Author Archives: A.Valcke

About A.Valcke

Anthony Valcke teaches EU Migration Law at the University of Kent in Brussels.

“5 Takeaways on Brexit”: Read Our Study on Brexit and Citizens’ Rights

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Since the Brexit vote in June 2016, a number of studies have looked into the financial and economic impact of Brexit, but none has undertaken a thorough analysis of the consequences of the UK’s withdrawal from the EU for citizens’ rights. With more than 3 million EU citizens resident in the UK and over 1 million UK citizens residing in other Member States, whose rights in those countries will be directly affected, there is a great deal of uncertainty about their future legal status.

Access the full study – Access the policy digest

This study is divided in two parts. The first part analyses the impact of Brexit on the main series of rights that are bestowed on citizens by virtue of their EU citizenship, including the right of entry, the right of residence, the right to work, social security rights, the right to establish a business and to provide services, consumer protection rights, passenger rights, the right to non-discrimination, voting rights and the rights of access to the EU institutions. The second part looks into the impact of Brexit on the ability of UK-based organisations to continue to access EU public funding streams, an issue which has raised a lot of concern especially from UK universities and innovation-driven entities, which are among the top beneficiaries of EU funding in the UK.

As part of its mission to empower citizens to exercise their rights in the EU, the EU Rights Clinic, in partnership with ECAS, the European Disability Forum and the New Europeans, has considered the impact of Brexit on citizens’ rights under different scenarios compared to the rights that citizens currently enjoy whilst the UK is a full member of the EU. The study analyses in addition the possible repercussions of Brexit for the access of UK-based entities to EU funding streams

The study has been produced by a team comprised of Professor Anthony Valcke, Supervising Solicitor at the EU Rights Clinic, in collaboration with ECAS Director, Assya Kavrakova, ECAS Membership and Outreach Manager, Marta Pont, and ECAS intern Connor Brown from the University of Sheffield. New Europeans and the European Disability Forum have contributed, respectively, to the analysis on voting rights and on non-discrimination rights.

Call for Evidence: Problems with Personnummer in Sweden

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Are you facing problems in getting your personnummer?

Are you an EU citizen who is unable to register your residence in Sweden?

The EU Rights Clinic can help!

In Sweden, getting a personummer is essential to lead a normal life in the country.

As EU citizens, we are meant to enjoy free movement across borders in all EU countries and to be treated in the same way as nationals of the country where we live.

However, for EU citizens who live in Sweden obtaining this important number is often a headache.

In recent times EU citizens have found difficulties in obtaining a personnummer and this is why we are initiating a complaint against the Swedish authorities in charge of issuing this number.

We are therefore calling upon EU citizens living in Sweden who have been refused a personnummer by the Skatteverket in 2016 to contact us by email (eurightsclinic@gmail.com) and share their experiences.

We are particularly interested in finding out the reasons given by the Swedish authorities for refusing to issue you with a personnummer.

We hope to use this information to formulate a complaint to the EU institutions so they can bring an end to the restrictive policy of the Swedish authorities on personnummer.

If you or anyone you know have had such difficulties in migrating to Sweden due to this issue, please contact us by email (eurightsclinic) and let us know your experience!

All information received will be treated confidentially and will not be divulged without your explicit consent.

Tack så mycket!

The EU Rights Clinic

***Watch this video for a summary of the problem (from 11:45)***

Expulsion Helpdesk: EU Rights Clinic and Europe4People join forces to help EU citizens in Belgium

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Have you received an EXPULSION ORDER from the Belgian Immigration Office? Is your residence status under investigation? Are you worried about your situation and you do not know what to do?

Don’t panic! But don’t delay in getting help!

The Helpdesk for EU Citizens Facing Expulsion can HELP you to get the advice you need.

WHEN? Every Thursday evening from 18:00 to 20:00

WHERE? At the Centre Culturel Garcia Lorca, Rue des Foulons 47-49, 1000 Brussels

HOW? Please book your appointment by email helpdesk [AT] europe4people.org or use the contact form here.

Do not forget to bring all your documents!

You can watch coverage of the Helpdesk on EuroNews.

