Europeans who relocate to the UK, and marry a foreigner, by 31 December 2020 will be entitled to stay in the country without difficulties. For those who wish to move to the UK with their loved ones from 2021 onwards, the future is bleak. The Brexit reality is about to cause hardship for the families of EU citizens, writes Aleksandra Jolkina (QMUL).
In 2018, Agnieszka relocates from Poland to the UK where she finds a job as a sales assistant. Soon after arrival, she falls in love with Arben, a failed asylum-seeker from Albania who she meets at a party. The two ultimately move in together and dream of starting a family in their new home. However, their plans are jeopardised by Arben’s insecure immigration status. As his pending appeal is unlikely to succeed, he fears he would need to return to Albania, leaving Agnieszka behind.
But is there any way to avoid imminent separation? Fortunately, the answer is yes. As an EU citizen who has exercised her free movement rights, Agnieszka can rely on EU law to enjoy family life with her spouse in the host Member State. The couple gets married in 2019 and subsequently applies for the EU Settlement Scheme, designed to confirm the right of EU citizens and their family members to stay in Britain post-Brexit. Their application is successful, and Arben can now live and work legally in the UK without constantly worrying about the couple’s future and putting their family life on hold.
Agnieszka’s situation would have been very different, however, if she met Arben a couple of years later and did not manage to marry him by 31 December 2020, when the post-Brexit transition period ends. In this case, the couple would lose the protection guaranteed to them by EU law and become subject to British national family reunification rules, which are among the most restrictive in Europe.
EU free movement law: a generous approach to family reunion
Since the very inception of free movement, every EU citizen moving to another Member State has always had a right to live there with his or her family members, irrespective of their nationality. EU decision-makers reasonably believed that EU citizens would not be ready to leave their countries of origin if their close ones could not join them, a situation that would hamper intra-European mobility.
Under the Citizenship Directive, non-EU family members of mobile EU citizens acquire residence rights in the host Member State automatically, without having to satisfy any further conditions, such as income requirements or language tests. The scope of these rights has also been continuously broadened by the Court of Justice of the EU (CJEU). In its case-law, the Court strove to eliminate all possible barriers to family reunion, which was supposed to ensure that EU citizens can move freely across Europe.
As early as 1992, the CJEU extended the generous rights to family reunion to EU citizens who return to their country of origin from another Member State, bringing with them their non-EU national family members (Surinder Singh, Case C-370/90). Further, in its landmark ruling in Metock (Case C-127/08), handed down in 2008, the Court held that the non-EU spouse benefits from the Citizenship Directive irrespective of his or her previous immigration status in the Member State concerned, as well as of where and when the marriage took place. The judges reasonably argued that the refusal of the state to admit the EU citizen’s new spouse, even if the latter was an irregular migrant, would discourage the EU citizen from continuing to reside there and encourage them to leave for another country where they could lead a family life.
This logic is more than convincing. Many mobile EU citizens in the UK work, study and socialise with people from all over the world. It is thus indeed unsurprising that some Polish, German or Portuguese nationals start a relationship with migrants who happen to possess a short-term or irregular status and have no chance to regularise their position in the UK. To people like Agnieszka, the judgment in Metock offers extra protection and security: she would not get separated from her husband even if his appeal had already been rejected or, for instance, if he had outstayed his visa.
UK immigration law: logic of exclusion and control
Yet, over the past decade, the generous EU approach has become a major point of friction between the EU and the British authorities. The UK has a long history of the so-called ‘reverse discrimination’, subjecting its own nationals to more restrictive family reunification provisions than mobile EU citizens. Aiming to reduce the numbers of family migrants who could not be selected in the same way as foreign labour force, the UK government significantly tightened up the rules for the entry and residence of family members of British nationals and settled persons.
The most far-reaching measure has been the introduction of the onerous financial requirements for mixed-status couples. To sponsor a foreign spouse, a UK national now needs to earn at least £18,600 per year (plus extra for sponsoring children), a threshold that has been impossible to meet by a significant part of the country’s adult working population. Furthermore, spouses of British nationals with short-term leave to remain are prohibited from switching to the marriage category within the UK. Unlike spouses of Polish or German nationals, they need to leave the country and apply for family reunification from abroad, which may prove a complicated, lengthy and expensive journey with an uncertain outcome.
