Excluding EEA nationals and their families from the UK and European Economic Area (EEA) family permit guidance.

Original issued on 24 February 2015 (and Revision on 26 February 2016)

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Amendments to the Immigration (EEA) Regulations 2006  (Free Movement Operational Policy Notice 04/2015) (link)

The focus of this notice is highlighting changes to the Regulations which restrict appeal rights for EU citizens and their family members, for “Revocation of Admission”, and for “Treating EEA nationals as illegal entrants”.

The regulations have been extended to now require “Comprehensive Sickness Insurance” (CSI) for family members of EU students.   This is discussed, though there is still no evidence that Home Office has any written criteria for evaluating acceptability of purchased CSI.

Unlawful UK fees for EEA Residence Cards?

In April 2013, the Home Office started charging £55 to issue a 5 year EU/EEA Residence Card.   A few days ago, the fee rose to £84.20 (consisting of the base £65 fee and the required statutory biometrics/fingerprinting charge of £19.20).

The UK can charge for Residence Cards, Permanent Residence Cards and EU citizen registration, but Article 25(2) of Directive 2004/38/EC requires that they may not charge more than what is charged for “similar documents” issued to British citizens.

It is hard to identify any document issued to British citizens which costs more than £84.  If the Residence Card fee is higher than the similar documents, then it is an unlawful fee, which has recently been paid by more than 100,000 applicants.

Lets look more deeply, in case we have missed something.

What is a Residence Card really?

One can ask what functions or access a 5 year Residence Card gives you:

1. It is a government approved document to prove you have a right to work
2. It is a government approved document which allows you to board a flight to the UK, though it is then not required for actual entry to the UK
3. It is required by banks to open a bank account

It is worth remembering that in EU law, the family member of an EU citizen already has a right of free movement based solely on their relationship with the EU citizen who is exercising free movement rights.   An application for a Residence Card (or PR card) does not itself create any rights; the card is merely a confirmation of the already existing rights of the applicant.

European Policy Note from the British Home Office (most of 2014)

These 2014 policy notes on the UK’s European operational policy for European Free Movement were released in response to a FOI request (done through www.whatdotheyknow.com) to the Home Office.   They include notes issued until November 2014.

(Previously released Euopean Policy Notes can be found here.  These were also released in response to a FOI request).

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Verification of eligibility   (UK European Operational Policy Note 01/2014) (link)

“Replaces EOPN 02/13 and provides guidance to case workers on how to consider applications where a person fails to provide evidence to substantiate their claim or attend an interview when invited to do so“

Discussion of regulation 20B introduced in the Immigration (European Economic Area) (Amendment) (No.2) Regulations 2013, and the grounds on which HO believes it can request verification of provided evidence, and discusses appeal rights restrictions of regulation 26(5).

Issued: 1st January 2014

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Regulation 9 (Surinder Singh Cases)   (UK European Operational Policy Note 02/2014) (link)

“This notice provides guidance to case workers on how to consider applications from the non-EEA national spouse or civil partner of a British citizen who has exercised Treaty rights in another EEA member state.”

This EOPN concerns the British government’s new regulation 9(2)(c) and 9(3) that require the British citizen to have transferred the centre of their life to another EEA member state

Issued: 01 January 2014

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Jobseekers and retention of ‘worker’ status   (UK European Operational Policy Note 03/2014) (link)

“Guidance to decision makers on how to consider applications from EEA nationals who are jobseekers or who are in involuntarily unemployment following a period of employment and are seeking to retain worker status in line with regulation 6(2)”

The Immigration (European Economic Area) (Amendment) (No.2) Regulations 2013 impose new qualifying criteria to be satisfied in order to be exercising Treaty rights as a jobseeker and also incorporates the Upper Tier Tribunal judgment of Shabani (EEA – jobseekers; nursery education) [2013] UKUT 00315 (IAC) into the Regulations at regulation 6(5)(b).

Issued: 01 January 2014

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Caseworking guidance covering amendments to the Croatian regulations that come into force on 6th April 2014  (UK European Operational Policy Note 04/2014) (link)

Processing of outstanding applications, now that Croatia is an EU member state

Issued: 4th March 2014

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Caseworking guidance covering Croatian FMRS applications that are outstanding on 6th April 2014   (UK European Operational Policy Note 05/2014) (link)

Processing of outstanding FMRS applications, now that Croatia is an EU member state

Issued: 4th March 2014

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Additional scrutiny of applications  (UK European Operational Policy Note 06/2014) (link)

“In cases where there is evidence of previous attempts by the applicant to gain any leave or citizenship by deception…”

It is unclear why this EOPN was issued.  It seems to be common sense, but maybe it is not so obvious to those processing European law applications

Issued: 4 July 2014

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NHS access and the Comprehensive Sickness Insurance (CSI) requirement (Ahmad [2014] EWCA Civ 988)  (UK European Operational Policy Note 07/2014)  (link)

Discussion on whether NHS coverage qualifies as CSI for the purpose of students and self sufficient people.