This service is free of charge and intended only for EU citizens and their family members

***Watch this video for a summary of the problem (from 27:04)***

EU Rights Clinic helps respected university professor to continue teaching in UK after being told to leave by Home Office

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The EU Rights Clinic has successfully helped an award-winning senior associate professor in psychology to obtain a residence card despite the Home Office rejecting his first application and telling him he should make arrangements to leave the UK or face deportation.

The Home Office had refused our client Michael J Proulx’s first application for permanent residence on the basis that he had not proved that his EU wife was exercising free movement rights in the UK, despite having lived in the UK since 2008, during which time he conducted ground-breaking research at the University of Bath into sensory substitution that benefits the blind.

The Home Office did not accept that Michael’s wife was a worker even though she lectures part-time at the University of Bristol. One of the reasons cited for the refusal by the Home Office was that Michael and his wife did not have private healthcare insurance in place and were therefore considered “a burden on the UK’s social assistance system”.  This requirement was imposed despite the fact that our client and his wife have jointly contributed several tens of thousands of pounds in income tax and national insurance contributions during their working lives in the UK and have never claimed benefits. Michael had believed that, as a UK tax-payer, his family should be free to rely on the National Health Service (NHS) for their healthcare needs.

However, the Home Office’s current policy means that it does not accept reliance on the NHS as evidence of having comprehensive sickness insurance, which is a requirement that must be met by EU citizens who live but do not work in the UK. The UK authorities currently require EU citizens who do not work to have private healthcare insurance, even though they are entitled to free treatment on the NHS as a matter of UK law. Nor have the UK authorities put in place any process that would enable EU citizens to make voluntary healthcare surcharge contributions if they wanted to.

The UK is currently the subject of an investigation by the European Commission for breaching the EU rules on the free movement of persons as regards its restrictive policy on healthcare entitlements. Regrettably, the UK courts have so far sided with the Home Office on this issue and ruled the policy is justified.

Michael, who was a torchbearer at the 2012 London Paralympics, says:  “I still cannot quite believe what happened to us. The Home Office appear to have their priorities all mixed up. We are very grateful that the EU Rights Clinic was able to intervene on our behalf.”

Michael was assisted in this case by caseworkers Amelia Stoenescu and Ben Slaugh, students at the University of Kent, under the supervision of qualified lawyers. Anthony Valcke, solicitor for the EU Rights Clinic commented: “This case is a perfect example of the lunacy of the Home Office’s policy that requires non-working EU citizens to have private healthcare in place even if their working spouse contributes to the UK’s public finances. The policy is designed to prevent EU citizens from becoming an unreasonable burden on the UK’s finances. Yet when an EU citizen is supported by a working spouse who is not from the EU, the working spouse’s contributions to the Treasury are completely ignored.”

Unfortunately, despite having received a 5-year residence card for the UK, Michael is still facing problems whenever he returns from business trips abroad. He has been detained on three separate occasions at the UK border. It appears that the UK Border Force’s computers only flag up his first refusal without showing that his right to reside has now been recognised. The EU Rights Clinic will be writing to the Home Secretary to raise the matter.

EU Rights Clinic Helps EU Citizens to Appeal Belgian Expulsion Orders

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The EU Rights Clinic has assisted a Greek citizen to appeal successfully against a decision to expel him from Belgium. In a judgment delivered on 13 March 2015, the Belgian Immigration Appeals Council annulled an expulsion order that had been served on our client Aristidis, even though he was a worker at the time and therefore could only be expelled under EU law if he represented a threat to public order or public security.

In March 2014, the Belgian Immigration Office had issued an expulsion order against Aristidis on the basis that he no longer had the right to reside in Belgium, because they considered that he did not have any chance of finding work. However, the Immigration Office sat on the decision for seven months before notifying Aristidis of the expulsion order. By the time the expulsion order was notified to Aristidis in October, he had already found full-time work. This meant he should not be expelled from Belgium under the terms of Article 14(4) of the EU’s Free Movement Directive.

The Immigration Appeals Council considered that the Immigration Office had failed to provide any reasons that justified the expulsion order against Aristidis. However, the Council did not go as far as to annul the decision to terminate Aristidis’s right of residence in Belgium. The Council did not consider that the seven-month delay in notifying the decision to Aristidis had affected the legality of the decision to terminate his right of residence. As a result, Aristidis had lodged a further appeal on this point before the Belgian Council of State.

