‘Sham’ marriagesThe first problem is ostensibly the easiest to police as it does not impinge on the existing treaty rights of European citizens. Cameron’s agreement would propose to amend three EU laws relating to immigration: the EU citizen’s directive, which governs most EU citizens moving to other member states; the EU regulation on free movement of workers; and the regulation on social security. All three of these amendments pertain to family law. Currently, EU citizens’ freedom of movement rights extend to their spouse or partner, their children (who are under 21 or dependent), and their dependent parents. Cameron’s renegotiation will attempt to limit the scope for these rights being exercised in cases where that EU citizen’s family members are not themselves European citizens. It will also attempt to tackle alleged abuse of these rules. As many European countries have far less stringent immigration restrictions for spouses than the UK, there is an incentive for EU citizens to engage in a sham marriage in another member state before bringing their spouse to the UK under European freedom of movement rules. The deal attempts to address this head on, however, the wording of the text is incredibly ambiguous and does not detail specifically how it would limit sham marriages:
“In accordance with Union law, Member States are able to take action to prevent abuse of rights or fraud, such as the presentation of forged documents, and address cases of contracting or maintaining of marriages of convenience with third country nationals for the purpose of making use of free movement as a route for regularising unlawful stay in a Member State or for bypassing national immigration rules applying to third country nationals.”It seems as if this clarification will primarily impact the ability of EU citizens to bring spouses to the UK who were not-lawfully resident in the EU before their marriage. Currently, in certain EU countries, it is not necessary to prove that a non-EU spouse is legally resident in the EU before their marriage to an EU partner. Thus it is possible for someone who is illegally resident in the EU to come to the UK lawfully after marrying an EU spouse. The agreement will exclude these people from the citizen’s directive, making it impossible for them to follow their EU partners to the UK under their EU freedom of movement rights. As several commentators have observed, the implications of this decision are not clear. For instance, we do not know if such a person would be excluded from the UK permanently, or, if that person were to be legally admitted to the EU under another Member State’s national immigration law, whether they would eventually be able to exercise their spouse’s freedom of movement rights.
The Surinder Singh routeThe second area which the renegotiation will attempt to tackle relates to the Surinder Singh route, which we have covered on family law news previously. In brief, Surinder Singh allows British citizens to bypass the UK’s stringent rules on bringing non-EU spouses to the UK. This is done by moving to an EU (or EEC) member state for a period of time (usually considered to be longer than three months) before returning to the UK. In such cases, it is considered that returning person is exercising their treaty rights as an EU citizen and not a British citizen, thereby exempting them from British immigration restrictions. The text promises that the European commission will clarify these rules. Specifically:
“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 aspect of the agreement is a direct attack on the Surinder Singh route. However, it does not detail in any way how Member States will address these alleged abuses of free movement rights. Indeed, the agreement makes clear that these proposals will not even be included in the legislative proposal, stating that:
“These clarifications will be developed in a Communication providing guidelines on the application of Union law on the free movement of Union citizens.”This means that there is no biding agreement that any aspect of the Surinder Singh route will be altered by the negotiation, in spite of David Cameron’s obvious enthusiasm to do so. Immigration reform remains a top-priority for David Cameron’s government and a defining issue of the EU referendum campaign. Cameron was, unsurprisingly, unable to secure any curtailment of EU citizens’ freedom of movement rights, so it may be expected that he will zealously attempt to trim the rights of non-EU citizens. However, it appears that he has been stymied by the EU negotiators in this attempt too and that his attempt will, as many things do, be lost in the web of red-tape that is Brussels.