This EOPN does not provide either a list of valid CSI policies, nor guidelines for evaluating policies.  That seems to still be up to the individual caseworkers.

Issued: 06 August 2014

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ECJ cases of MG and NO  (UK European Operational Policy Note 08/2014) (link)

Guidance to decision-makers on how to consider periods of imprisonment for the purposes of acquiring permanent residence and benefitting from the enhanced protection from deportation

REF ECJ judgments in NO (C378/12) (‘Onuekwere’) and MG (C400/12)

Includes sections on Assessing whether a person should benefit from imperative threshold and Ten years residence completed before imprisonment

Issued: 18th September 2014

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UK born children of Turkish ECAA applicants  (UK European Operational Policy Note 09/2014) (link)

“Guidance when dealing with applications for settlement under the Turkish ECAA provisions which include a UK born child

4. Legal advice has suggested that simply refusing such children without any indication of an alternative route to settlement may give rise to legal challenge. Granting immediate settlement to UK born children who have never held leave is not possible under the ECAA or desirable from a policy perspective.”

Issued: 2 October 2014

On which side they fought???

Has twitching in random directions taken the place of political leadership?  Why do politicians say such silly things when speaking about immigration and free movement?  Are they less concerned about immigration in general, and maybe more concerned about immigration by “the wrong sort of immigrants“?

Lord Tebbit is quoted in ‘The Telegraph’ as saying:

“Well one test I would use is to ask [EU immigrants] on which side their fathers or grandfathers or whatever fought in the Second World War. And so you’ll find that the Poles and the Czechs and the Slovaks were all on the right side. And so that’s a pretty good test isn’t it?”

Boris Johnson, who is quoted in ‘The Australian’, regrets that access to the UK is not easier for Australians and Kiwis:

“The feelings about immigration in Britain and much of Europe are very difficult at the moment. But it’s crazy.

“We’re restraining numbers from Australia and New Zealand whilst we have absolutely unlimited access from 27 European countries.

“It just seems so peculiar to me. We fought together in two world wars. There’s huge cultural affinities, ties of blood relations, God knows what. I just think it’s bizarre … It has not been a great policy, in my view.”

“I’d like to see basically the same freedoms Europeans enjoy given to Australians and New Zealanders”

Free Movement of Workers in the United Kingdom 2008-2009

It is always nice to come across a substantial and well written analysis which I had overlooked.

REPORT on the Free Movement of Workers in the United Kingdom in 2008-2009 (and archived copy) is well written, and though it is more than 5 years old it remains relevant.

The report was apparently commissioned by the European Commission and prepared by Catherine Barnard (Cambridge University), Elspeth Guild (Radboud University Nijmegen), Alison Hunter (Wesley Gryk & Partners), Simon Roberts (Nottingham University), Nicolas Rollason (Kingsley Napley solicitors) and Bernard Ryan (University of Kent).

It begins:

The UK’s implementation of free movement of workers in 2008 revealed many continuities, and a few surprises. While the UK authorities place limited obstacles in the way of EU nationals seeking to exercise free movement rights to work in the UK (other than Bulgarians and Romanians), this laisser faire regime applies most successfully when there is no contact between the EU worker and the UK authorities. As soon as the EU national needs the assistance of the UK authorities, the problems start.

On immigration related matters, the UK agency responsible, UKBA, has been restructured, the team responsible for EU matters moved to Liverpool, and delays in dealing with requests for registration certificates (for EU citizens) and residence cards (for their third country national family members) have become quite extraordinary – by March 2009 the average delay between application and receipt was ten to twelve months. Further, UKBA requires renewed evidence of employment when it gets around to looking at a file but often provides the EU national only 14 days to submit it!

Regarding admission and departure, the UK authorities have refused admission to a Dutch parliamentarian on the basis of public policy. HM Inspector of Prisons found that 5% of persons detained in UK centres in France were Lithuanian nationals seeking to come to the UK. The Minister announced new measures on expulsion of EU nationals. In the press release, the Minister is quoted: ‘We are determined to remove people that harm our communities – wherever they are from. That is why we are making it easier to kick out European criminals and stop them from returning. In 2007 we removed over 500 European nationals. By reducing the threshold for deportation, we will ensure that we can remove even more’. The sentiment is rather at odds with the spirit of the EC Treaty.