In 2013, Belgium served expulsion orders on no less than 2,712 EU citizens who were considered as no longer having the right to reside in Belgium. A similar number of EU citizens is expected to have been ordered to leave in 2014. The European Commission has launched an investigation into the actions of the Belgian authorities in this regards following a joint complaint submitted by the EU Rights Clinic with INCA CGIL, FGTB/ABVV and Bruxelles Laïque.

Legal assistance in the case was provided by the Clinic’s Legal Supervisor Anthony Valcke, legal volunteer Giulia Donadi and volunteer advocate Benoit Dhondt of the University of Ghent’s law clinic.

Anyone who has received an expulsion order in Belgium can get free face-to-face advice on their rights by contacting the Europe 4 People Helpdesk.

The views expressed on the blog are personal to the authors and should not be seen as constituting legal advice. It should not be relied upon instead of consulting a lawyer.

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UK Government to Recognise Family Member Residence Cards from April 2015

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*Updated 17 April 2015*

The UK Government has laid regulations before Parliament that will give effect to the ruling in Case C-202/13 McCarthy.

On 16 March 2015, the Immigration (European Economic Area) (Amendment) Regulation 2015 SI No 694 were laid before Parliament and will come into force on 6 April.

The effect of these amendments will be that, from 6 April 2015, EEA Family Permits will no longer be required in circumstances where a valid residence card issued under Article 10 of the Directive is held by a non-EEA national accompanying or joining an EEA national exercising free movement rights in the United Kingdom.

In Case C-202/13 McCarthy the CJEU ruled last December that “Member States are, in principle, required to recognise a residence card issued under Article 10 of Directive 2004/38, for the purposes of entry into their territory without a visa”.

The judgment was handed down in Case C-202/13 McCarthy on a reference for a preliminary ruling by the English High Court, concerning a dual British/Irish citizen residing in Spain with his Colombian wife and their children. Mrs McCarthy held a residence card issued under Royal Decree No 240/2007, which gives effect to Directive 2004/38 in Spain. Despite holding such a residence card, the UK authorities had required Mrs McCarthy to obtain a visa called an EEA family permit in order to enter the UK with her husband.  The McCarthys brought proceedings before the High Court to challenge the UK’s policy not to recognise such residence cards. The High Court then referred the matter to the EU Court of Justice for a binding opinion on the interpretation of the EU rules.

The implementation of the CJEU’s ruling will bring an end the UK’s long-running policy that effectively required all family members of EU citizens to obtain an EEA Family Permit before being able to enter the UK with their EU relative, even though they held a residence card issued by another EEA State.

Under Article 5(2) of Directive 2004/38, which governs the rights of entry and residence of EU citizens and their family members who move around the EU, the possession of a residence card issued under Article 10 should exempt a non-EU family member from the need to obtain a visa when they travel to an EU country with their EU relative or join them EU there. The Directive applies to all EU countries as well as Norway, Liechtenstein and Iceland by virtue of EEA Standing Committee Decision No 158/2007.

However, the Directive does not apply to Switzerland. As a result, the visa exemption does not apply to those holding a residence card issued under the EU/Swiss Agreement on the Free Movement of Persons. The family members of EEA nationals residing in Switzerland will still be required to obtain an EEA Family Permit.

Prior to these amendments being made, the UK was in breach of Article 5(2) of Directive 2004/38 because it required non-EU nationals who are family members of EU citizens residing in another EU country to an EEA family permit in order to enter the UK. The issue was first identified in a 2008 compliance study undertaken for the European Parliament (pp 165-166). The UK should have been exempting family members who hold a family member residence card from the need to obtain a visa but its implementing rules – the Immigration (European Economic Area) Regulations 2006, specifically regulation 12 – did not allow for such a facility.

