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

New European Court of Human Rights case on family life

Also on the topic of family life, the European Court of Human rights has addressed the issue this month in a case called Biao v Denmark (App no. 38590/10). The Court considered a Danish law which requires naturalised Danish citizens (as distinct from citizens by birth) to hold their citizenship for 28 years before gaining the right to bring non-EEA family members to reside with them in Denmark. The Court narrowly held (by four votes to three) that this does not constitute unlawful discrimination contract to Article 14 ECHR and found no breach of Article 8.

The information is from the link Obie had posted previosuly.

Dalebutt, that is absolutely shocking that the ECHR by a tiny margin should effectively rule that a non-naturalised Danish national cannot marry a non-EU national. Denmark has an absolutely draconian domestic rule that only Danish nationals who have had Danish citizenship for 28 years can be eligible to apply for family reunification with a non-EU spouse. This also means that even if you are a Danish national by birth, you cannot marry a non-EU national until you are 28. 28 seems like such an arbitary figure plucked out of thin air - why not 16 or 21 or some other figure! I am shocked by the ECHR's decision, which to me seems to support a very dearly beloved policy in Denmark. Basically if you are ethnic in Denmark, forget about fallling in love with someone abroad. The couple in the case now live in Sweden because I guess they are forced to, so at least freedom of movement laws means that national laws cannot apply here, thankfully. Maybe the couple should try returning under Surinder Singh case law lol since they've lived in Sweden long enough now.

vinny wrote:

Information Sheet: EU Free Movement: 'Surinder Singh' cases wrote:Is there a problem with ‘abuse’?
The Explanatory Memorandum to the Statutory Instrument introducing the new EEA
Regulations 4 states that one of the reasons for the change is “preventing abuse by those
British citizens who move temporarily to another member State in order to circumvent the
requirements of the usual immigration rules for their family members upon return to the
UK”. However a Home Office study in 2012 found no evidence of such ‘abuse’ in the UK 5 ,
noting that there were only c. 350 ‘Surinder Singh’ applications in each of the preceding
years 2010 and 2011.

It seems like the Home Office is doing the abusing?

Lol, yes the Home Office is doing the abusing considering the numbers of SS applications each year are so low.


The new ‘O v Netherlands’ case doesn’t define precisely what constitutes abuse. However, the European Commission in its Com (2009) 313 final did define what is NOT abuse:

There is no abuse where EU citizens and their family members obtain a right of residence under Community law in a Member State other than that of the EU citizen’s nationality as they are benefiting from an advantage inherent in the exercise of the right of free movement protected by the Treaty (ref A), regardless of the purpose of their move to that State (ref B).

The Commission’s references for the above quote were:

ref A: Cases C-212/97 Centros (para 27) and C-147/03 Commission v Austria (paras 67-68)
ref B: Cases C-109/01 Akrich (para 55) and C-1/05 Jia (para 31)

Sorry, a typo two posts above - non-naturalised should be "naturalised". Wish there was an edit function.

I think there is a lot of problem with Denmark. This 28 years rule will not even be in accordance with Union law, as it will essentially be requiring a Dane to move to a 3rd country in order to live with wife and children, with whom he is unable to establish a family life until after 28years.

Very depressing. You can see the uneasiness among the dissenter.

This decision make the whole rationale behind family live laughable.

I will try not to deviate from our topic, but this is truly crazy.

Some statistics.

Reading through C-456/12 for the umpteenth time and this bothers me,
2. “family member” means:

(a) the spouse;

So its not possible to use it for kids or DR partners?

357mag, yes the definitions of what constitutes a 'family member' in Directive 2004/38 still stands. Look carefully at the wording in the relevant paragraph (see below) and you will notice that there is an ellipsis [ ... ] at the bottom of this paragraph. This denotes that the paragraph has been shortened, probably for reasons of tidiness because to include every single sentence of the Directive in C-456/12 would make it a very lengthy document indeed. By the way, in Directive 2004/38, only spouses, direct descendants and direct ascendants have automatic rights to accompany or join a sponsor. Entry of durable partners however is not automatic and is at the discretion of individual Member States.

