Category Archives: United Kingdom

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.

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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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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EU Rights Clinic Investigates Gibraltar Border Delays

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The EU Rights Clinic has received over 80 detailed complaints from citizens of the European Union about excessive delays at the Spanish-Gibraltar border crossing that left them waiting between 3 to 6 hours to cross the border in either direction on and around the week-end of 28/29 July 2013.

The complainants include residents from Gibraltar, commuting Spanish workers and tourists. EU citizens who crossed the border were subjected to excessive controls targeting most vehicles queuing at the border. The measures required drivers to open the boot of their vehicle for the border guards to perform a perfunctory check.

The Citizens Advice Bureau in Gibraltar reported that their “clients were left waiting in a queue to cross the border into Spain for over 6 hours in the scorching heat.  One client’s baby became sick because of the heat and started to vomit and [the parents] had to call an ambulance since there was no way they could get out of the queue.  Another client was late to catch a flight for their summer holiday.” A woman who could not get home until well past midnight commented “from what I saw, the [Spanish] civil guards weren’t even checking vehicles properly to justify their actions as searches for contraband or other illegal baggage.”

Spain claims it is carrying out legitimate measures to combat smuggling and fiscal evasion. While the EU rules on free movement of goods do not apply to Gibraltar, the EU rules on the free movement of persons and EU citizenship do remain applicable.

Anthony Valcke, solicitor at the EU Rights Clinic, explains:

‘Free movement of persons can only be restricted on public interest grounds. Combating smuggling and fiscal evasion are legitimate aims but they have to be carried out in a manner which is necessary and proportional. The measures here do not appear proportionate – the aim is not achieved if checks are being carried out half-heartedly – and nor do the measures appear necessary – because there could be alternative and more efficient ways of carrying out such checks. Furthermore, the EU Court of Justice has previously ruled that checks on persons who move freely around the EU should not be carried out on a systematic basis.’

It is not just the free movement of persons which is being affected. This issue goes to the very heart of Citizenship of the EU. The Spanish measures appear to be explicitly intended to interfere with the enjoyment by EU citizens of the substance of the rights conferred by the Treaties. Indeed the Spanish government has even announced it would consider imposing a toll fee of €50 (£43) on each person crossing the border. It is hoped that the European Commission would take immediate action before the EU Court of Justice in the event such a fee was imposed.

Evidence of delays at the border is now being documented on a daily basis. Peaks in the delays seem to coincide with other political events affecting Gibraltar’s and the UK’s relations with Spain. While the Spanish territorial claims may be legitimate concerns, this is a matter to be addressed in the appropriate forum. In no way do such claims justify the treatment suffered by EU citizens who wish to exercise their EU rights and move freely between EU member states. This is a particularly lamentable situation since it was at the initiative of the Spanish government that European citizenship was included in the Treaty of Maastricht.

For this reason, the EU Rights Clinic proposes to review the complaints it has received and to consider whether it would be appropriate for a request to be made to the European Commission for it to launch an immediate investigation into the matter. Citizens of the EU are entitled to expect the Commission will take all appropriate measures to safeguard their citizens’ rights.

 

The Surinder Singh Route – Understanding the Law

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*** This post is currently being updated to reflect changes following Case C-456/12 O & B, the UK’s “centre of life” and abuse of law – please visit again soon*** 

In June 2013, the BBC broadcast a report in which it examined the effect that the UK’s new Immigration Rules concerning family members are having on British citizens. The full report entitled “Extreme Immigration” is available as a podcast here.

The BBC’s report told the story of a number of British citizens who have decided to make use of EU rights conferred by the EU Court of Justice in the Surinder Singh case as a result of the new financial requirements for families under the UK Immigration Rules.

The EU Rights Clinic believes it beneficial to provide an explanation of the Surinder Singh case.

What was the Surinder Singh case all about?

Mr Singh was an Indian citizen who worked with his British wife in Germany for several years. The couple then returned to the UK where he was allowed to reside with his wife on the basis of the UK immigration rules (limited leave to remain).  The couple then divorced. The UK authorities decided to curtail his leave to remain and order his removal from the UK. Mr Singh challenged the decision before the UK courts, which then decided to refer the matter for an opinion from the EU Court of Justice on whether Mr Singh had a right to reside in the UK on the basis of EU law.

What did the EU Court of Justice decide?

In its ruling handed down on 7 July 1992 in case C-370/90, the EU Court of Justice ruled that Mr Singh had a right under EU law to reside in the UK on the basis that his wife had previously exercised her right to free movement by working in Germany.

The Court explained 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.