The problem lay in the definition of “residence card” under regulation 2 of the EEA Regulations. While the UK amended its rules with effect from 1 January 2014, it only initially recognised cards from Germany and Estonia, but not those issued by other Member States. Apparently, this limited recognition was justified on the basis of the practice of these two countries to issue residence cards containing the biometric data of family members. Following the changes made by the 2015 Regulations, a “residence card” is now defined as a residence card issued under Article 10 of Directive 2004/38 by an EEA State except Switzerland. (Click here for a consolidated version of the EEA Regulations).

As a result of the changes, family members who hold a residence card explicitly identifying them as the family member of an EU citizen will be able to travel to the UK without the need for a visa in the form of an EEA Family Permit, when they accompany their EU relative or join them in the UK.  The Home Office has now issued guidance that explains the new rules.

However, note that residence permits issued under national immigration law to the family members of EU citizens living in their country of nationality will not benefit from this exemption. Such family members will still be required to obtain a visa to travel to the UK even when accompanying or joining their EU relative in the UK.

The 2015 Regulations also make several amendments to the EEA Regulations. A new regulation 23A now gives the possibility for the UK authorities to revoke a right of admission to the UK on the basis that the EU citizen or family member in question is a threat to the public interest on grounds of public policy, public security or public health under regulation 19(1), or because the person concerned is subject to a deportation order or an exclusion order under regulation 19(1A), or because there are “reasonable grounds to suspect that admission would lead to the abuse of a right to reside” under regulation 19(1AB). Appeals against a decision to revoke a right of admission can only be made by an out-of-county appeal under regulation 27.

A further set of changes amend the Accession of Croatia (Immigration and Worker Authorisation) Regulations 2013. As a result, Croatian nationals subject to the worker authorisation scheme will benefit from similar changes to the immigration rules enjoyed by non-EU nationals as regards Tier 1 Exceptional Talent and student sabbatical officers.

Regrettably, the 2015 Regulations make no changes to the “transfer of centre of life” test contained in regulation 9 in connection with the family members of British citizens returning to the UK after exercising free movement rights in another EU country. Regulation 9 is intended to give effect to the Surinder Singh ruling. It was amended last year to require British citizens who return home after residing in another EU country to demonstrate that they had previously transferred the centre of their life to the EU country from which they are returning.

However, the European Commission is reportedly investigating the UK over the issue. In correspondence on the issue, the Commission explained that it considers that:

“The UK criterion of having transferred one’s centre of life to the host Member State is not contemplated in the Directive and would not appear to be equivalent to the conditions spelt out in [Case C-456/12] O and B, in particular where [sic] examining the location of the principal residence€ and the degree of integration in the host Member State. The location of EU citizens’ principal residence or their degree of integration do not play any role in examining whether the residence is in line with Article 7 of the Directive

It therefore remains to be seen how the UK authorities intend to give effect to Case C-456/12 O & B.  In this case, the EU Court of Justice held that the the right of EU citizens to return home with their non-EU family members is only conditional upon demonstrating (1) “genuine residence” in another EU country, namely by residing for a period in excess of three months during which time the EU citizen and his family members met the requirements of Article 7 of Directive 2004/38; and (2) during the period of residence in another EU country, the EU citizen created or strengthened his family life.

Given that the UK’s regulation 9 that gives effect to Surinder Singh have yet to be brought into line with Case C-456/12 O & B, the family members of British citizens returning home should continue to apply for an EEA Family Permit before trying to return to the UK, as this will minimise the risk of being refused entry to the UK and having the considerable inconvenience of having to appeal the decision from outside the UK.

Such a course of action is clearly recommended in view of the UK Government’s interim briefing for Border Force officials published in a response to a Freedom of Information Act request by BritCits, in which it takes the following view:

“10. It should be noted that this judgment [in Case C-202/13 McCarthy] does not affect the rights of family members of British citizens who have exercised Treaty rights in another EEA member state under the ‘Surinder Singh’ judgment. Such persons should continue to be considered under regulation 9 of the EEA Regulations.”

This guidance appears to be in direct contradiction with paragraphs 41 and 42 of the CJEU’s ruling in the McCarthy case:

“41        … there is nothing at all in Article 5 indicating that the right of entry of family members of the Union citizen who are not nationals of a Member State is limited to Member States other than the Member State of origin of the Union citizen.