Under the heading ‘Definitions’, Article 2 of that directive provides:

‘For the purposes of this Directive:

1. “Union citizen” means any person having the nationality of a Member State;

2. “family member” means:

(a) the spouse;

…

Yes. Their entry is not automatic, but subject to an extensive examination of personal circumstances and justification of any refusal of entry or residence to those individuals.

I wrote to Your Europe with further questions about Case C-456/12. Here is the Q & A:


QUESTION 1. Please define what 'created or strengthened a family life' exactly means. Does 'created or strengthened a family life' simply mean that you have lived with your family member in the host State, or does it have the same meaning as transferring centre of life to the host State in the UK s EEA regulations?

The phrase created or strengthened a family life was not further explained by the EU Court of Justice.

We consider this to be a factual situation in which, during residence in another Member State, the EU citizen has created family life with a non-EU national (e.g. gets married to a non-EU citizen) or strengthens family life with a non-EU national (e.g. is joined by his non-EU spouse and starts cohabiting).

The phrase created or strengthened a family life does not in any way correspond to the transfer of the centre of life test.

In case C-456/12, the Court did not adopt the transfer of the centre of life or transfer of habitual residence as had been proposed by the Advocate General.

QUESTION 2. Is 3 months' residence with your family member in a host State in accordance with Article 7 of Directive 2004/38 legally sufficient to invoke family reunification rights upon return to the home State?

In Case C-456/12, the Court of Justice ruled that, during their stay in another EU country, an EU citizen and their family member must meet the conditions under Article 7 of Directive 2004/38 (residence over three months) or Article 16 (permanent residence) (para 56).

Therefore residence of three months is not sufficient, since the right of residence for a period of residence of up to three months falls under Article 6.

What is required is residence of OVER three months that meets the conditions of Article 7. This means that an EU citizen must (1) be working as an employee or self-employed capacity or (2) be studying or (2) be living as a self-sufficient person which means they must have sufficient resources for them and their family members not to be a burden on the country's social assistance system and they and their family member must have comprehensive sickness insurance cover.

We recommend that the EU citizen and their family member stay for over six months or until such time as the EU citizen s family member has been issued a residence card under Article 10 of the Directive, which can then be used as proof that the conditions of Article 7 were met.

QUESTION 3. Does paragraph 58 of Case C-456/12 give Member States legal leeway to devise laws - such as the UK 'centre of life' regulation - to prevent the abuse of Community rights, which in this case would be the use of Surinder Singh case law solely to evade national law to achieve family reunification?

In Case C-456/12, the Court of Justice ruled (para 58) that:
"the scope of Union law cannot be extended to cover abuses… 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".

However, we consider that moving to another EU Member State for the purposes of family reunification would not normally be considered as consisting in abuse of EU law for the purposes of Article 35 of Directive 2004/38.

The EU Court of Justice has consistently held that the motives which may have prompted a citizen to move to another member state are irrelevant for the purposes of determining whether a person benefits from EU rights to free movement (see Levin Case 53/81 at para 23; Akrich Case C-109/01 at para 54, L.N. Case C-46/12 at para 47).

What matters for the purposes of EU law is that the EU citizen is engaged in genuine and effective activity employment activities when he is living in another EU member state and is therefore considered as a worker for the purposes of Article 45 of the Treaty on the Functioning of the EU.

Under Article 45 TFEU, the status of worker applies to any person who for a certain period of time performs services for the benefit and under the direction of another person in return for remuneration, provided that these activities are genuine and effective, rather than being on such a small scale as to be considered merely marginal and ancillary (Levin case C-53/81 [1982] ECR 1035 at para 17 and Meeusen Case C-337/97 [1999] ECR I-3289 at para 13).

Once the EU citizen has demonstrated that he or she has engaged in genuine and effective economic activity in another EU member state, the EU Court of Justice has confirmed that the motives which may have prompted a worker of a Member State to seek employment in another Member State are of no account and must not be taken into consideration (L.N. Case C-46/12 at para 47).

In a separate case, the EU Court has also held that: "Nor are such motives relevant in assessing the legal situation of the couple at the time of their return to the Member State of which the worker is a national. Such conduct cannot constitute an abuse within the meaning of paragraph 24 of the Singh judgment even if the spouse did not, at the time when the couple installed itself in another Member State, have a right to remain in the Member State of which the worker is a national". (Akrich Case C-109/01 at para 56).