The admission of third country national family members remained a matter of contention. The European Court of Justice (ECJ) decision in Metock 26 July 2008 was implemented in mid December 2008. However, now UKBA has increased the documentary burden on applicants substantially. UKBA considers that only direct family members benefit from the Metock ruling.

…

The report includes a Home Office response to some of the points raised.

Cameron speech proposing changes to free movement rules

David Cameron gave a “major speech” on EU free movement this past weekend.

Much of it is deeply grounded in the political situation in the UK, where the Conservatives have found themselves forced into a corner about immigration.  And it speaks to the views of an important minority in the UK.

The full text of the speech can be found on the BBC web site, and is worth reading.

Steve Peers has written an excellent analysis of what would be needed to implement the proposed free movement changes of Cameron.   You can use this to guage how likely or unlikely the Cameron proposals are to be implemented.  Remember that treaty change is difficult!

A lovely response by Rafal Trzaskowski, deputy foreign minister in Poland, is very clear that Poland will agree to no discrimination on the grounds of nationality.   He goes on to suggest that the UK could consider shifting to a contributory benefits system:

”This is an absolute red line, that there is no discrimination on grounds of nationality. If Britain were to change its policy, for example, into contributory system in which everyone has to pay in to get some money from the system we then could talk about changes if they were absolutely non-discriminatory.”

Are British ministers being advised properly by the civil service?

The Telegraph article Police checks for [EU] migrants (By Peter Dominiczak and Bruno Waterfield) suggests that unnamed British ministers are still woefully unaware of what they can do under EU law, or are possibly being misadvised by the Home Office:

Questions were immediately raised about how the Tories would be able to enforce deportations of out-of-work migrants, who are unlikely to appear on databases or official records.

However, a Cabinet minister familiar with the discussions said that migrants could be forced to register with police on arrival in the UK, allowing the authorities to check whether they had found work after six months.

 “We are considering all options,” the Cabinet minister said. “And requiring migrants to sign in and register at police stations is one of the things we are looking at.”

Making new arrivals register at police stations is common practice in many foreign countries, and ministers believe it would be simple to impose here.

“Registering at police stations” or city hall is common practice in some European countries, e.g. Germany and the Netherlands.   Where it applies to local citizens of the member state, it can also apply to EU citizens who are resident there.

But the Conservatives decided to scrap the requirement that British citizens have ID cards and continually register their current address with the government.   British citizens are not required to register, and so EU citizens (and their non EU family) can not be required to register on this basis.

There can be no other requirement for EU citizens to register within 3 months of their arrival.  The free movement Directive 2004/38/EC is very explicit:

Article 6 – Right of residence for up to three months
1. Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport.

Member states presently have the option of requiring EU citizens to register, but the UK has never bothered to do so.

Article 8 – Administrative formalities for Union citizens
1. Without prejudice to Article 5(5), for periods of residence longer than three months, the host Member State may require Union citizens to register with the relevant authorities.
2. The deadline for registration may not be less than three months from the date of arrival. A registration certificate shall be issued immediately, stating the name and address of the person registering and the date of the registration. Failure to comply with the registration requirement may render the person concerned liable to proportionate and non-discriminatory sanctions

So a one-off registration requirement is allowed, but not earlier than three months after arrival.   And failure to comply can be punished only with a “proportionate” sanction: Expulsion, for instance, would not be proportionate

EU Free Movement: Handbook on alleged marriages of convenience

The European Commission on has released an interesting summary of laws and guidelines: Handbook on addressing the issue of alleged marriages of convenience between EU citizens and non-EU nationals in the context of EU law on free movement of EU citizens

Why might you care, especially if you are happily married to an EU citizen, and definitely not in a marriage of convenience?

Because your right of free movement can only be prevented (except in a few rare cases) if an EU member state has evidence that you are participating in a marriage of convenience (and thus do not have a right of free movement).

The problem is, often staff of the immigration department do not know requirements the law in this area, and reject applications (without regard to the p.26 Burden of Proof) by simply shallowly claiming it is a “marriage of convenience”

Burden of proof is on the national authorities to prove abuse

Married couples cannot be obliged or required, as a rule, to present evidence that their marriage is not abusive. 

EU citizens and their family members enjoy the benefit of assumption, meaning that they do not need to provide evidence that their marriage is genuine. To require this would go beyond the requirement to present proof that their marriage is valid.

This reflects the principle of law that the person who lays charges has to prove the charges (‘semper necessitas probandi incumbit ei qui agit‘).

The burden of proof clearly rests on the national authorities who suspect that a non-EU national has entered into a marriage of convenience with an EU citizen for the sole purpose of being granted an EU right to free movement to prove that the marriage is of convenience.