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

[Obie]

Further analysis of Surinder Singh following O S .

Supports my view on the Centre of life test and the extension of Surinder Singh to cover people who had exercise treaty rights in a non-economic capacity.

People who have received refusal on the basis of centre of life test, could rely on direct effect of the CJEU judgement in court.

[357mag]

To recap, the requirements are:
•At least three months residence in another EU member state
•Creating or strengthening family life during that time (living together ought to count)

Thats nice to see, so its possible to arrange and get married in 3 months in Ireland then come back because of point 2. I've been fearing trying to get hitched in a UK registry office in case my girl is detained and deported so this looks like it might help me and hopefully others.

[chaoclive]

Does this mean we really have a definitive time for Surinder Singh?! Wow...

If this judgement had been released a few months ago, I wouldn't have renounced BritCit.

[357mag]

Wow, I just read through the whole case. So it totally does away with SS requirements? You can move freely between states for periods of up to 3 months, and if you create or strengthen a relationship your partner can return to home state with you, is how I read it.

Ah the sting in the tail seems to be "genuine residence" which is what UKBA frame their rules around.

[357mag]

Been trying to get my hear round this, now this new case throws up some questions. So the EEA person is not exercising treaty rights as a worker if they are returning to home state having created or strengthened a relationship, therefore EEA2 for is no longer relevant. How does the partner prove allowed to work then? How does the partner even get on the plane?

[rosebead]

Thank you, Obie, for posting Colin Yeo's analysis, it was really useful. Your previous analysis was dead-on i.e. that residence under Article 7 together with your spouse was sufficient to trigger a right of return under Surinder Singh. I had thought similar to you apart from the "create or strengthen family life" bit which I wasn't sure about, but it simply means that your spouse is with you in the EU, as you and Colin Yeo had mentioned.


I wrote Your Europe and got a reply (below) that furthermore confirms that the UK's 'centre of life' requirements run contrary to the recent case law of O & B.

Here is my letter to Your Europe:

A British citizen returning to the UK with his family members under Surinder Singh case law has to satisfy the UK requirement that the centre of his life had to have been transferred to the host EU State where he resided as a worker or self-employed person.

According to the UK’s Regulation 9(3) of Immigration (EEA)(Amendment)(No. 2) Regulations 2013 (SI No 3032), the centre of a person’s life will be assessed by reference to:

(a) the period of residence in the EEA State as a worker or self-employed person;
(the longer the UK citizen has lived in the host State the more likely it is that he will have transferred the centre of his life)

(b) the location of the person’s principal residence;
(the UK citizen’s main home must be in the host State)

(c) the degree of integration of the person in the EEA State.
(the UK citizen may indicate integration in his host State by for example having relatives already there, learning the language, buying property, immersing himself in community life, or his child being born there or going to school there.

In summary, the UK requires British citizens to cut ties with the UK and move their entire life to the host State.

My understanding of the CJEU judgement in C-456/12 is that an EU citizen who has resided with his family member in his host State in accordance with Article 7 of Directive 2004/38 had ‘genuine residence’ in his host country, and therefore qualifies for a derived right of residence for his family member upon his return to his home State. Therefore the conditions for granting family reunification rights to a returning citizen should not be stricter than those provided for by Directive 2004/38 for a citizen in his host State exercising Treaty rights under Article 7. Am I correct in my understanding? If that is case, can the UK legally add further conditions such as its ‘centre of life’ requirements to test the British citizen’s genuine and effective use of Treaty rights outside of the remit of the ruling in C-456/12?

Here is Your Europe's reply:

As you correctly point out, the EU Court of Justice has recently adopted a judgment in Case C-456/12 O & B which casts doubt upon whether the UK s transfer of the centre of life test is lawful.

In this case, the Court indicated that the only conditions needed for a person to rely on the Surinder Singh case was
(1) genuine residence of an EU citizen in the member state; and
(2) during this residence the EU citizens created or strengthened his family life.

The Court recognised that the right to return home after exercising free movement in another Member State in accordance with the Surinder Singh ruling applies to an EU citizen who wishes to bring non-EU family members to their home Member State has to have previously exercised the right of residence in another Member State for 3 months or more.

The right to return home applies to all categories of EU citizen and is not limited to workers or the self-employed but covers students and self-sufficient persons (paras. 48-49);

This means 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).

Although the citizenship Directive does not apply as such to the situation of a citizen returning home to their country, it does apply by analogy as regards the family members of the EU citizen (para 50).

The Court then explicitly confirmed that, when an EU citizen returns home their family members will enjoy a derived right of residence based on Article 21(1) TFEU, the conditions under which that derived right is granted 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.

What this means is that the transfer of the centre of life test as added to regulation 9 of the Immigration (EEA) Regulations 2006 is not in line with the interpretation given to the Surinder Singh ruling given by the Court of Justice in Case C-456/12.

Taking in turn, the three components of the transfer of the centre of life test, we consider what effect the judgment has on them.

