Ares(2013)154485 - 06/02/2013

DIRECTORATE-GENERAL HOME AFFAIRS Directorate В: Immigration and asylum Unit B.1: Immigration and integration Head of Unit

0 6 FEV. 2013

British Citizens (BritCits) Mr. Steve Green By e-mail: Ce.: Dear Mr Green, I refer to your email message sent to Commissioner Cecilia Malmström on November 20th, 2012. Your request was sent to me as Head of the unit 'Immigration and Integration', Directorate General Home Affairs of the European Commission. Please accept my apologies for a delay in replying to your question. In your request you explain that you represent British citizen who are adversely affected by recent changes to the family immigration laws in the United Kingdom. I understand from your e-mail, and the documentation in attachment, that under these new laws financial thresholds have been introduced which need to be met in order to be able to bring a non-EU partner into the UK. You quote numbers from the Oxford University's Migration Observatory according to which 47% of British citizens in employment do not meet these thresholds. You also write that the British government cannot limit immigration of citizens of other EU Member States nor of their non-EU spouses and family. Since citizens of other EU Member States have the right to bring their non-EU spouse into the UK and 47% of British citizens do not have this right under the new laws, you question whether this would not amount to discrimination of British citizens. Therefore, you would like to explore the possibility for a European challenge to these new laws, potentially on the grounds of human rights, right to family life, rights of children, or discrimination. Let me inform you that in EU law, provisions concerning family reunification are laid down in Directive 2003/86/EC1 on the right to family reunification of third-country nationals (hereafter "the family reunification directive") and in Directive 2004/3 8/EC2 on the right of Union citizens and their family members to move and reside freely within the territory of the Member States (hereafter "the free movement directive"). The family reunification directive covers only third country nationals (non-EU citizens) and their family members, and as such does not apply to EU citizens who wish to be


' http://eur-lex.europašeu/LexUriServ/;0012:0018:EN:PDF

Commission européenne, B-1049 Bruxelles / Europese Commissie, B-1049 Brussel - Belgium. Telephone: (32-2) 299 11 11

joined in an EU Member State by their non-EU family members and spouses. Since your request concerns British citizens and thus EU citizens, the family reunification directive is not applicable. The free movement directive only applies to EU citizens who move to or reside in a Member State other than that of which they are a national, thus exercising their rights of free movement. Only in such situations can EU citizens invoke a right under this Directive to be joined or accompanied by their family members, such as their spouses, notwithstanding the nationality of these family members. A British citizen residing in the UK has not exercised his/her EU movement rights. Therefore this is a situation purely internal to a single Member State and as a consequence the free movement directive is not applicable to him/her. As a result, it remains a matter for UK national legislation to lay down rules on the right for family reunification, residence permits and visas, for its own nationals and for their third country national family members. Since there is no factor linking this situation to a situation governed by EU law, the European Commission has no competence in this purely internal situation. It is at the UK authorities' discretion to decide whom to grant or deny entry to its territory and to set the conditions for this. The situation is different if a British citizen, for example, first exercises his/her right of free movement under the free movement directive and moves to another EU Member State, and subsequently returns to his/her home state. In this case the British citizen has exercised his/her EU rights and does not return to a purely internal situation. Therefore he/she can invoke his/her a right under the free movement directive to be joined or accompanied by their family members, such as their spouses, notwithstanding the nationality of these family members.3 The information in your request leads to the conclusion that, in general, the described situation of British citizens is not covered by EU legislation since neither the family reunification directive (as he is an EU citizen) nor the free movement directive (as he is residing in the Member State of his nationality and is hence not exercising his right to freedom of movement) are applicable, except in case the British citizen in question has first exercised his/her right to free movement and subsequently returned to the UK. Consequently, the Commission lacks competence to intervene under EU law, except when the right to freedom of movement has been exercised by the British citizen in question. I hope these elements were useful. Yours sincerely,


3 Case

C-370/90 Singh [1992] ECR 1-4265.