Explaining the EU deal: limiting residence rights for family members

The Prime Minister’s renegotiation deal on the UK’s European Union membership is a package of changes to EU rules. It was agreed by European leaders on 19 February 2016. In this series of articles, some of the country’s leading experts in EU law explain the deal and what it changes.

Tackling “the abuse of free movement” has been a key theme in David Cameron’s renegotiation with the European Union.

The Prime Minister cited “sham marriages”, as well as “the fact that it is easier for an EU citizen to bring a non-EU spouse to the UK than it is for a British citizen to do the same” to explain this part of his renegotiation proposals.

What’s the situation at the moment?

EU law gives a range of rights to family members of EU citizens who are not EU citizens themselves.  

The most important of these is the right of EU citizens and their non-EU family members to live together when an EU citizen moves to another EU country.

And if EU citizens move back to the country where they had lived before, they may be able to bring their non-EU family members back with them in certain circumstances.

In several EU countries, including the UK, this means that family reunification is easier for EU citizens who have moved from elsewhere than for British nationals who can’t use the EU rules.

In a “limited number of cases”, people marry EU citizens with the motivation of, in the words of the draft EU deal, “bypassing national immigration rules”.

Such situations are already recognised as an abuse of the free movement rights in EU law. Against that backdrop, the renegotiation deal contains proposals that could affect the rights currently given to non-EU family members in two main ways.

Non-EU spouses won’t always be able to stay in one EU country just by marrying a citizen of another

First, the European Commission intends to change EU law 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”.

In other words, people from outside the EU with no right to live in the UK would not be able to get permission to stay by marrying an EU citizen who has moved here.

This limit on residence rights had already arisen in cases at the EU court.

Initially, the court had accepted that countries could refuse to give residence rights to the non-EU spouse of an EU worker returning to their home country when the spouse had never had a legal right to live there before the marriage took place.

But the Citizenship Directive brought in after the court delivered that judgment didn’t include a rule about non-EU family members needing “prior lawful residence”.

So in a subsequent case, the court reversed its earlier position. It said that free movement rights can only be limited if the particular limit or condition is spelled out in the relevant legislation.

The proposal in the EU deal would do just that. It tries to manage the court’s concerns by writing a “prior lawful residence” rule into the law limiting free movement rights.

Some marriages won’t give people residence rights at all

Second, the proposed changes would rule out residence rights for any non-EU spouses who marry an EU citizen “only after the Union citizen has established residence in the host Member State”.

So if, say, a Chinese man applied to stay in the UK because of his marriage to a Spanish woman, he wouldn’t be successful if they had married after his wife moved here.

This would be a significant change since, at present, it doesn’t matter when people get married.

These changes could still be challenged at the EU court

For both of these proposed changes, the Commission would be invoking the fact that the EU treaties allow for limitations and conditions that restrict free movement rights so long as they are made clear in legislation.

But such restrictions must also be compatible with the right to respect for family life of EU citizens. This is in the EU's Charter of Fundamental Rights and has been emphasised by the EU court in its case law on these questions.

In other words, even where limits on free movement rights are explicitly spelled out in EU legislation—thus meeting a requirement set down in the treaties—they would have to be changed if the EU court judges that they breach human rights law.

So it’s very likely that, if the Commission’s proposals become law, they will subsequently be challenged before national courts and tribunals, which are in turn likely to seek the guidance of the EU court.

“Sham marriages” can already be tackled

Finally, the proposals remind us that governments can already prevent the abuse of free movement rights that occurs when an EU citizen enters into what’s known as a “marriage of convenience” with a non-EU citizen—that is, in this context, a marriage contracted purely for the purpose of trying to create residence rights under EU law.

The Commission has already published a Handbook “to help national authorities effectively tackle individual cases of abuse in the form of marriages of convenience”. Nevertheless, it has pledged to clarify this area of the law even further with additional guidelines.

Update 22 February 2016

We revised the article to take into account the final version of the EU deal published on 19 February, rather than the draft of 2 February as in the original.