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

[Obie]

Well if the Opinion of the Advocate general is adopted, it may well be the case that the rules imposed by the UK will be severely restricted, and even if they are lawful, will have no material difference to the rules that existed on the 31/12/2013.

[euroguys]

Well if the Opinion of the Advocate general is adopted, it may well be the case that the rules imposed by the UK will be severely restricted, and even if they are lawful, will have no material difference to the rules that existed on the 31/12/2013.

But in addition if what she says is adopted what I see is a new dirivitive right being created for non eea families of Brits who have already received residence cards in a host country to return to the UK without any economic activety needing to take place for example self sufficient or student No one has commented on this only residence would have to be established

"Reading this my initial take is good news for O if you have resided lawfully in a host state and been issued with a residence card then apon return to your own state you must be treated at least with equal treatment that you had in the host state.

So that could/would mean a derived right of residence for your family members (you might not benifit under eindt but to same level as any other EU national?? Comments?"

[Obie]

You are correct, but as that is not the issue on this thread, i did not feel it was necessary for me to elaborate on it.

I have already stated in the past, that Surinder Singh existed when there was no expressed right of Freemovement for non economically active person. But as new treaty came into place, the UK cannot restrict those rights to Economically active migrant worker, cases like D'Hoop, have made it clear that with the establishment of European Citizenship, such restrictions cannot be accepted.

We did not need advocate general Sharpston to tell us this. The UK did not need to either. The writings have always been on the wall.

[chaoclive]

So, is this 'non-economically active' requirement confirmed? Not sure that I get it...

[Jambo]

So, is this 'non-economically active' requirement confirmed? Not sure that I get it...

This was just an opinion. So it is not confirmed.

[Obie]

So, is this 'non-economically active' requirement confirmed? Not sure that I get it...

This was just an opinion. So it is not confirmed.

Correct. Although it is usually followed in many cases.


In the recent past I can remember Metock, Eind, were adoped opinion of Advocate general.

In Chen the court followed advocate Tizzano's opinion in its entirety.

[wiggsy]

All I can say is... we saw it coming... so did the home office... we do however knw the uk will implenent these I the most restrictive manner possible.

[vinny]

Some bad news to many. The Surinder Singh route is apparently being tightened by the UK from 1 Jan 14.

"Under the new regulations, the qualifying criteria which give effect to this judgment have been amended. The new rules state that in order for family members to benefit from the Singh provisions, the British citizen must have transferred the ‘centre of their life’ to another member state."

Whether this is legal is not is yet to be seen. It will frustrate many forum members sadly.

http://britcits.blogspot.co.uk/2013/12/ ... route.html
http://blogs.kent.ac.uk/eu-rights-clini ... ngh-route/

[Obie]

Surinder Singh route for family member of British Citizen

[rosebead]

Unless I've interpreted it wrongly, it seems that the UK can legitimately impose the new rule of "principal residence" according to this recent reply by the European Commission to a Danish citizen's petition:

http://www.europarl.europa.eu/meetdocs/ ... 3022en.pdf


Below are a couple of excerpts from the European Commission's reply to this petition which might lend credence to the new UK Surinder Singh rule about "principal residence":

When assessing whether a Union citizen has resided in a host Member State for a substantial period of time which grounds a right to be joined by family members on return to the home Member State, duration and continuity as well as the genuine and effective nature of the residence are important factors. A precise minimum period of time cannot be abstractly established, nor can a precise rule be established on permissible interruptions. As an indication, an uninterrupted stay of at least a year could be sufficient. It could be argued that a shorter period of residence (exceeding 3 months and being in compliance with Article 7 of the Directive) could suffice. In any event, it is for the national authorities to assess whether there has been an effective residence in the host Member State, in the light of all the relevant circumstances and factors of the case.

And:

In the Commission's view, the information on the 'New in Denmark' website does not show a breach of EU law in so far as it concerns the rights of Danish nationals to benefit from EU law on free movement of persons for the purpose of family re-unification as regards the genuine and effective exercise of free movement in another EU Member State or concerning Danish service providers in another Member State, or Danish jobseekers who return to Denmark.