42      Accordingly, it must be held that, pursuant to Article 5 of Directive 2004/38, a person who is a family member of a Union citizen and is in a situation such as that of Ms McCarthy Rodriguez is not subject to the requirement to obtain a visa or an equivalent requirement in order to be able to enter the territory of that Union citizen’s Member State of origin.”

Moreover, the Home Office guidance fails to explain how the new rules affect family members of British citizens who return home after exercising free movement rights.

As a result of this continuing discrepancy between the EU and UK rules, family members of British citizens residing in another EEA state are therefore encouraged to apply for an EEA Family Permit before travelling back to the UK.

Those wanting further advice on their situation are invited to contact Your Europe Advice for further information.

‘UK Government to Recognise Family Member Residence Cards from April 2015’ first appeared on the EU Rights Clinic’s blog.

The views expressed on the blog are personal to the authors and should not be seen as constituting legal advice. It should not be relied upon instead of consulting a lawyer.

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Seven Strategies to Improve the Free Movement of Persons

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EU Rights Clinic and ECAS launch Right to Move Campaign

RightToMove Logo OFFICIAL The EU Rights Clinic and ECAS have launched the Right to Move campaign, which consists in advocating for seven strategies to improve the free movement of persons in the EU.

The free movement of persons is one of the cornerstones of the EU’s Single Market and is a right deeply cherished by citizens in Europe today.

This campaign is a response to the recent and unprecedented calls made by several governments for imposing further restrictions on the free movement of people based on unsubstantiated claims about the impact of the EU rules.

In order to counter these accusations, we believe that it is important to seize the initiative and propose measures aimed at ensuring that the free movement rules can work better for all EU citizens.

We are therefore launching the Right to Move campaign based on seven strategies to improve the free movement of persons in the EU:

  1. Directive 2004/38 should be recast into a Regulation

This would reduce divergence in administrative formalities in the EU and further facilitate the exercise of the right of free movement by EU citizens and their family members. Click here for our first strategy paper.

  1. The Commission’s powers of investigation should be strengthened

The Commission needs to have a full range of measures at its disposal to investigate and enforce the free movement rules more efficiently and fulfil its mission as Guardian of the EU Treaties. Read the second strategy paper.

  1. Member states should collate better statistics on the free movement of persons

The collection of data on the free movement of EU citizens and their family members would encourage better evidence-based policy-making by the Member States as well as the EU. Find out more about this strategy paper.

  1. Member states should deepen their collaboration on the free movement of persons

Member States can only develop appropriate and effective responses to challenges generated by the free movement of persons through cooperation guided by independent expertise. Click here for the strategy paper.

  1. Civil society organisations should be empowered to help citizens overcome obstacles

Empowering civil society groups to inform and assist mobile citizens will ensure that these citizens can make effective use of those rights and overcome obstacles that may come their way. Read more about this strategy here.

  1. Judgments of the EU Court of Justice prior to 2004 should be translated into all languages

Citizens and their advisers need to be able to rely on the relevant judgments of the EU Court of Justice in all EU official languages irrespective of when the judgment may have been issued. Further details about our proposed sixth strategy can be found here.

  1. A pro free movement counterfactual should be developed to refute anti-migrant rhetoric

Politicians who believe in the benefits of European integration must learn to present the benefits of free movement using similar tactics and terminology deployed by populist politicians. Click here for the final strategy.

We hope you will endorse the campaign and we thank you in advance for your support.

The views expressed on the blog are personal to the authors and should not be seen as constituting legal advice. It should not be relied upon instead of consulting a lawyer or immigration adviser.

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The EU Rights Clinic: One Year On

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The UK is at the forefront of countries where EU citizens experience problems when exercising their right of free movement.

In the twelve months since its establishment, the EU Rights Clinic has received over 60 requests for assistance. 44% of the Clinic’s cases related to problems encountered by EU citizens in the UK. Several problems were also reported in Belgium (12% of cases), Spain (11% of cases) and France (8% of cases).

The Clinic assisted over 160 individuals throughout the EU – of which over half comprised British citizens – and helped them to resolve problems in 14 different European countries.

The problems encountered by the Clinic’s clients span a wide range of issues, but the vast majority of problems related to residence formalities (46%) and visa problems faced by non-EU family members (21%).