The Court then went on to further explain that recourse to the EU rules on free movement does amount to an abuse in circumstances where an EU citizen and their spouse have entered into a marriage or partnership of convenience:
Conversely, there would be an abuse if the facilities afforded by [EU] law in favour of migrant workers and their spouses were invoked in the context of marriages of convenience entered into in order to circumvent the provisions relating to entry and residence of nationals of non-Member States. (Akrich Case C-109/01 at para 57).

Based on the above, we do not consider it would be legitimate for the UK authorities to maintain the transfer of centre of life test in regulation 9 of the Immigration (EEA) Regulations 2006 as amended in 2013.

Thank you Rose.
I see under question 3 they answer:-
What matters for the purposes of EU law is that the EU citizen is engaged in genuine and effective activity employment activities when he is living in another EU member state and is therefore considered as a worker for the purposes of Article 45 of the Treaty on the Functioning of the EU.

But reading C-456/12 it says can be student or self-sufficient. So maybe the answer is not quite correct?

357mag, indeed Case C-456/12 does include students and those self-sufficient. In Question 3, I think Your Europe only mentions 'workers' and 'genuine economic activity' because it is in relation to what constitutes 'abuse' of Community rights in the case laws they cited (Akrich, Levin, etc). Thus you are protected from accusations of abuse (i.e. using SS solely to evade national law) if you are working or engaged in a genuine and effective economic activity according to case law.

I would also add that merely taking advantage of Union rights of free movement does not constitute abuse (Centros C-212/97 para 27), whatever the motive (Akrich C-109/01 para 55).

This is very interesting indeed.

I've always wondered: is there any guidance on what constitutes a 'student' in terms of the Directive/related cases? There has been a lot of discussion around the description of a 'worker' but I've not seen much about students.

What if I were to travel to Spain to take a one-semester spoken Spanish course? Do you think I'd be seen as a 'student' who could benefit under the Directive (provided that other conditions were fulfilled, e.g. medical insurance etc) and then qualify for a right to return to the UK under Surinder Singh?

Thanks a lot!
C

I have been in further communication with the Home Office and they confirmed they will ignore case C-456/12 in an application for a EEA Family Permit and EEA2 in regards to the 'centre of life' test

here is the communication below

me-
Dear Home Office
I am enquiring regarding the legality of entering the UK from Ireland WITHOUT a EEA family permit from Dublin to Holyhead.

I am a British Citizen exercising his treaty rights in the ROI. If I were to return to the UK together on ferry under Directive 2004/38, would we be required to present ourselves to an UK immigration officer?

reply-
Thank you for your email of 2nd March about entry to the UK via the Republic of Ireland by the family member of a British citizen exercising Treaty rights in Ireland. I apologise for the delay in responding to you.


The Republic of Ireland, along with the UK, Channel Islands and Isle of Man, forms part of the common travel area (as defined by section 1(3) of the Immigration Act 1971). Travel within the common travel area is not generally subject to control under the 1971 Act. However, this is subject to certain exceptions set out in section 9 of the 1971 Act and Article 3 of the Immigration (Control of Entry through Ireland) Order 1972. An examination by a Border Force officer may therefore be appropriate to establish whether the passenger is subject to one of those exceptions. Furthermore, paragraph 2 of Schedule 2 to the 1971 Act gives an immigration officer the power to examine a passenger to determine whether they are a British citizen and, if not, whether they require leave to enter the UK.

Further information on the common travel area can be found in Chapter 1, Section 2 of the Immigration Directorates’ Instructions, available via the following link:

https://www.gov.uk/government/publicati ... plications

Therefore, it is possible that you and your family members may be subject to examination by a Border Force officer on arrival in the UK. If this is the case, your (non-EEA) family member would have to prove that they qualify for entry under Directive 2004/38/EC and the Immigration (European Economic Area) Regulations 2006 (as amended) (‘the EEA Regulations’).


