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Dear Sir/Madam,
Please find below the reply to your enquiry. Please note that the advice given by Your Europe Advice is an independent advice and cannot be considered to be the opinion of the European Commission, of any other EU institution or its staff nor will this advice be binding upon the European Commission, any other EU or national institution.
Thank you, Mr Ap-Stewart, for contacting Your Europe Advice.
1. We are sorry to hear that your wife s application for an EEA Family Permit has been refused.
2. As you know the UK amended regulation 9 to introduce an additional requirement that British nationals who seek to return home after exercising free movement rights in another EEA country have to now demonstrate that they transferred their centre of life to another EEA member state.
3. As you are aware, under EU law, the non-EU family members of an EU citizen would have the right to reside in their EU relative s home country upon their return there if the EU citizen had previously worked in another EU country for a reasonable amount of time and the family members had lived there with him.
4. These rights stem from the European Court of Justice s ruling in Singh (case C-370/90) and Eind (case C-291/05).These cases concerned the rights of family members of EU citizens to benefit from EU rights of residence when returning back to the EU citizen s home country after spending some time working in another EU country (in the Singh case two years and in the Eind case for twenty months).
5. Therefore the Surinder Singh rules are not contained in a specific provision of the EU Treaties or EEA Agreement or indeed Directive 2004/38. Instead, the rules were laid down in case law.
6. There have not been any further rulings on the scope of these judgments. However, there are two cases currently pending before the EU Court of Justice - Cases C-456/12 and C-457/12 - which are essentially about whether the Surinder Singh ruling can be extended to other situations, such as recipient of services and cross-border workers. Advocate General Eleanor Sharpston has issued an Opinion recommending how the Court should rule on these issues, but the Opinion is not binding and the final judgment is not due until the middle of 2014 at the earliest.
7. In her Opinion she suggested that the Court rule the following:
(1) 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 does not apply directly to EU citizens returning to their Member State of nationality. However, the Member State of nationality may not give such EU citizens less favourable treatment than that owed to them as a matter of EU law in the Member State from which they moved to their Member State of nationality. As a result, Directive 2004/38 indirectly sets out the minimum standard of treatment that a returning EU citizen and his family members must enjoy in the EU citizen s Member State of nationality.
(2) EU law does not require an EU citizen to have resided for any minimum period of time in another Member State in order for his third country national family members to claim a derived right of residence in the Member State of nationality to which the EU citizen then returns.
(3) An EU citizen exercises his right of residence in another Member State if he makes that Member State the place where the habitual centre of his interests lies. Provided that, when all relevant facts are taken into account, that test is satisfied, it is irrelevant in this context whether that EU citizen keeps another form of residence elsewhere or whether his physical presence in the Member State of residence is regularly or irregularly interrupted.
(4) Where time elapses between the return of the EU citizen to the Member State of which he is a national and the arrival of the third country national family member in that Member State, the family member s entitlement to a derived right of residence in that Member State does not lapse provided that the decision to join the EU citizen is taken in the exercise of their right to a family life.
8. At present, it is very difficult to anticipate how to argue convincingly that the new requirement – namely that a person seeking to rely on the Surinder Singh ruling must have transferred their centre of life to another EEA member state - is contrary to EU law because the issue has not yet been addressed by the EU Court of Justice.
9. However, if the Court decides to follow the Advocate General, then we would anticipate that you would need to address these issues.
10. Applying paragraph (2) of the AG s Opinion to your situation, it means that the three months you have spent in France should be sufficient to demonstrate that you have exercised free movement rights because there is no time limit.
11. What should matter is therefore that you engaged in genuine and effective work that took place in France.
This would be demonstrated by producing documents that establish the following:
-you had a contract of employment,
-you were registered with a French social security institution,
-your work was remunerated and was not marginal, and
-you contributed to French social security institution.