During the course of the year, the Clinic provided its assistance in a number of notable cases. The nature of the assistance ranged from assisting EU citizens in completing forms and signposting to EU information services, to providing advice and helping them to appeal before the national courts.

One of the first cases registered concerned a British citizen whose disability benefits were suspended by the UK authorities when he moved to Norway. The Clinic considered this breached the EU Regulation on the coordination of social security on the basis of a judgment handed down by the EU Court of Justice in 2007. The client assisted the client in lodging an appeal before the UK’s First Tier Tribunal and arranged for the client’s free representation at the appeal hearing. In December 2013, the UK Tribunal ruled in favour of our client and ordered the UK’s Department for Work and Pensions to pay back the benefits that had been withheld from the client since 2007. The DWP has sought to appeal the case and we are presently assisting our client in resisting the appeal.

In March, the Clinic assisted ECAS in securing the release of internal documents of the European Commission relating to negotiations over the UK’s so-called “Opt out” from the EU Charter on Fundamental Rights.  ECAS made the initial request for these documents in October 2007, prior to the signing of the Lisbon Treaty. The request was made under EU Regulation 1049/2001 which allows the public to request the release of documents from the EU institutions. After an initial refusal from the European Commission, ECAS took the matter before the European Ombudsman.  The Ombudsman issued a final decision in December 2012 ruling that the Commission was guilty of “a serious instance of maladministration” and that “the Commission’s position constitutes a substantive violation of the fundamental right of access to documents foreseen in Article 42 of the Charter”. Following a new request by ECAS, the Commission released the contested documents on 31 January 2013. The EU Rights Clinic examined the released documents and issued a detailed briefing on their contents.  The released documents indicate that the Council Presidency initially proposed the removal of any reference from the Charter to its binding effects on the Member States as a way to address UK concerns.  The Commission disagreed with this interpretation and considered that an opt-out was preferable to amending the Charter. The case was reported in the European press.

Another notable case involved making an official complaint to the European Commission against the delays faced by EU citizens when crossing the border between Spain and Gibraltar. The Clinic received over 100 complaints from residents of Gibraltar, frontier workers and tourists affected by delays of almost eight hours resulting from border control formalities imposed by the Spanish authorities during the summer of 2013. The Clinic lodged an official complaint arguing how the delays breached the EU rules on free movement, the EU Charter of Fundamental Rights and the Schengen Border Code. Despite the overwhelming evidence provided that the Spanish authorities had imposed excessive and arbitrary border control measures that breached EU law, the European Commission issued a statement in November in which it found that EU law had not been infringed. The EU Rights Clinic has since made an official request for the Commission’s internal documents to determine the precise reasons for its finding of no infringement. Once these internal documents are released, the Clinic will proceed to examine the documents and issue a report.  The Clinic’s involvement has been reported in the Spanish and British press among others.

Our annual report for 2013 will be available in due course.

The views expressed on the blog are personal to the authors and should not be seen as constituting legal advice. It should not be relied upon instead of consulting a lawyer or immigration adviser.

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Swiss vote for renunciation of EU/Swiss free movement agreements

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Today, Switzerland voted in a referendum that signals an end to the EU/Swiss Agreement on the Free Movement of Persons that was signed in Luxemburg on 21 June 1999. The Agreement had last been approved by Swiss citizens in a referendum held less than three years ago.

This time, a slim majority of 50.3% of the Swiss population voted in favour of a popular initiative entitled “against mass immigration”. 56% of registered voters reportedly took part in the vote. 17 federal cantons voted in favour, while 9 voted against. In order to be approved, a popular initiative requires a dual majority: the initiative needs to obtain the consent of the majority of the voters, and it must be approved in a majority of the cantons.

The Swiss Ministry of Justice has already indicated it will start work on a legislative proposal to give effect to the new constitutional provision. The Ministry also specified that it would seek to renegotiate the Agreement on the Free Movement of Persons with the EU within a three year transitional period. The Agreement remains in force for now.

The initiative aims to insert a new article into the Federal Constitution of the Swiss Confederation to give the Swiss government absolute control over immigration by imposing caps on migrants living or working in Switzerland. It also mandates that no international agreement concluded by Switzerland can provide for the contrary.