For this reason, if you have any non-EEA family members travelling with you, they may wish to consider applying for an EEA family permit before travelling to the UK, as this will make it easier for them to evidence their right of entry (if they have such a right). However, it is not mandatory. Both the Directive and the EEA Regulations are clear that entry to an EEA Member State cannot be refused solely on the grounds of not holding a valid visa or EEA family permit – the officer must give the passenger “every reasonable opportunity to….prove by other means that they are covered by the right of free movement and residence” (see Article 5(4) of the Directive, which is given effect in UK law by reg 11(4) of the EEA Regulations).


If the passenger is the family member of a British citizen, the officer would also consider whether the requirements of regulation 9 of the EEA Regulations (which gives effect to the ‘Surinder Singh’ judgment) are met. The version of regulation 9 in force from 1 January 2014 can be found at the following link:

http://www.legislation.gov.uk/uksi/2013 ... aph/5/made.


I hope this has answered your query but if you require any further clarification, please do not hesitate to get in touch.


Kind regards,

European Operational Policy Team

me-
Thanks for your reply

Could you clarify whether paragraph 3 of the regulation 9, namely transference of 'centre of life' still will be considered by the border force officer in light of the ECJ ruling of 12 March case C‑456/12 linked below

http://curia.europa.eu/juris/document/d ... cid=472854



reply-
I can confirm that, notwithstanding the judgment to which you have linked below, decision makers (including border officers) will continue to apply the ‘centre of life’ test in Surinder Singh cases.

chaoclive, the Citizenship Directive simply says you need only be enrolled at an establishment that is accredited or financed by the Member State if you want to exercise your treaty rights as a student. However I'd strongly recommend to anyone to carry on following the UK's Immmigration (EEA) Regulations 2006 (as amended on 2013) if possible, because Home Office caseworkers will very likely reject any application based upon Case C-456/12 as they will still follow UK guidelines, even though those guidelines are contrary to EU law. If your EEA Family Permit application is rejected, expect to be waiting up to 6 months out-of-country for your appeal to get to court. Immigration judges will overrule any Home Office rejections based upon 'centre of life' regulations if they do their job properly and apply EU law as they're supposed to. But waiting out-of-country for your appeal might not be fun. However if your family member is a non-visa national, I would say go for it and apply for an EEA2 in-country based upon C-456/12 and stuff the centre of life rules - at least you can wait in-country for an appeal.

st2447, thank you for posting your Home Office reply. It looks like you can get away with travelling through the Common Travel Area into the UK with your family member as long as you don't encounter a border guard. The Home Office hasn't said it's illegal after all. Yes I'm afraid Home Offfice caseworkers and ECOs will still be following UK guidelines until the UK amends its EEA regulations - it's disgusting that the Home Office will ignore C-456/12 as that is the correct law and not the UK's EEA regs.

Thanks a lot rosebead! :)

Am just a bit confused: if the family member successfully enters UK from common travel area, does it mean he/she does not need to apply for EEA family permit? If so, will they face the same problem when applying for EEA2?

My parent-in-law has a visiting visa to UK. If he travels to UK from one of the common travel area, does it mean he can get EEA2 directly if my husband works in Ireland?

Is you husband the Brit? I presume his father is non-EU, otherwise he would not need either FP or EEA2. Your father-in-law lives with your husband in Ireland, right? Your father-in-law cannot go to the UK alone and apply for EEA2 unless your husband is also back in the UK with him, if that is what you're saying. FPs are entry visas and are strictly out-of-country applications, so you can't apply for one within the UK. EEA2 is a residence card and is what your family member applies for when he is in-country and he does not need a FP to do that. An application for EEA2 is near enough the same procedure as FP, so you will still have to jump the same hoops as you do for the FP. However, the benefit of EEA2 is that if you get rejected, your appeal will be in-country, so you can wait in the UK. Appeals for both FP and EEA2 can take up to 6 months to reach court, which is no fun if you're out-of-country.

Many thanks for your kind reply, rosebead.

Yeah, my husband wants to use singh rule and will work at Ireland for some time to bring his elderly dad into UK, who has got a 5 years visiting visa for UK already. That is why I ask what is the difference between using this method to come to UK and travelling with ferry.

