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

rosebead wrote:Radconn, where did you post your appeal to? Perhaps that would be the place to write to? Were you given any reference or case i.d. number? If so, I would try writing to the appeals address with your reference number and ask for a reconsideration. No harm in trying.

I found this gov.uk link with info about reconsideration requests. The site says that reconsiderations can only be requested within the UK but I'd ignore all that, as I don't think it can apply to EEA Nationals, which in effect are what Surinder Singhers are.

The site says:

Send your request to the team who made the decision on your original application - the address will be shown on the decision letter.

I'm guessing this must be the appeals address, but I could be wrong.

I have written another letter now to the appeal tribunal. Quoting everything I can think of and laying it out as fully as possible.
There are no addresses on the refusal letter or points of contact.
So the only way is via the appeal system or apply again.
But thank you for your help.

People often mention appealing AND applying again...that sounds like a good move.
Make sure you address their points of concern in the new application - it might work!

Judgement in the case of OS will be out on the 12/03/2014.

Even more brilliant! Let's hope it defeats HO's regulations.

I just wanted to post this.
Today my wife received an email stating that the refusal decision had been reviewed and overturned by the Entry Clearance Manager.

So not sure if it was the last email I wrote to them or the appeal itself. But whichever, my wife can now send her passport to Dublin and they will forward it to London for her to get the visa.

So thank you to everyone that took the time to reply and offer their advice to my questions, I am very grateful to each of you.

I might be back in the next 6 months for advice for the EEA 2 so please don't go any where.

Congratulations Radconn!

Radconn, great news! Glad you got it sorted, congrats

Guys
Judgement in the case (C-456/12) is out, can someone explain what does it mean?

Article 21(1) TFEU must be interpreted as meaning that where a Union citizen has created or strengthened a family life with a third‑country national during genuine residence, pursuant to and in conformity with the conditions set out in Article 7(1) and (2) and Article 16(1) and (2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, in a Member State other than that of which he is a national, the provisions of that directive apply by analogy where that Union citizen returns, with the family member in question, to his Member State of origin. Therefore, the conditions for granting a derived right of residence to a third‑country national who is a family member of that Union citizen, in the latter’s Member State of origin, should not, in principle, be more strict than those provided for by that directive for the grant of a derived right of residence to a third‑country national who is a family member of a Union citizen who 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.

Thanks

Can you post full link?

http://curia.europa.eu/juris/document/d ... cid=139867

Here is the link now let us all digest.

There isn't much of a breakthrough here in my understanding, this will be easy for countries such as Denmark to apply a restrictive measures to it's implementation, and the UKBA will quickly do a photocopy of that, will wait for Obie's expert opinion.

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.

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.

How this will effect new SS rules introduced by UKBA? will this judgement make those changes invalid?

Case C‑456/12 (Case O & B):
http://eur-lex.europa.eu/LexUriServ/Lex ... 56:EN:HTML

And Case C‑457/12 (Case S & G):
http://eur-lex.europa.eu/LexUriServ/Lex ... 57:EN:HTML


My initial take on it is that it's probably not the best result for frontier workers (Cases S & G), in that their Member State of origin retains the right to decide whether frontier workers can keep their family members with them in their country of origin. This would be based upon whether that Member State THINKS the frontier worker would be deterred from exercising his treaty rights if his family members were prevented from residing with him. Frontier workers have not been definitively given family reunification rights by the ECJ.

As regards to those doing Surinder Singh under the new 'centre of life' rules, my take on Cases O & B is that it's ok news for returning citizens, in that their rights to family reunification should not be assessed under criteria more harsh than those for EEA nationals and family reunification in the host country. So if you conform to the conditions of Article 7 under Directive 2004/38 (also Article 16), that could be one criterion met for a right of return with family members. Paragraph 50 seems to back this up:

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.

To trigger the right of return with your family members, residence in the host country has to be "sufficiently genuine so as to enable that citizen to create or strengthen family life in that Member State." However, "residence in the host Member State pursuant to and in conformity with the conditions set out in Article 7(1) of Directive 2004/38 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."