The new constitutional provision that was approved in the referendum reads as follows:

‘Article 121a (new) Management of immigration

1 Switzerland shall regulate immigration as it sees fit.

2 The number of permits entitling foreigners to reside in Switzerland shall be subject to annual ceilings and quotas. The ceilings shall apply to permits issued pursuant to the immigration laws, including the rules on asylum. The right to permanent residence, family reunification and social welfare entitlements can be restricted.

3 The annual ceilings and quotas for foreigners exercising a gainful activity will be determined in accordance with Switzerland’s global economic interests and in accordance with the principle of preferential treatment of nationals; these shall also cover frontier workers. The criteria for allocating residence permits shall be based upon the needs of the employer, the capacity to integrate and the existence of adequate and self-sufficient resources.

4 No international treaty shall be concluded which contravenes these provisions.

5 Legislation shall give further effect to this provision.’

The initiative also provides a transitional period of three years during which international treaties must be renegotiated:

‘Art. 197 Transitional Measures relating to Article 121a

1 International treaties which are contrary to Article 121a shall be renegotiated and amended within a period of three years from the date of approval of the provision by the people and the cantons.

2 In the event that the laws giving effect to Article 121a have not entered into force within three years of the approval of the provision by the people and the cantons, the federal Council shall adopt provisional measures to give effect to the provision by way of decree.’

However, it remains to be seen whether there will be appetite among the EU institutions and the Member States for a whole-scale renegotiation of the Agreement on the Free Movement of Persons.

The negotiations relating to the current Agreement began not long after the rejection of Swiss participation in the EEA Agreement by a referendum held on 6 December 1992. The no vote in the referendum was swiftly followed by an official request by the Swiss authorities to start negotiations for an agreement on air transport. However, the EU prevailed in tying the conclusion of an agreement on air transport to the negotiation of a further six bilateral agreements covering free movement of persons amongst others. The Agreement on the Free Movement of Persons was eventually signed in 1999 and only entered into force some three years afterwards. This was followed by a transitional period of five years, so that it was only in 2007 that the Agreement finally took full effect.

In any event, regardless of the EU’s willingness to renegotiate the terms of the Agreement on the Free Movement of Persons, the Swiss government does have the option to renounce the Agreement by giving notice to the EU under Article 24. In such a case the Agreement then comes to an end six months after notification of a Swiss withdrawal.

Moreover, the Agreement on the Free Movement of Persons contains a “guillotine” mechanism covering all EU bilateral agreements, so that renunciation of this Agreement automatically triggers the termination of the other six bilateral agreements on air transport, rail and road transport, agriculture, mutual recognition of technical standards affecting goods, government procurement, as well as scientific and technical cooperation (collectively known as “Bilatérales I” in Switzerland). Renunciation of the Agreement on the Free Movement of Persons would therefore have wider far-reaching implications for Switzerland’s relations with the EU.

While a Swiss withdrawal from the Agreement on the Free Movement of Persons does not trigger the automatic termination of the separate agreements on Switzerland’s participation in the Schengen area and the Dublin Regulation signed in 2004 (referred to as “Bilatérales II” by the Swiss), both Switzerland and the Council of the EU also have a right to terminate those agreements (Articles 17 and 16 respectively) . There is a strong possibility this could happen given that the EU appears to consider the Agreement on the Free Movement of Persons as a pre-condition for participation in the Schengen Area, as reflected by the penultimate recital of the agreement concerning Swiss participation in the Schengen area. Renunciation of that agreement by Switzerland would then trigger cancellation of the agreement concerning the Dublin Regulation under Article 16.

The referendum affects an estimated 1.15 million foreign workers in Switzerland or 23% of the Swiss workforce according to EU Commissioner for employment and social affairs László Andor. A further 453,000 Swiss citizens living throughout the EU will also be affected by the popular initiative.

This development strikes a serious blow against the free movement of persons – one of the cornerstones of the European integration process – which is already under challenge from a number of EU governments and will no doubt provide ammunition for those calling for a renegotiation of the EU rules on free movement.

EU citizens and Swiss citizens who have questions about the effects the referendum will have on their personal situation are invited to contact Your Europe Advice for further assistance.