What happens after the cut-off date?
Since the restrictive measures could not be applied to family members of mobile EU citizens, the UK began to denounce the Citizenship Directive as a ‘loophole’ enabling otherwise undesirable non-EU nationals to sidestep the country’s immigration law. Together with a few other Member States, the British authorities have continuously attempted to persuade EU institutions to narrow down family reunion rights. After Brexit, the UK government has ultimately succeeded in its endeavours.
Under the EU-UK Withdrawal Agreement, EU citizens who relocate to the UK and marry a foreigner by 31 December 2020 will be entitled to stay in the country on the same terms as under the Citizenship Directive. By contrast, all those who meet or marry their partners after that date will need to comply with the UK domestic family reunification provisions, such as the minimum income requirement and the ‘no-switching’ rule, as well as pay a high application fee. Similar, including financial, requirements will also apply to EU citizens who move to the UK after the cut-off date and who themselves will be treated as foreigners under the new points-based immigration system (PBS).
Worse still, the new rules are expected to cover not only non-EU national but also EU citizen family members who may no longer be able to obtain residence rights on their own capacity. If, after the cut-off date, a German national with a settled status in the UK marries another German national who lives in Germany, the UK resident party will need to earn at least £18,600 per year to bring their spouse to the UK (provided that the latter does not qualify under PBS). The Surinder Singh route in the UK will also be effectively abolished. This will deprive British nationals of the ultimate opportunity to avoid the restrictive national rules by moving with their loved ones to another EU Member State and bringing them back to the UK under EU law.
In addition, UK authorities will no longer need to respect EU law safeguards when targeting perceived marriages of convenience. After the end of the transition period, marriages involving EU citizens will become subject to much more intensive scrutiny. At present, EU law offers mobile Member State nationals a relatively high level of protection against state interference in their family life. First, the non-EU spouse is entitled to a residence permit even if the couple does not live under one roof, as long as they have not officially divorced. This approach is commendable, given that many couples may choose to live separately for a variety of reasons, such as different job locations. Moreover, even if the relationship between the spouses has deteriorated, it is not for the state authorities to decide whether reconciliation is still possible.
Secondly, and most importantly, the state authorities are only allowed to examine the nature of marriage on a case-by-case basis, and systematic checks are prohibited. Currently, to prove a family relationship, spouses of EU citizens only need to present a marriage certificate. By contrast, UK immigration law requires all applicants to provide extensive evidence that their relationship is ‘genuine and subsisting’, such as joint tenancy or mortgage agreements, utility bills, photos, correspondence, and bank statements. The burden of proof in these cases remains on the applicant, and refusal of the Home Office to admit family members is not subject to appeal.
Last, but not least, the definition of family members in British law is narrower than it is under EU law. Under the Citizenship Directive, the category of direct family members includes spouses, civil partners, children under the age of 21 and dependent parents and grandparents. In UK immigration law, this group is limited to spouses or civil partners, children under 18 and unmarried partners, provided that the latter submit extensive evidence of living together in a relationship ‘akin to marriage’ for at least two years. Other relatives may qualify for admission only if they need long-term care because of illness, disability or old age, and if such care is not available or affordable in their country.
For those who may wish to live with their close ones in the UK, the future seems rather bleak. The post-Brexit developments are likely to create significant hardship for the families of EU citizens and may effectively result in their separation, or alternatively, prompt them to relocate to another country. If Agnieszka had to choose between her life in the UK and a relationship with Arben, it is quite likely that the couple would have eventually decided to move to another EU Member State where Arben would acquire residence rights automatically. The harsh family reunification rules will thus add to the extensive list of changes that leave EU citizens feeling unwelcome in Brexiting Britain.
This article gives the views of the author, and not the position of LSE Brexit, nor of the London School of Economics.
My wife and I are both British from birth but because my mother in law gave up her UK rights many years ago she is not able to return and live here in her old infirm years meaning my wife has to travel to her country to provide care.
Forgive me for not being upset that EU immigrants no longer have superior rights to British nationals in the UK.