Here is the Danish government's 'New in Denmark' website that was referred to in the above quote (in particular read the section about "genuine and effective residence"):

https://www.nyidanmark.dk/en-us/coming_ ... er_eu-law/


Of particular significance is this excerpt from the 'New in Denmark' website:

Is a Danish national working in another EU/EEA Member State or Switzerland, but having retained his/her residence in Denmark, entitled to family reunification under EU law?

A Danish national working in another EU Member State, but having retained his/her residence in Denmark, does not fall within the rules on freedom of movement and is accordingly not eligible for family reunification under EU law.

The Danish rules regarding principal residence in the EU, what they term as "genuine and effective residence", have been in effect since 2008.


These new UK Surinder Singh rules are particularly bad for people like me who are council tenants who may not be in position to give up their tenancies in the UK to go the Surinder Singh route . However the good news for homeowners (if the Danish government website is any good indicator) is that if you sublet your home, that would be proof that your residence is no longer in the UK.

[dalebutt]

It appears the UKBA legal team, and the entire staffs could not even interpret an EU law even if it fell on their collective heads, time and again they seem to copycat almost all of the Danish immigration rules, don't this lots have a brain of their own? I for one I'm sick to the back teeth of this EU commission, I wrote them a nasty letter demanding explanation of their almost useless guidelines, they replied saying they stand by it but accept that the guidelines isn't a law.

[357mag]

Can I make a suggestion to those doing the EEA route, change your driving licence when in your host country.
You are supposed to notify change of address anyway, but changing to host country might be useful evidence of residence.

[Obie]

The UK courts are bound by community law in its entirety. In circumstances where there is conflict between a provision of community law and a national legislative provision, UK courts and tribunals, are required and indeed bound by community law, to completely disregard the national provision, and give effect to the rights which community law grants to the individual.

A court in the UK, which fails to have regards to ECJ ruling, however high it is, will be an unlawful entity.

[Obie]

There are some important CJEU judgements which point to the illegality of the UK new requirement under regulation 9(3), if it is to be applied in the restrictive way and manner i presume the legislator intended.

See Swaddling
This indicates that time cannot be imposed on the length of time a person should reside in a state for them to be considered as resident there.

Also see paragraph 19 of Di Paolo

[chaoclive]

Many people know that the new regulations are more restrictive than the directive permits. The question is: what can we do about them right now? Or do we have to wait until people start to be rejected and take them to court?

[dalebutt]

We have to wait, one cannot take legal action about a policy if they have not been affected by it.

Obie thanks for those lovely links.

[chaoclive]

I meant: Should we be contacting the European Commission/Solvit or whoever else?

[dalebutt]

You might like to know that the commission sort of like gave this direction that HO is taking, absolutely pointless contacting the lot over these changes, I have written to the commission twice and they seems to agree with HO's position.

I thought about the Ombudsman, I just would not imagine how useless they might be, and I just gave up on them all. If anyone is affected by this, the courts are the only resort

[dalebutt]

The judgement of Steven Malcolm Brown V the secretary of state for Scotland the court defines a worker.

A worker is a person who pursues an activity which is effective and genuine, with the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary. The essential characteristic of the employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he/she receives remuneration. Union law does not impose any additional conditions for a person to be a worker. Member States cannot unilaterally make the grant of social advantages, as mentioned in Union law, conditional upon the completion of a given period of occupational activity. The CJEU has always said the matter for defining who a worker is a matter for the CJEU and not for the member state.

http://eur-lex.europa.eu/LexUriServ/Lex ... 97:EN:HTML

[Nimitta]

It is good to see that other member states' article 10 residence cards will be accepted in lieu of visa (no mention of article 20 cards though).

I understand, it does not apply to Article 12 either...

[rosebead]

I wrote to Your Europe recently about the new Surinder Singh rules and I thought I'd post my email here and their subsequent reply, as it might be a useful analysis of things.


My email to Your Europe:-

I read the following text recently on the EU Rights Clinic website (blogs.kent.ac.uk/eu-rights-clinic) about new UK rules regarding family reunification under Surinder Singh:

"On 3 December 2013, the UK government adopted the Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2013 (SI No 3032) which amend Regulation 9 of the Immigration (EEA) Regulations. The new rules take effect on 1 January 2014.

From that date, it will now be a new requirement for those using the Surinder Singh route that 'the centre of [the British citizen]’s life has transferred to the EEA State where [the British citizen] resided as a worker or self-employed person.'

