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

Jambo wrote:It seems that the HO is really trying hard to make it difficult for British citizens to bring non EEA family members to the country.

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.

Case C‑456/12 (Case O & B) wrote:60 So far as concerns Mr O., who, according to the order for reference, holds a residence card as a family member of a Union citizen pursuant to Article 10 of Directive 2004/38, it should be borne in mind that Union law does not require the authorities of the Member State of which the Union citizen in question is a national to grant a derived right of residence to a third-country national who is a member of that citizen’s family because of the mere fact that, in the host Member State, that third-country national held a valid residence permit (see Eind, paragraph 26). A residence card issued on the basis of Article 10 of Directive 2004/38 has a declaratory, as opposed to a constitutive, character (see Case C‑325/09 Dias [2011] ECR I‑6387, paragraph 49).

rosebead wrote:raffy35, take a look at this thread: http://www.immigrationboards.com/eea-ro ... 54574.html

Raj5, you can only bring in your parents if they are dependent. Here's a Home Office letter that details the relevant EEA regulation, Regulation 7, and how it applies to SS: https://www.whatdotheyknow.com/request/ ... 5.pdf.html

rosebead wrote:Raj5, if you're talking about this:

"9(2)(b) if the family member of P is P’s spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in the EEA State before the British citizen returned to the United Kingdom; and"

All that means is IF your family member is your spouse, they MUST have been living with you in the same household in the host country (which makes sense or why would you be married). I assume that if your family member is someone else, like a parent, they don't have to live with you but they MUST be dependent on you.

jinkazama_11 wrote:

rosebead wrote:Raj5, if you're talking about this:

"9(2)(b) if the family member of P is P’s spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in the EEA State before the British citizen returned to the United Kingdom; and"

All that means is IF your family member is your spouse, they MUST have been living with you in the same household in the host country (which makes sense or why would you be married). I assume that if your family member is someone else, like a parent, they don't have to live with you but they MUST be dependent on you.

Your parents also have to live with u in the member state.

rosebead wrote: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.

rosebead wrote:Raj5, if you take a look at the Home Office letter it says that family members mentioned in Regulation 7 fall within the scope of Regulation 9. That is all you have to worry about.

As to why it's only spouses that are mentioned in Regulation 9, my guess is as I said, because if you are married you would be expected to live together. It might also possibly be because strangely Directive/2004/38 makes no specific mention of spouses having to be in the same household together - only "beneficiaries" are mentioned as having to be in the same household as the sponsor. I guess the UK wanted to make sure they covered all bases.

If dependent parents have to live in the same household (which is not specifically mentioned in the Directive), I wonder what happens then if dependent parents have to go to a nursing home in the host country. I doubt that it can be argued that just because dependent parents can no longer live in the same household as their sponsor, they would be kicked out of the host country. I don't doubt though that the UK have harsher conditions set for granting a right of return to Brits and their parents.

Raj5, yes the recent ECJ judgment confirms that service recipients cannot take advantage of Surinder Singh case law. Only those who reside in their host EU State in accordance with Article 7 or 16 can. Returning citizens must also have "created or strengthened a family life" in the host EU State - I'm still not sure what that exactly means as it seems to me open to interpretation.

Obie wrote:It appears to be Pre- OB.

I am just posting it, to ensure the forum is up to date on current position.

In any event, the law as interpreted by the CJEU will have to reign supreme.