**Postscript**: For a discussion of the implications of the Swiss referendum in both Switzerland and the UK, please visit the EU Law Analysis blog. 

The views expressed on the blog are personal to the authors and should not be seen as constituting legal advice. It should not be relied upon instead of consulting a lawyer or immigration adviser.

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UK Changes Rules on Surinder Singh Route

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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.”

The official Explanatory Note states:

‘Paragraph 5 of the Schedule replaces the existing regulation 9 of the 2006 Regulations to require a British citizen to have “transferred the centre of his or her life” to another member State in order to acquire a right of residence in the UK for his or her non-EEA family member seeking a right to reside in the UK upon their return. Factors relevant to whether the centre of a person’s life has been transferred to another member State include the period of residence in that member State, the location of that person’s principal residence, and the degree of integration. These changes are to ensure that a British citizen engages in genuine and effective use of the rights conferred by Directive 2004/38/EC before a right to reside in the United Kingdom is conferred on a non-EEA family member.’

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.”

Here are some initial thoughts on the changes:

  • As to the duration of the time spent working in another EU country, it should be recalled that in Surinder Singh (Case C-370/90), Mrs Singh worked for about two years in Germany. In Akrich (Case C-291/01), Mrs Akrich had worked in Ireland for six months before trying to return home to the UK with her husband using the Surinder Singh route. The Court seemed to accept this was sufficient to trigger the right to return home. However, ultimately, the attempt by Mrs Akrich’s husband to return to the UK with his British spouse using the Surinder Singh route failed because the Court ruled that the EU free movement rules could only be relied upon by non-EU family members who had lawfully resided in an EU country. This was not the case of Mr Akrich, who had been deported from the UK several times and was the subject of a ban on re-entry.  Nonetheless, the Akirch case was later overturned on this specific point in Metock (Case C-127/08, para. 58). In that case, the Court found that prior lawful residence in the EU could not be made a condition for the right to reside under Directive 2008/34. This Directive also applies by analogy to EU citizens returning home with their family members after exercising their right to free movement. In Eind (Case C-291/05), Mr Eind stayed in the UK for 15 months before receiving confirmation of his right to reside in the UK. He then spent a further period of five months in the UK before returning home to the Netherlands with his daughter. In a pending case before the Court of Justice (O & Others, Cases  C-456/12 and C-457/12, AG Opinion due on 12 December 2013), the Court has been asked to determine whether B., the Moroccan husband of a Dutch recipient of services who spent week-ends in Belgium over a 16-month period while continuing to work in the Netherlands, can invoke the Surinder Singh route to return home with his spouse. The EU wife of the second applicant, O., spent her week-ends in Spain with her Nigerian spouse while working in the Netherlands. The view of the Dutch Ministry of the Interior appears to be that there was no effective exercise of the right to free movement, since only a continuous period of residence lasting over three months qualifies. ***update*** Advocate General Sharpston’s Opinion can be read here.
  • Assessing whether there has been a change in location of a person’s principal residence involves looking at several issues. If the rules are interpreted with the necessary degree of proportionality as required by EU law, a person’s principal residence should be considered to have changed from the UK to another EU country if the person moves to another EU country with his close family members for example. It would also mean complying with local residence formalities in the EU country of work.
  • The degree of integration should be assessed by reference to several factual elements (see Joined Cases C-523/11 & C-585/11 Prinz and Seeberger [2013] ECR nyr (judgment of EU Court of Justice of 18 July 2013), at para. 38). Integration can be demonstrated by holding the nationality of the EU country of work (for example a dual French/UK national working in France) or speaking the local language. It can also be that the person has other family there, was educated there, or is genuinely employed there (so posted workers should also be included). Other social and economic factors that should also be taken into account include paying national insurance and income tax in the country of work among other circumstances.

For those who may feel they are affected by the change in the rules and want further information on how this might concern their situation, they are invited to contact Your Europe Advice for further information.

‘UK Changes Rules on Surinder Singh Route’ first appeared on the EU Rights Clinic’s blog.

The views expressed on the blog are personal to the authors and should not be seen as constituting legal advice. It should not be relied upon instead of consulting a lawyer.

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