So the UK government has made much of the abuse of the right of EU citizens to move freely between member states, with their family members, even where the family members are third country nationals. The European Commission seems to have given massive concessions with this extract from the draft declaration (bear in mind this is just a draft) :
"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. "
Further down, the declaration states "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." which
is a direct attack on those undertaking the Surinder Singh route, so it
will need to be clearer that the moving to another EU country and then
returning eventually to the UK was not for the purpose of evading the UK
I set out my understanding below - I think this is right, but if not apologies in advance. This is all a bit new for me as it is for everyone but I will correct if realise there are any errors.
Example - current
Scott is a British citizen. His wife, Lila, is from India.
Under current EEA regulations, Scott and Lila can use free movement to move to France which specifically excludes income and language requirements.
There are conditions imposed on Scott's right of residence however, in that he needs to be engaging in certain permitted activities, like working or being self-employed, studying or self-sufficiency.
If after some time Scott wishes to move to the UK (and utilise the Surinder Singh route), he can do so with his Indian wife and be exempt from the UK income threshold of £18,600 and the English language requirements, as long as he can evidence acceptable activity in France (which by UK's interpretation seems to be only work or self-employment). Alternatively, he can also use free movement rights to move to Germany or Ireland or any other member state, with Lila.
Example - as proposed
However, if the draft declaration comes to fruition then Lila could only move to France if either
i) she and Scott satisfy the French immigration rules for sponsoring a family member, or
ii) if she is able to obtain a visa allowing her to reside in France herself (e.g. perhaps through a work visa).
Once she is resident in France legally, the couple can then exercise their free movement rights to move to another member state, or indeed, the UK if their time in France cannot be interpreted by the Home Office as being for the purpose of evading UK immigration rules.
However, were Scott to have married after establishing his residence in France, they could not use free movement rights to live in France or another member state immediately. There will need to be
i) first, an instance of having lived in a member state together with the third country national under the domestic immigration rules and
ii) second, the EU citizen having moved to the member state (the residence in which he wishes to use as the base for the free movement exercise with his third country national spouse) only after his marriage took place.
Update added for clarity: So say I as a British citizen move to France and establish my residence
there. I subsequently get married and my non-EU husband moves to France (on
say a work visa under French immigration rules). We would not be able
to move to the UK using free movement, because our
marriage took place after my residence in France was established.
Assuming these rules apply to all member states, we would not even be
able to use free movement to move to Germany because the marriage took
place after my residence in France was established. However, if we move
to Germany and he gets a work or spouse visa under German domestic
immigration rules, and I establish residence in Germany, THEN we can
move to another member state using free movement or even use free movement to move to the UK, as long as HO is not able to suggest that the
purpose of my residence in France and/or Germany was to evade UK
There doesn't appear to be any changes for family members like elderly parents or children, for whom the free movement rights appear to be exercisable from the outset; less clear on the situation for unmarried partners...I expect the intention would be to treat them as spouses but it's not mentioned in this declaration.
So yes Surinder Singh will be harder but its not closed - the non-EU spouse will at some point need to meet at least one member state's domestic immigration rules, family life will need to have been strengthened or created living in that member state and if returning to the say the UK (if the EU citizen is British) under free movement rights, the family may be required to evidence that living in another member state and now moving to the UK was not to evade UK immigration rules...although more likely the onus on proving they were attempting to evade will remain with the Home Office but being able to disprove the very likely assertion would be helpful.
Edit: upon reflection I think the changes will make it really hard for anyone with adverse immigration history, be it just a visa refusal. UK visa refusals may for example make it harder to get a visa for Spain and if the applicant succeeds there, then the earlier visa refusal may lead UK to suggest the move to Spain was to evade UK rules as evidenced by an earlier intention to live in the UK! Best thing now may be well, use your FM rights sooner rather than later, and if after any such changes come into force, don't even bother applying for a UK visa if you suspect it will be refused, because the refusal is very likely to work against you in the future if you decide to move to the UK using free movement rights. Where in any doubt, do seek legal advice.
More light no doubt will be shed over the coming weeks and maybe months especially on what will constitute 'establishing residence'. Looking forward to lawyers providing a legal interpretation to replace my lay one!
Relevant links: The wonderful Steve Peers, an expert on all things EU, has blogged his view on today's draft declaration.