I don't like the sound of paragraph 58 though:

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).

Is the above implying that using the Surinder Singh route to avoid national immigration laws is an "abuse" (if it can be proven) and so applications could be disregarded? I thought Akrich established that motive is irrelevant as long as the economic activity has been genuine and effective.


The other thing which doesn't appear favourable is that the Union citizen has to "create or strengthen a family life with a third‑country national during genuine residence" in the host country. The ECJ judgement doesn't define what is involved in "creating or strengthening a family life." It's very open to interpretation, which no doubt Member States like the UK and Denmark will interpret very narrowly.

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: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.

In a nutshell, because of this judgement UKBA can implement “Center of life” requirement legally.

Yes they can.

dalebutt wrote:Yes they can.

Dont think so. There is nothing in the judgement that gives them such power.

If you read parahraph 50 and 53, It is quite clear that UK cannot impose such measure.

Paragraph 58 is unclear, but it certainly does not impose cente of residence requirement.

Like Obie, I don't think it's all that bad. My reading of Case C‑456/12 is that you can establish 'genuine residence' just by exercising treaty rights (in accordance with Article 7). Also in principle, returning citizens should not be treated more harshly than citizens in a host country when it comes to family reunification rights. The big question mark for me though is what does "creating or strengthening a family life with a third‑country national" in the host country actually mean? That's too open to interpretation.

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.

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.

Let me relate this to our case to have some clarity. I am in Ireland with my Mum since Nov 2013, she is being issued RC with stamp 4EUFAM. My job contract is for 6 months ending 01/05/2014. I have been paying tax in Ireland about €1000 per month (prsi ,usc and paye). We moved together from UK. She have very clear UK immigration history. But my wife and kids are in the UK and they are unable to move to Ireland coz of school.
Now if my contract is not renewed and i have to return to UK what chance my Mum got under ss to obtain a RC.
i am just trying to find out how this judgement can relate to our circumstances.
Thanks

Touche! I do not seem to understand how member state would be able to determine genuine residence? I agree with both of you on the points raised, I also agree with obie's explanation of Create or strengthen I think it is quite clear in that respect. My main concern is this paragraph 57

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.

Does this not leave room for UKBA to determine the terms settled and genuinely resided? would that not support the centre of life claim?

Dalebutt, my reading of paragraph 57 is that yes it is for the courts to decide whether sponsors have established "genuine residence", however they cannot disregard points made in the ECJ judgment when making their decision, such as paragraph 53 which states that exercising treaty rights (under Article 7 of Directive 2004/38) is evidence of "genuine residence".

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.

Seems to me, that the court has to examine the case to see whether the conditions in 7 (1) or 16 (1) were established during the union citizens resident in another memberstate.

Whiles doing so, they have to watch out for any form of abuse.

It is settled law, that moving to a memberstate to enhance free movement rights, is not abuse, provided these rights were exercised in conformity with union law.

I believe an assessment of the could would be confine to assessing whether the resident fits the condition of 7(1) (2) or 16(1)(2), and to detect any form of abuse.

An example of abuse could be, the union citizen setting up a home in another memberstate. Get comprehensive sickness insurance, an money in account, but not living there at all.

This will be on its face, an artificial situation designed for the sole purpose of securing free movement rights. It will essentially amount to abuse, which the courts are task with enquiring about.

Obie, but the European Commission in their guidance for better transposition of Directive 2004/38/EC in 2009 did consider that using the Surinder Singh route solely to avoid national immigration laws is a form of "abuse". The Commission did however stress that if the exercise of Community rights was genuine and effective, EU citizens and their families are protected by Community law and it cannot be considered an abuse, and in that case the Member State of origin should not inquire into the personal motives that triggered the move to the host country. The problem though is that the UK jumped on the Commission's posit that using Surinder Singh case law for unintended purposes is an abuse, and accordingly drew up the "centre of life" regulations to prevent this "abuse" that the Commission talked about. So in light of paragraph 58 (below), can't the UK still assert "centre of life" rules to prevent the abuse referred to in that paragraph?

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).