Comment: EU draft revision to free movement rules

David Cameron’s negotiations with the EU have been all over the news these last few days, with a lot of focus on Donald Tusk’s response to his key demand for a 4-year ban on in-work benefits for EU migrants.
While the European Council has proposed a compromise which many are calling a defeat for Cameron, there are other, less noticed, concessions in proposed changes to the free movement laws (pdf), which could have a direct bearing on the ability of UK citizens to bring their non-EU family home.
Steven at BritCits has done an initial analysis in his blog post here, and explores his understanding of the changes, focusing on two key statements:
  1. “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. ”
  2. “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.” 
Combined, these statements seem to dramatically change the landscape for those seeking to gain a family residence permit living in Europe and then follow the Surinder Singh path to the UK. The first point is a bit of a tangle but seems to suggest that under this proposal, to exercise free-movement rights, a non-EU partner needs to either
  1. establish independent residency, on their own merit, in the EU country before getting married to an UK citizen, or
  2. once married, the UK partner may be able to gain residence in a third EU country and meet that country’s requirements to sponsor a family member. (I admit, based on the wording I find this scenario pretty unclear)
In short, the proposal seems specifically targeted at closing the option of moving to an EU country with less restrictive rules than the UK, getting married, and then applying for a family permit.
The second part of the proposal is I think even fuzzier, as there is no way to objectively quantify “sufficiently genuine.” It goes beyond proving your relationship is “real” into forcing people to prove the underlying motivation of having moved abroad in the first place, and leaves the decision open to a completely subjective opinion.
Full information on the EU proposals is available here. It is  just a draft proposal, and it may yet change, but it is important that people know what is on the table. As it stands it would appear that Surinder Singh would still be possible, but could be significantly harder. It’s not clear how non-spouse family would be affected, and as Steven points out in the BritCits newsletter, these proposals raise more questions than they answer. There is far more that we don’t know about what the impacts might be than what we do know right now.
There are some things you can do, right now, though:

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