Our country our rules seems fair to me ;Why should others be free to just up sticks and come here and enjoy our society welfare state ; housing; hospitals etc with out contributing for at least 5 years ;I’m not racist by any means but we have limited space and facilities ;
You’ve cpmpletely missed the point – it’s punishing families like mine where 1 person is a British national and the other is European. Wherever we live, one of us is a foreigner in the other’s country. If I want to return to the UK because, for example, I need to look after my elderly or sick parents who are BRITISH, then I won’t be able to. Perhaps my 3 children, who are BRITISH find themselves living in the UK, the country of their birth, but we (their parents married for over 20 years) won’t be able to live near them because of a pointless and unecessary immigration law. We were married in 1999, we lived together 10 years in the UK before moving to France.
I’m completely against Brexit but it’s happened, and I accept it. But it doesn’t have to be like this. It’s punishing BRITISH people like me, thousands of us in the same boat. This rule is just typical Tory vindictiveness and anti-immigrant anti-EU spitefulness. It didn’t have to be like this but the government let it be because they didn’t adopt a Lords amendment that would have stopped this.
Aleksandra, thank you for the article. I think there is one correction that needs to be made. “To sponsor a foreign spouse, a UK national now needs to earn at least £18,600 per year (plus extra for sponsoring children)” However an alternative way of meeting this requirement is if you have sufficient cash savings. I refer to the following document https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/934644/appendix-fm-1-7-financial-requirement-v4.0-gov-uk.pdf . I don’t understand all the details, but there is a table on page 44 which indicates that instead of an income of 18,600 pounds, it is enough to have cash savings under your control (for the last 6 months, I think) of at least 62,500 pounds. This is of course especially important for retirees.
I am in the same boat ,i am British born in the uk came to spain a few years ago. i have 3 kids and my partner is Spanish . Now i can return to the uk but my partner cannot. And there is so much confusion on the process and costs involved. We can apply for a family reunification visa that lasts 2.5 years and you have to reapply after for another 2.5 years. Cost involved in the thousands. Then apply for a settled status more money involved. I understand that why people voted but this is affected British citizens now
This is just one aspect of the UK’s very restrictive immigration rules which are hostile to even British citizens who have lived outside the UK with a non-UK spouse returning to the UK. The Guardian published an article yesterday which illustrates the problem graphically:
The first paragraph of this article quotes Priti Patel’s boast of her “delight, after many years of campaigning,” that free movement between the EU and Britain would at last end on 31 December. For me, that boast is extraordinarily sad, that she should rejoice that the rights of British citizens to live, study and work throughout the EU is coming to an end, and that in the process people who in good faith exercised those rights are being placed in such a dreadful position.
I am always amazed at the old trope that immigrants come to the UK to rip off the poor English. This has been disproved by so many studies that one wonders why it keeps reappearing. When one considers that over 25 million English emigrated in the nineteenth century without visas, one could argue that it‘s a two-way street which should remain open.
This article have some different info regarding parents of EU citizens after Brexit.So what is true?
Brexit was achieved based entirely on lies. Therefore as an EU citizen I’m not subject to the brexit laws of dishonesty and lies that the current Conservatives do in Parliament.
I am British national living in spain for 5 years my wife is anon eu citizen, Algeria with a full residency card in spain. it use to be article 10 residency card we went on holiday before Brexit without the need for a visas for her. now we have decided to move back to UK, there is a contradiction in the governement website , dies she neeed a visas or not
Returning from the EU
UK nationals’ children and existing close family members (including spouses, partners, parents and grandparents) who are moving to the UK from the EU, after the UK has left the EU, will be able to do so without the need for a visa until 29 March 2022. Those moving to the UK after 29 March 2022 will need to apply for a visa.
Other dependent family members and future spouses of UK nationals (where the relationship was established with the UK national after the UK has left the EU) who are returning to the UK from the EU, after the UK has left the EU, will be able to do so without the need for a visa until 31 December 2020. Those moving to the UK after 31 December 2020 will need to apply for a visa.
Returning from outside of the EU
UK nationals’ family members with EEA or Swiss citizenship who live outside the EU and are moving to the UK after the UK has left the EU will be able to do so, without the need for a visa, until 31 December 2020.
UK nationals’ family members without EEA or Swiss citizenship who live outside the EU and are moving to the UK after the UK has left the EU will be able to do so following a successful application for a family visa.