Amendment to EEA Regulation from 1/01/2014 Singh diluted

Obie wrote:I dont think the judgement is that bad at all. Although I would have hoped for it to go further.


For people in the UK, it provides an extention of Regulation 9, beyond the economic activity people.

It makes clear that rights under Article 6 cannot qualify. But residence in conformity with Article 7 (1) and 7 (2) will qualify.

It states that residence in conformity with article 7, could on its own , qualify as genuine residence.

Someone does not have to resided in a memberstate for more that 3 months for their residence to be in conformity with article 7.

Article 7 does not say that someone has to have been in amemberstate for more than 3 months to exercise treaty rights. It simply states that residence beyond 3 months has to conform with Article 7 for it to be in accordance with the directive.

The judgement also made clear that those who have secured PR in the host memberstates also qualify.

So far as concerns the conditions for granting, when a Union citizen returns to the Member State of which he is a national, a derived right of residence, based on Article 21(1) TFEU, to a third‑country national who is a family member of that Union citizen with whom that citizen has resided, solely by virtue of his being a Union citizen, in the host Member State, those conditions should not, in principle, be more strict than those provided for by Directive 2004/38 for the grant of such a right of residence to a third‑country national who is a family member of a Union citizen in a case where that citizen has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national. Even though Directive 2004/38 does not cover such a return, it should be applied by analogy to the conditions for the residence of a Union citizen in a Member State other than that of which he is a national, given that in both cases it is the Union citizen who is the sponsor for the grant of a derived right of residence to a third‑country national who is a member of his family.

It should be added that the scope of Union law cannot be extended to cover abuses (see, to that effect, Case C‑110/99 Emsland‑Stärke [2000] ECR I‑11569, paragraph 51, and Case C‑303/08 Bozkurt [2010] ECR I‑13445, paragraph 47). Proof of such an abuse requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the European Union rules, the purpose of those rules has not been achieved, and, secondly, a subjective element consisting in the intention to obtain an advantage from the European Union rules by artificially creating the conditions laid down for obtaining it (Case C‑364/10 Hungary v Slovakia [2012] ECR, paragraph 58).

dalebutt wrote:The court has rather tread carefully in it's passing of the judgment, whilst it doesn't limit SS to the exercise of treaty right by being employed or self employed which is good, it has left "Uncle Denmark" with a big leverage in defining what an established genuine residence would mean in the host member state, which will be quickly adopted by their subordinate (UKBA), I can think of so many way establishing genuine residence will mean in host member state in UKBA terms of course, probably starting in the range of one and half year.

The granting of residence card in the host member state does not expressly mean the returning member state should grant the same, this is still not a walk in the part for people wishing to do SS now, as it will mean first and foremost they must be issued with a residence card in the host member state before thinking about returning, that is the first hurdle to jump before facing the UKBA's establishment of genuine residency test. God help British citizens and their spouses, this is going to be tough.

dalebutt wrote:Yes they can.

Obie wrote:I agree with you Rose, that the test for S and G will be pretty tough.

But the case of O and B does not indicate a tough test at all.

Create or strengthen simply mean, in my opinion, family life established in the host state, such as by marriage, or strengthen by family joining from a third country or accompanying the EU citizen.

It is important to note that once it has been established that right under 7 (1) or 16 (1) has been established, those people cannot face a stricter requirement on return.

It is for the referring court to determine whether sponsor O and sponsor B, who are both Union citizens, settled and, therefore, genuinely resided in the host Member State and whether, on account of living as a family during that period of genuine residence, Mr O. and Mr B. enjoyed a derived right of residence in the host Member State pursuant to and in conformity with Article 7(2) or Article 16(2) of Directive 2004/38.

53. On the other hand, an obstacle such as that referred to in paragraph 47 above may be created where the Union citizen intends to exercise his rights under Article 7(1) of Directive 2004/38. Residence in the host Member State pursuant to and in conformity with the conditions set out in Article 7(1) of that directive is, in principle, evidence of settling there and therefore of the Union citizen’s genuine residence in the host Member State and goes hand in hand with creating and strengthening family life in that Member State.

58. It should be added that the scope of Union law cannot be extended to cover abuses (see, to that effect, Case C‑110/99 Emsland‑Stärke [2000] ECR I‑11569, paragraph 51, and Case C‑303/08 Bozkurt [2010] ECR I‑13445, paragraph 47). Proof of such an abuse requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the European Union rules, the purpose of those rules has not been achieved, and, secondly, a subjective element consisting in the intention to obtain an advantage from the European Union rules by artificially creating the conditions laid down for obtaining it (Case C‑364/10 Hungary v Slovakia [2012] ECR, paragraph 58).

Jambo wrote:It seems that the HO is really trying hard to make it difficult for British citizens to bring non EEA family members to the country.

Obie wrote:I dont think the judgement is that bad at all. Although I would have hoped for it to go further.


For people in the UK, it provides an extention of Regulation 9, beyond the economic activity people.

It makes clear that rights under Article 6 cannot qualify. But residence in conformity with Article 7 (1) and 7 (2) will qualify.

It states that residence in conformity with article 7, could on its own , qualify as genuine residence.

Someone does not have to resided in a memberstate for more that 3 months for their residence to be in conformity with article 7.

Article 7 does not say that someone has to have been in amemberstate for more than 3 months to exercise treaty rights. It simply states that residence beyond 3 months has to conform with Article 7 for it to be in accordance with the directive.

The judgement also made clear that those who have secured PR in the host memberstates also qualify.

Case C‑456/12 (Case O & B) wrote:60 So far as concerns Mr O., who, according to the order for reference, holds a residence card as a family member of a Union citizen pursuant to Article 10 of Directive 2004/38, it should be borne in mind that Union law does not require the authorities of the Member State of which the Union citizen in question is a national to grant a derived right of residence to a third-country national who is a member of that citizen’s family because of the mere fact that, in the host Member State, that third-country national held a valid residence permit (see Eind, paragraph 26). A residence card issued on the basis of Article 10 of Directive 2004/38 has a declaratory, as opposed to a constitutive, character (see Case C‑325/09 Dias [2011] ECR I‑6387, paragraph 49).