According to regulation 9(3), 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;

(b) the location of [the person]’s principal residence;

(c) the degree of integration of [the person] in the EEA State.”

In the above quoted text it is not clearly defined what the UK government means by 'centre of life" being transferred to the EU host state, can you define this for me with detailed examples, and can the UK legally stipulate such a condition in line with Surinder Singh case law? Can the UK for example legally reject a family reunification application under Surinder Singh because the returning UK national had kept his home in the UK while he was away working in the EU and because it might be deemed that keeping one's home in the UK means that one's 'centre of life' is still in the UK?

Take my example, I am a UK citizen and I wish to take up a job offer in Slovenia in January and work there for maybe 3-6 months. I plan to take my non-EU spouse with me to Slovenia which is my right under EU law as I will be exercising my EU treaty rights. Obviously I will be renting an apartment in Slovenia in both our names while I am there. I am a social housing tenant in the UK and while I am away in Slovenia I will be concurrently paying the rent and council tax on my social housing apartment in the UK, as I wish to keep my home for when I eventually return to the UK. After I have finished my employment in Slovenia I wish to come back to the UK with my spouse, which under Surinder Singh case law I am supposed to have the right to do, bearing in mind that under Akrich case law it is also irrelevant the motive that I have for working in the EU as long as the economic activity is genuine and effective.

Under EU law, can the UK government legally reject my application for family reunification because I maintained my social housing apartment in the UK, and because I only worked for a short period in Slovenia? And if the UK can legally reject my application, doesn't that constitute discrimination on the grounds of nationality, which is prohibited by the EC Treaty, as EU citizens from countries other than the UK do not have to prove their habitual residence in the UK for the right to have their third country family members live with them in the UK?

Wouldn't the new UK rules also go against Surinder Singh case law? The thinking behind the Surinder Singh ruling as explained by the European Court of Justice is that a European citizen might be deterred from leaving his country of origin in order to work in another EU country if, on returning to his home country, his spouse and children were not also permitted to enter and reside in the citizen’s country of origin under the same conditions that apply to an EU citizen going to live in an EU country other than his home country. However, if the UK insists that habitual residence must be established in the host EU country in order that the UK national could apply for family reunification upon return, then the UK national could be deterred from leaving the UK to work in another EU country if he had to give up his home in the UK to ensure that his family members could accompany him back to the UK when he returns.

There is no EU law that states that a worker cannot have two homes, one in his home country and one in his host country, in order to exercise his treaty rights and to have his non-EU family members accompany him. Besides, the right to freedom of movement within the EU (including family members) hinges on whether the EU citizen is undertaking genuine and effective work in his host country, and not whether he is habitually resident in that country. So the question I ask is, if the UK rejects my application for family reunification in the UK, would I have grounds to take my case to the European Court of Justice because it contravenes EU treaty rights?

Their reply:-

Thank you for contacting Your Europe Advice.

The very recent changes made to regulation 9 of the Immigration (EEA) Regulations have not yet been the subject of more in-depth guidance from the Home Office.

It is therefore very difficult at this stage to determine if this new requirement to demonstrate a change in the centre of your life would require you to give up your accommodation in the UK.

While a strict interpretation of regulation 9 as amended could lead the Home Office to require British citizens working in another Member State to give up any accommodation they may have in the UK, the recent Opinion by the Advocate General in Cases C-456/12 and C-457/12 suggests that this might constitute an undue restriction on the free movement of such British citizens:
http://eur-lex.europa.eu/LexUriServ/Lex ... 56:EN:HTML

In the Opinion, AG Sharpston made the following observations:
102. I do not think that residence requires constant physical presence in the territory of a single Member State (the third question asked in Case C 456/12). Otherwise, one could be found to be resident in a Member State only if one had not exercised the right to freedom of movement (by definition, prior to moving, one would have lived somewhere else). It might reasonably, however, require a preponderance of presence.
103. Nor do I think that whether an EU citizen has taken up residence in another Member State turns on whether that is his sole place of residence. In many cases, exercise of the right to reside freely in the European Union will involve moving residence from one Member State to another, without keeping any meaningful connection with the former place of residence. In other cases, however, it will be expedient for various reasons to maintain significant ties.
104. Provided that EU citizens satisfy the test for establishing residence in a Member State, it should not matter that they might keep some form of residence elsewhere. There is no general rule of EU law whereby residence in one Member State precludes concurrent residence in another Member State. ….
Indeed, in Case 76/76 Di Paolo [1977] ECR 315, the Court of Justice indicated that it is possible to be considered resident in more than one EU country at a time. In this case, the Court ruled that In fact, whenever a worker has a stable employment in a Member State there is a presumption that he resides there, even if he has left his family in another state