The EU Court therefore ruled that an EU citizen who has gone to another Member State in order to work there and returns to his home country has the right to be accompanied by his spouse and children whatever their nationality under the same conditions as are laid down by (what is now) Directive 2004/38 which governs residence rights.

How has the Surinder Singh case been given effect in the UK?

The Surinder Singh case has been given effect in UK law by regulation 9 of the Immigration (European Economic Area) Regulations 2006.

The UKBA has issued guidance to explain how the Surinder Singh rules apply in the UK as well as further detailed guidance on how the rules apply to non-EEA family members in Chapter 2 of its European caseworker instructions.

The UKBA’s internal European Operational Policy Team instructions Issue 5/2011 also provide further guidance on regulation 9.

Which family members benefit from Surinder Singh?

The EU Court has only so far recognised the right of spouses and children of EU citizens to return home after exercising free movement rights in another EU country.

However, the UK’s Upper Tribunal ruled on 14 October 2014 that regulation 9 also applies to unmarried partners (SSHD v Kamila Santos Campelo Cain (IA/40868/2014) promulgated 17 October 2014)

Is this a loophole in the law?

Contrary to comments made in some quarters, the Surinder Singh case is not a loophole. It is a right enshrined in EU law by the EU Court of Justice since 1992. Under section 3(2) of the European Communities Act 1972, judgments of the EU Court of Justice must be given effect in the UK.  As a result, the Surinder Singh case has been incorporated into UK law by regulation 9 of the Immigration (European Economic Area) Regulations 2006.

If the UK was to leave the EU would this close the Surinder Singh route?

Not necessarily. This would depend on the terms of the UK’s exit that would need to be negotiated under Article 50 of the Treaty on European Union as inserted by the Lisbon Treaty. If the United Kingdom was to leave the EU but agree to join the European Economic Area (currently the EU states plus Iceland, Liechtenstein and Norway) in order to continue its participation in the Single Market, the Surinder Singh case would continue to have effect in the UK by virtue of Article 28 of the EEA Agreement. If the United Kingdom was to negotiate a stand-alone Agreement on the Free Movement of Persons like Switzerland  has negotiated with the EU, then this case law would continue to have effect for the purposes of interpreting any such stand-alone agreement.

For further information

For further information on the Surinder Singh route, including personalised advice, please contact the European Commission’s free legal information service Your Europe Advice.

‘The Surinder Singh Route – Understanding the Law’ first appeared on the EU Rights Clinic’s blog.

New referrals to the EU Court of Justice on Directive 2004/38 from Austria, the Netherlands, Sweden and the UK

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The Court of Justice has registered a number of requests for a preliminary ruling on the interpretation of Directive 2004/38 on the rights of EU citizens and their family members to reside in the EU.

  • Do Female Workers Lose Their Status as Workers When They Leave Work to Look After Their Children?

In Case C-507/12 Jessy St Prix (2013) OJ C 26/32, the UK Supreme Court has referred the issue of whether a woman who temporarily gives up work to take care of her new born child loses the status of “worker” under Article 7(3) of Directive 2004/38.

Jessy St Prix is a 27 year old French teacher. She came to the UK in 2006 and worked for eleven months as a teaching assistant. She then enrolled on a postgraduate teacher’s course in September 2007. After starting the course, she became pregnant. Her child’s birth was expected in early June 2008. She withdrew from her postgraduate course in February 2008 and started working for an employment agency working in nursery schools. In March 2008, when she was almost six months pregnant, the work became too strenuous for her so she stopped this work and looked for part-time work. As none was available, she sought assistance from the state and lodged a claim for income support from the UK authorities. This was refused on the basis that she did not have a right to reside because she was no longer working and she did not retain the status of “worker” since she voluntarily chose to leave the jobs market in the late stages of her pregnancy. Her child was born prematurely a few months later and, as she had no income, she resumed full-time work three months after giving birth. She appealed against the UK’s decision to refuse her claim for social welfare benefits before the UK courts in late 2008. The case has since progressed all the way to the UK Supreme Court which in October 2012 asked the EU Court of Justice in Luxembourg for a preliminary ruling on the interpretation of the concept of “worker” under EU law.

If the Court of Justice follows it previous case law that has given a wide meaning to the concept of “worker” under Article 45 TFEU (see for example Case C-413/01 Ninni-Orasche), we should expect the Court to extend the notion of worker to female workers who – like Jessy St Prix – voluntarily leave the job market to take care of their new born children.

The original reference from the Supreme Court in Jessy Saint Prix v Secretary of State for Work and Pensions [2012] UKSC 49 is available here.

  • Does the Right to Return Home under the Singh and Eind Cases Extend to Recipients of Services?

