7/29/2019 Comms Malmstrom

1/2

EUROPEAN COMMISSIONDIRECTORATE-GENERAL HOME AFFAIRSDirectorate : Immgrationand asylumUnit B.1 Immigration andintegrationHead of Unit 0 6 F E V . 2013

Brussels,HOME/Bl/LB/dgBritishCitizens (BritCits)Mr.SteveGreenBye-mail: siplep@.gmail.comCe.: BritCits@gmail.com

Dear Mr Green,I refer to your email messagesent to Commissioner Cecilia Malmstrmon November20th, 2012. Your request was senttome asHeadof the unit 'Immgrationand Integration',Directorate General Home Affairs of the European Commission. Please accept myapologiesforadelay in replyingtoyourquestion.Inyour request youexplainthat yourepresent Britishcitizen who are adversely affectedby recent changes tothe famly immigrationlaws in theUnited Kingdom. I understandfrom your e-mail, and the documentation in attachment, that under these new lawsfinancial thresholds havebeen introduced which need to be met in order to beable tobringa non-EU partner into the UK. You quotenumbers from theOxford University'sMigrationObservatory according to which 47%of Britishcitizens in employment donotmeet these thresholds.Youalso writethat theBritishgovernment cannot limt immgrationof citizensof otherEU Member States nor of their non-EU spousesand famly. Since citizens of other EUMember States have the right to bring their non-EU spouse into the UK and 47% ofBritish citizens do not have this right under the new laws, you question whether thiswould not amount to discrimnation of British citizens.Therefore, you would like to explore the possibility for a European challenge to thesenew laws, potentially on the grounds of human rights, right to famly life, rights ofchildren, or discrimination.Let me inform you that in EU law, provisions concerning famly reunification are laiddown in Directive 2003/86/EC1 on the right to famly reunification of third-countrynationals (hereafter "thefamlyreunification directive") and inDirective2004/3 8/EC2ontherightof Unioncitizensand their famly memberstomove andresidefreely within theterritoryof the MemberStates(hereafter "thefree movementdirective").Thefamily reunification directive covers only third country nationals(non-EU citizens)and their famly members, and as such does not apply to EU citizens who wish to be

'http://eur-lex.europaeu/LexUriServ/LexUriServ.do?uri-OJ:L:2003:2510012:0018:EN:PDF2 http://eur-lex.euroDa.eu/LexUriServ/LexUriSe-rv.do?uri=OJ:L:2004:158:0077:0123:EN:PDF

Commssioneuropenne,B-1049Bruxelles /EuropeseCommissie, B-1049Brussel - Belgium.Telephone: (32-2) 299 1111

7/29/2019 Comms Malmstrom

2/2

joinedinan EU Member Stateby theirnon-EU famlymembersandspouses. Since yourrequestconcerns British citizens and thusEU citizens, the famly reunification directiveisnotapplicable.Thefreemovement directive only applies to EU citizens who move to or reside inaMemberStateother than that of which they areanational, thusexercising their rightsoffree movement. Only in such situations can EU citizens invoke a right under thisDirective to be joined oraccompanied by their famly members, suchastheir spouses,notwithstandingthenationalityof thesefamlymembers. A British citizenresiding intheUK has not exercised his/her EU movement rights. Therefore this is asituationpurelyinternal to asingle Member State andasaconsequence the free movement directive isnotapplicabletohim/her.Asaresult, itremainsamatter forUK national legislationtolay down rules on the rightfor famly reunification, residence permts and visas, for itsown nationals and for theirthird country national famly members. Since there isno factor linkingthissituationtoasituation governed by EU law, the European Commssion has no competence in thispurely internal situation. It isattheUK authorities' discretiontodecide whomtograntordenyentry toitsterritory andtosetthe conditionsforthis.Thesituation is different if aBritish citizen, forexample, first exerciseshis/her rightoffree movement under the free movement directive and moves to another EU MemberState, and subsequently returns to his/her home state. In this case the Britishcitizenhasexercised his/her EU rights and does not returnto apurey internal situation. Thereforehe/she can invoke his/her a right under the free movement directive to be joined oraccompanied by their famly members, such as their spouses, notwithstanding thenationalityof thesefamly members.3The information inyour request leads to the conclusion that, ingeneral, the describedsituation of British citizens is not covered by EU legislation since neither the famlyreunification directive (ashe isan EU citizen) nor the free movement directive(asheisresiding in the Member Stateof hisnationality and ishencenot exercising his right tofreedomof movement)areapplicable, except incase the British citizen inquestion hasfirst exercisedhis/herrightto freemovementand subsequently returnedtothe UK.Consequently, the Commssion lacks competence to intervene under EU law, exceptwhen the right to freedomof movement has been exercised by the British citizen inquestion.I hope theseelementswere useful.Yours sincerely,

Diane SCHMITT

3Case C-370/90Singh [1992]ECR 1-4265.2