Assuming that the Court of Justice hands down a judgment that follows this Opinion (which the Court is not obliged to do), if you were to move with your spouse to Slovenia while retaining accommodation in the UK, we consider that the UK authorities would not be able legitimately to refuse your spouse the right to return home with you to the UK. However, this Opinion is not binding on the Court and the final decision in this case is not expected until next year. When the Court does issue its final judgment, it will be posted at this link (this link is not currently active):
http://eur-lex.europa.eu/LexUriServ/Lex ... 56:EN:HTML

In the event that the Home Office were to refuse your application, you would have a right to appeal the decision to the First-Tier Tribunal. This would then enable you to request the Tribunal to refer the question whether the new regulation 9 breaches EU law to the EU Court of Justice. However, you would not have a right to bring proceedings directly before the EU Court. You can only do so by first lodging proceedings before the UK courts.

At this stage we recommend that you proceed with your plans to move to Slovenia and arrange for your spouse to join you there.
He will have to live there with you during the time you work. We invite you to submit a new enquiry when the final judgment is handed down in Cases C-456/12 and C-457/12.

We hope this answers your query.

[Obie]

Well few things to note.

1. The commission is meant to be the guardian of the treaty and not the interpreter of the Treaty. Interpretation of the treaty provision is primarily the duty of the CJEU.

2. The current views that the UK is seeking to adopt, does have a bit of blessing from the European Commission, albeit not in the extreme way proposed in regulation 9(3). In their written submission in the current case, they support those views.

3. Advocate General Sharpston seem to have rejected those views and hopefully the court will also.

4. The Commission should consider a written warning to the UK, not border what the First Tier Tribunal might do.

The UK courts, in most case, tends to delay making reference, until countless people have been affected. Look in the case of OFM in article 3(2) and Regulation 8(2), it took several years before they made a reference, and the courts views on the qualifying criteria, was far different from the one taken by the UK courts in cases like Bigia and KJ.

If the courts do their job properly, they will ignore regulation 9(3) entirely, and give proper effects to the rights that community law confer on Citizens of the Union.
In so doing, their focus will be on whether or not the person exercised effective and genuine work, rather than whether or not they have another home in their home memberstate.

[dalebutt]

Well few things to note.

2. The current views that the UK is seeking to adopt, does have a bit of blessing from the Tribunal, albeit not in the extreme way proposed in regulation 9(3). In their written submission in the current case, they support those views.

Obie have you got any case ref with regards the above? I would like to study it. Thank you.

[Obie]

I wish to retract my statement, that the current view of the UK, has the blessings of the tribunal, i was meaning to say the European Commission. In Paragraph 4(3), they seem to list indicitive factors that memberstates could take into consideration, but it never went as far as the proposal that the UK is seeking to adopt in 4 days.

http://eur-lex.europa.eu/LexUriServ/Lex ... 313:EN:NOT

[MPH80]

Having read through all this - I'm not sure that the opinion offered by Sharpston and what UKBA are implementing are that different.

Sharpston says that it's not necessary to give up your home in your national member state ... well ... UKBA aren't asking that. The UKBA new rules say they are going to look at place of principal residence ... but they don't say what criteria make it your principal residence.

I know of many people who have made their principal residence another country, but retained a residence in their original country. The thing is they've bought furniture ... cars ... done tax returns etc - they've clearly relocated.

Neither do the UKBA rules imply any kind of time limit on how long someone must have been in a host member state before relocating - but it's clearly impossibly to make a country your principal residence if you are only there 2 weeks! Sharpston even agrees that time in a country is a factor in deciding where your habitual residence is - but that you can't set an arbitrary limit.

It'll be interesting to see where it goes - but the opinion and the UKBA published rules don't seem far apart to me.

All personal opinion of course.