I just feel if we apply for EEA2 after entering UK, it would be even more difficult to prove the centre of life has been transferred, won't it?

irgsandy, it makes no difference to 'centre of life' whether your husband's father chooses to apply for a FP out-of-country or an EEA2 in-country - the test for centre of life will be the same. If you skip FP and apply for EEA2 in-country, but get rejected, at least you won't have to wait for your appeal out-of-country. And now with the recent CJEU ruling in Case 456/12 you stand a better chance of having rejections overturned. Even with centre of life rules, I've not read of one failed FP applicaton yet of a Brit who has lived and worked in their host country for 6 months or more; there have been a few who managed to get FP on even less. I'd say aim to do at least 4-6 months, the longer the better obviously.

I see! There is much convenience to apply in the country. It is inspiring to hear a few successful cases are observed.

Many thanks, Rosebead! By the way, are you a immigration lawyer because you are so professional?

irgsandy, no I'm not a specialist, just I do my research like a lot of people on this board. When I mentioned that I hadn't seen FP application failures for people having been abroad 6 months or more, even under centre of life rules, I meant those who had worked the entire time plus made sure they had good proofs that they were living in their host country with their family members, such as bills, tenancy agreements and joint bank accounts. Unfortunately you still will get occasional rejections based upon ridiculous issues such as accusations of convenience marriages, or inadequate amount of supporting documents submitted. Most of the time this is due to an Entry Clearance Officer being unfair or not bothering to check your documents properly. But you can ask for a reconsideration because of their error, or appeal plus make a fresh application at the same time and include further evidence and point out their error.

My question is related to FP as well.
I am working in Ireland since Nov 2013 and wants to go back to the UK in Jun/July 2014 after completing 7-8 months in Ireland. I just checked the new EEA2 form for RC. The section 5 (SS Case) got new question
Please note: if you entered the UK with a valid EEA family permit issued under
the Surinder Singh judgment as the family member of the British citizen named
in section 3, you do not need to complete this section. If this is the case, tick
the box to the right and then go to straight to section 10.
This means if my mum gets FP from UK embassy in Dublin we don't have to complete section 5 (avoiding question 5.8 and 5.9)of the application form and she will get UK RC as well. The only problem could be if FP is refused and they also cancel her visit visa, in that case we will be stuck in the Ireland for at least 6 months.
Now my questions are
1- We should go for family permit or go straight to UK and apply for RC?
2- If we decided to go for RC in the UK rather than FP how I should answer following questions in EE2 application form
a)- Question 5.8 (Page 18) - Give details of where you, British citizen and you family lived while British citizen was working in EEA state - My wife and kids are living in the UK, do I have tell them that or simply enter my and my mother details in there?
b)- 5.9 Details (Page 18) of any absences by you or the British citizen from the EEA Member State while you/they were resident there. - Do I have to complete this section? I am traveling to UK every fortnight, Can this go against us?

Thanks for your help guys

jinkazama, don't forget that the questions in the form are directed to the family member and not you. So Question 5.8 is asking about your mother's family (her children, etc) and not the British citizen's family. Regarding absences from Ireland, even in English law and certainly in EU law weekend trips away and holidays do not count as absences that would deem you as not being habitually resident in a country. Unless the absences were significant such as a month way I would not write anything, and how would they find out anyway unless you tell them. It is up to you to decide whether to apply for FP or EEA2 first - there are pluses and minuses for both. The plus side of EEA2 is that if you get rejected you can wait in-country for an appeal. The downside is that if you exhaust all appeals and lose then you may have to go back to Ireland and start all over again. With FP, the downside is obviously waiting out-of-country for any appeals, but then you could make a fresh FP application as many times as you like, so you could apply every month if you want to until you get an acceptance.

"how would they find out anyway unless you tell them"
Air flight and ferry trips keep a passenger log. I think it fair to assume these logs are available to the border forces. There is also ANPR logging traffic into and out of countries.
In todays surveilance society peoples movement is tracked, its one of the major functions of GCHQ.

If you use your bank card or mobile then the location of it is known.

You may think its just me being paranoid but it doesn't bother me that my whereabouts are known. I just accept that it is so.