The Dutch Raad van State has referred two cases on the interpretation of the right of EU citizens to live with their family members in their home country on the basis of having exercised free movement rights in another EU country.

In Case C-457/12 Minister voor Immigratie, Integratie en Asiel and O & B, (2013) OJ C 26/19, the applicants are non-EU family members of EU citizens who have returned to the Netherlands after spending time in Belgium. However, they did not spend a continuous period of time working in another EU country as was the case in Cases C-370/90 Singh and C-291/05 Eind. Instead, applicant B only made regular visits over a period of 16 months to stay with his Dutch partner in Belgium, staying at week-ends and sometimes until the Monday morning. His Dutch partner did not work in Belgium and was only the recipient of services provided in that member state. The Dutch authorities refused B’s application for a residence card as the family member of an EU citizen. The Dutch Ministry of the Interior considered that there was no effective exercise of the right to free movement, since only a continuous period of residence lasting over three months qualifies. Moreover between the time that the Dutch partner returned to the Netherlands and he joined her there, applicant B went to stay for over two years in his native Morocco, during which time the partners married. The Dutch authorities therefore also considered that he has lost any right he might have had to return with his Dutch partner (now wife) to Belgium.

For his part, applicant O claims a right to return home after spending holidays in Spain with his Dutch wife. Although he was issued a residence card by the Spanish authorities, the Dutch courts found that couple were unable to provide evidence of longer stays in Spain. Nonetheless, the referring Court does indicate that O’s wife was only the recipient of services during her holidays in Spain. Again, the Dutch authorities refused to issue O a residence card and considered that there was no effective exercise of the right to free movement, since holidays are not sufficient for this purpose.

It will be interesting to see how the Court answers this tricky reference as it could go either way. On the one hand, the Court is unlikely to hold that a stay of less than three months in another EU country does not consist in the exercise of free movement since it is specifically foreseen by Article 6 of Directive 2004/38. On the other hand, the Court could consider that the right of an EU citizen to return home with his family members only relates to “residence” of over three months rather than a “stay” of less than three months, although no such distinction is made in the Directive. It should be recalled that the rationale behind Singh and Eind was that an EU citizen would  be dissuaded from moving to another EU member state in the first place if he did not have the certainty of knowing that his closest family members would have a right to return with him to his home country and reside there under the same conditions as those that apply to his family when they reside with him in another EU member state. The Court may consider that this dissuasive effect of refusing a right of residence to family members is significantly stronger in respect of residence of over three months rather than short stays of less than three months. In B’s case it is also possible that the Luxembourg judges may choose to side-step the issue altogether by applying Article 16(4) of the Directive by analogy, according to which the right to permanent residence in another EU country is lost after any absence exceeding two years.

With the specific reference to the applicants being recipients of services, the Dutch Court also appears to be inviting the Court of Justice to draw an analogy with Case C-60/00 Carpenter, in which where the Court ruled that EU law granted the right to the Philippine wife of a British provider of cross-border services to live with her husband in the UK.  However, contrary to Mr Carpenter, the applicants in these cases are merely the family members of recipients of services.

For those wanting to read the original reference from the Raad van State in Minister voor Immigratie, Integratie en Asiel and O & B, it is available here.

  •  Does Carpenter Extend to Cross-Border Employees?

In Case C-456/12 Minister voor Immigratie, Integratie en Asiel and S& G (2013) OJ C 26/19, the applicants are non-EU family members of Dutch citizens claiming a right to live in the Netherlands on the basis that their EU relative works in another country as a cross-border worker. Applicant G is the non-EU wife of a Dutch national who works for a Belgian company. He commutes between the Netherlands and Belgium everyday (also known as a “frontier worker”). Applicant S is the mother of a Dutch citizen who works as an employee  for a Dutch company. His work is undertaken mostly in the Netherlands but he also undertakes work in other neighbouring countries at least one day of every working week. In both cases, the Dutch authorities refused to issue a residence card to the applicants on the basis that they were not the family member of an EU citizen who provided cross-border services falling within the scope of the court’s ruling in Case C-60/00 Carpenter, since their EU relatives did not work as self-employed persons but instead worked as employees.

These two cases bear a stronger resemblance to Case C-60/00 Carpenter. In that case the Court had ruled that the EU rules on freedom of establishment provide a right of residence in the UK to the spouse of a British provider of cross-border services.  However, contrary to Mr Carpenter, the EU relatives of the applicants in these cases are employees of companies, not self-employed persons.

The original reference from the Raad van State in  Minister voor Immigratie, Integratie en Asiel and S & G can be found here.

  • Does a special non-contributory benefit under Regulation 883/2004 consist in social assistance within the meaning of Directive 2004/38?

