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

Obie wrote: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.

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

Jambo wrote:

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

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

Latintraveller wrote: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/

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.

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.

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.

EUsmileWEallsmile wrote: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 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?

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 wrote: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.