12. Indeed the Advocate General makes the point that residence of up to three months is still residence (at point 137). She then makes the following point:
138. Suppose an EU citizen resided for two months in the host Member State and was joined there by his third country national spouse. Circumstances (perhaps, a parent s serious illness) cause him to return to his home Member State where he intends to reside with his spouse for the foreseeable future. He can do so provided that his spouse satisfies the relevant conditions in Directive 2004/38. The fact that she only lived with him for two months in the host Member State does not imply that the duration of her residence in the EU citizen s home Member State must be limited in the same manner. If it were [otherwise], the EU citizen might be forced either to refrain from moving back to his own Member State in order to continue to reside elsewhere in the European Union with his spouse, or to leave her behind when returning to his Member State because she could derive rights of residence only for two months and he needs to stay home for longer. Had they stayed in the host Member State, and provided that the relevant conditions were satisfied, his wife would have been able to stay for more than three months and possibly obtain permanent residence there.
13. The Advocate General then suggested how the Court should rule in a situation similar to yours:
144. Sponsor O moved from the Netherlands, married O in France and then moved with her husband to Spain. If O lawfully resided in Spain with sponsor O as a third country national family member of an EU citizen under Directive 2004/38, then sponsor O should not, when she returns to work and live in the Netherlands, be treated less favourably than when she moved to Spain to take up residence there. It follows, if those facts are confirmed (which is of course a matter for the national court), that O would have under EU law a right to lawful residence in the Netherlands. That right is neither unconditional nor absolute. It is subject to the conditions and limitations set out in Directive 2004/38 in the same way as his earlier right to residence in Spain. -- It is noteworthy here that there is no prescription in time as to the length of duration of residence.
14. Applying paragraph (3) of the AG s Opinion – namely that you made France the habitual centre of your interests – is more problematic and we would need more facts concerning the nature of your stay. By way of example, you would need to show that during the time you stayed in France, the habitual centre of your interests (work, family, accommodation and other relevant aspects) had indeed been transferred to France even if only for three months.
15. The fact that you did not rent accommodation should not be conclusive evidence that you did not move your habitual centre of your interests . There is nothing in EU or French law or UK law that prohibits you from staying rent-free somewhere. However, this might be considered as an indication that your stay was merely transitory in nature.
16. We suggest you give consideration to a number of possible options.
17. The first option is to appeal and request for the proceedings to be suspended until the EU Court of Justice has ruled in Cases C-456/12 and C-457/12. Regrettably, we do not have the mandate to represent you in an appeal. You would therefore need to seek the assistance of an organisation that can help you further.
Your local university may operate a law clinic where you can get free legal advice. Many clinics are listed on the website of LawWorks at the bottom of the page:
http://www.lawworks.org.uk/list-of-laww ... er-clinics
Depending on where you live, you may also visit your local law centre which provide free services.
http://www.lawcentres.org.uk/
The Immigration Law Practitioners Association is an association of immigration specialists, many of which are solicitors but some of their member organisations include Law Centres that provide free advice. Their members are listed here:
http://www.ilpa.org.uk/directory/webdirect.html
You can also search for a not-for-profit licensed immigration advisor here:
http://oisc.homeoffice.gov.uk/about_ois ... _advisers/
You can also seek the advice of a solicitor specialised in immigration matters. You can search for solicitors on the Law Society s website – enter your postcode and select immigration law from the Area of Law drop-down menu:
http://www.lawsociety.org.uk/choosingan ... icitor.law
18. At the same time you should consider returning to work France or in another EU country for long enough for your wife to obtain a residence card which usually takes up to six months. You would need to pay income tax in the country where you resided if you stayed in an EU country for more than 185 days.
19. During the period of any time spent in another EU country you should consider renting accommodation. If renting is not possible, you should aim to provide a written agreement between the landlord and you that specifies what you and your wife will do to contribute to the upkeep of the accommodation such as contributions to bills and/or specific house duties such as cleaning, taking care of plants or pets etc. You may wish to consider putting some utilities in your name such as mobile phone and/or internet subscriptions.
20 This would then allow you to make a new application to return to the UK in case you lost your appeal.
We hope this answers your query
. So much for an accelerated process!
. That is the first hand hopefully hardest step, but we receive this news with mixed emotion after living in a small comune in France for over a year! We have made some of the most amazing friends, without their help and also the help and information on here we would never of achieved what we have so far! 