(a) the period of residence in the EEA State as a worker or self-employed person:
The Home Office can only request to see evidence of residence exceeding three months that satisfies the conditions of the Directive. Possession of a residence card provides a presumption that the conditions were met by the family member concerned because it is a document serving to prove the individual position of a national of another Member State with regard to provisions of European Union law (Case C-325/09 Dias). An EU citizen and family members who have obtained permanent residence after living in another EU country for 5 years or more must always be considered as having acquired the right to return home together (para 55)

(b) the location of the person s principal residence:
This is immaterial since there is not such condition under Directive 2004/38 for a person to have their principal or sole residence in a single Member State. Furthermore, there is existing case law that suggests a person could simultaneously be considered as established in two member states at the same time. Instead, the Court requires genuine residence, namely residence in another Member State of over three months that meets the conditions of Article 7 or Article 16 of Directive 2004/38 (para 56).

(c) the degree of integration of the person in the EEA State:
This is immaterial since there is not such condition under Directive 2004/38 for a person to have their principal or sole residence in a single Member State. Instead, residence in another EU member state must have been sufficiently genuine so as to enable the citizen to create or strengthen family life in that Member State (paras 51 and 54).

The UK authorities are under a duty to give effect to judgments of the Court of Justice of the European Union. We therefore consider that regulation 9 of the Immigration (EEA) Regulations 2006 as amended in 2013 should be amended again to repeal two conditions: (1) that the citizen must have worked or been self-employed in another EEA state and (2) that the citizen must have transferred the centre of his life to that state.

We hope this answers your query.

[Obie]

Thanks Rose for postion your question and reply.

I dont think there was noticeable difference between our views to be honest save for few areas that were open to multiple interpretation if not read in context or as a whole judgement.

UK courts are bound by the judgement of the CJEU, disapplying national provision that are at variance with EU law. Therefore the EEA regulation to all intense and purpose is irrelevant to a final outcome.

[357mag]

Thanks Rose and Obie for keeping us informed.

the Court rules that where an EU citizen has, pursuant to and in conformity with the provisions of Directive 2004/38 relating to a right of residence for a period of longer than three months, created or strengthened a family life with a third-country national during genuine residence in a Member State other than that of which he is a national, the provisions of that directive apply by analogy where that EU citizen returns, with the family member in question, to his Member State of origin. - See more at: http://www.noodls.com/view/0602FD1C360F ... io0zG.dpuf

Again Genuine Residence seems the key factor. You can go to another state for up to 90 days no prob, but to stay longer you need to satisfy the conditions to apply for longer. The EEA citizen can do it under self sufficiency and have partner move over later when getting nearer to date of marriage.

[logical_1]

So according to new judgement can a person exercise treaty rights by being self sufficient or student to benefit from surinder singh?

[357mag]

Going by the rules as clarified, yes.
Nobody has done it yet and the first person to try is likely to be refused so an appeal would most likely be needed.

But its no longer the Surinder Singh route, its now EEA partner exercising rights under 21(1) TFEU and spouse joining under C-456/12. We need a better title, maybe it should be the "O" route.

[Obie]

It is still Surinder Singh route.

It is simply the fact that the law during the days of Surinder Singh, did not extend free movement rights to non economically active person. As the treaty changed, so should the application of Surinder Singh.

Unfortunately, the UK did not accept thisvapproach and continued the narrow interpretation.

I posited on other thread that the UK had to change the scope of regulation 9, that it is only s matter of time, before it will be forced to do so by the CJEU.

This moment has indeed come to past.

[st2447]

I arrived in Ireland in February with my Pakistani Spouse, Im going to make a EEA Family Permit application next month. Any advice on what I should include in my covering letter regarding the new case?

I have made a FOI request https://www.whatdotheyknow.com/request/ ... and_eu_cas , I should have more info on if the Home Office has started to take case C‑456/12 into account on when they reply.

I emailed european case work with the question

"If my spouse applies for a EEA Family Permit, Would the Home Office take into account the judgement by the EU Court of Justice dated 12 March 2014 in the case of O. and B.
Case C-456/12
http://curia.europa.eu/juris/document/d ... cid=472854

The judgement appears to override the new amendments to regulation 9 namely the 'center of life' test the Home Office applies to Singh cases. I have also linked to a post giving Europa's view

http://www.immigrationboards.com/eea-ro ... l#p1011787

Thanks for your time."

their reply was simply "All relevant matters are taken into account."

[Obie]

In light of O B i strongly believe your application is doomed to fail.

[Obie]

ILPA guidance on extension of Surinder Singh.

[vinny]

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?

[st2447]

In light of O B i strongly believe your application is doomed to fail.

I'm currently working in Ireland, at the date of my applications I would have been here a little over 3 months, do you think my application will fail due to 'abuse' or any other reason?

[Obie]

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?

Vinny i must say i am unable to argue with you on that. The fact speaks for itself. I must say that i am shocked by these number, given the increasing restrictiveness of the rules, i would have thought more people will be inclined to explore this avenue.

It is noteworthy that there are over 1.5 million Brits residing in other countries in the European Union. Therefore if 350 returned home, i can see no abuse, or justification for bringing in this 1st January changes.

[logical_1]

This is good news.
I just hope it's implemented by home office sooner rather than later.

[dalebutt]

Denmark! Denmark! Denamrk! What have you done? Now UKBA will follow suit and require 28 years before naturalised British citizen will gain the rights to bring their non EU family members to the UK.

[jinkazama_11]

Denmark! Denmark! Denamrk! What have you done? Now UKBA will follow suit and require 28 years before naturalised British citizen will gain the rights to bring their non EU family members to the UK.

@dalebutt - what you on about?

[dalebutt]

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.

[rosebead]

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.

[rosebead]

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)

[rosebead]

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

[Obie]

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.