The  Austrian Supreme Court has asked the Luxembourg Court has been asked to explain the concept of “social assistance” under Directive 2004/38. In Case C-140/12 Peter Brey (2012) OJ C 165/12, the CJEU has been asked to confirm whether “Ausgleichszulage” (compensation supplement) is a benefit that falls within the concept of social assistance under Directive 2004/38. In this case, Mr and Mrs Brey who are German nationals decided to permanently relocate to Austria in 2011 because they felt marginalized and mistreated in Germany as a result of their Russian ancestry. Following his move to Austria, Mr Brey continued to receive an invalidity pension of € 862.74 and care allowance of € 225 from the German social security institutions. However, his wife’s income guarantee was withdrawn on account of having moved to Austria. As a result of a reduction in the couple’s income, Mr Brey sought to claim Austrian compensation supplement, which provides a minimum income guarantee to recipients of an old-age pension on a low income. This claim was rejected on the basis that Mr Brey did not benefit from a right of residence in Austria because his income was below the amount needed to be considered as sufficient resources under Article 7(1)(b) of Directive 2004/38.   However, Mr Brey considers that the  payment of Austrian compensation supplement cannot be made conditional upon having a right to reside in Austria. He argues that the supplement is a special non-contributory benefit listed in Annex X of EU Regulation 883/2004 on the coordination of social security and that it is therefore payable to all persons who are “habitually resident” in Austria pursuant to Article 70 of the Regulation.

This case provide a good illustration of a catch 22 situation in which many pensioners of meagre resources who live abroad and depend on support from their country of residence are now finding themselves. Thus Mr Brey cannot claim the Austrian compensatory supplement unless he can demonstrate he has a right to reside; but Mr Brey can only demonstrate a right of residence in Austria if he can show he has sufficient resources, which he would only be able to do if he is granted this compensatory supplement…

The original referral from the Austrian Oberste Gerichtshof can be found here.

*Update* The Advocate General has now issued his opinion in the case.

  • Can Member States require that children over 21 years old demonstrate they have taken all necessary measures not to remain dependent on their EU parents? 

In Case C-423/12 Flora May Reyes (2012) OJ C 355/11, the Court of Justice has again been asked for clarification on the concept of dependence. As in the earlier case dealing with dependence (Case C-1/05 Jia) the reference comes from the Swedish courts. This time the Court is being asked whether an adult child of an EU citizen is required to demonstrate that he has tried to obtain employment or has tried to apply for assistance from his country of origin in order to be considered as the dependent child of an EU citizen having a right to reside under Article 2(2)(c) of the Directive.

New referrals to the EU Court of Justice on Directive 2004/38 from Austria, the Netherlands, Sweden and the UK first appeared on the EU Rights Clinic blog.

EU Rights Clinic and ECAS Secure Release of EU Charter Opt-Out Documents

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With the help of the EU Rights Clinic, ECAS has obtained documents from the European Commission that relate to opt-outs from the EU Charter of Fundamental Rights. The Clinic and ECAS hope that publication of these documents will shed light on the negotiations that concerned the Charter of Fundamental Rights when the Treaty of Lisbon was being negotiated in 2007.

ECAS made the initial request for the documents relating to the UK’s opt-out 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. Having inspected the documents, the Ombudsman recommended in July 2011 that “[t]he Commission should consider giving access to the documents in question or provide valid reasons for not doing so”. Since this recommendation was not followed, the Ombudsman issued a final decision on 17 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 made in December 2012, which covered not only the UK but also Poland and the Czech Republic, the Commission released the contested documents on 31 January 2013.

ECAS and the EU Rights Clinic welcome this as a victory not only for transparency, but also for the moral authority of the European Ombudsman. Moreover, the Commission may be signalling its new commitment to transparency because it has gone beyond the scope of the requests and extended access to more recent documents and a special database.

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, considering that “an opt-out from fundamental rights is hard to sell”. Such a proposal was also supported by the Council’s Legal Service which believed that this would have no practical effect and the Charter would continue to apply to Member States regardless. The Commission disagreed with this interpretation and opposed such a proposal on the grounds that it would create legal confusion and cause the Charter to be “amputated by one of its two legs” by removing explicit references to its application to the Member States. The Commission therefore considered an opt-out was preferable to amending the Charter.

“The documents reveal that the opt-out was the lesser of two evils. Serious proposals were made by the Council Presidency to remove the reference to Member States from the Charter of Fundamental Rights. This suggests that governments cannot be trusted to negotiate on our fundamental rights on their own. It appears that the need to reach an agreement among themselves takes precedence over the maximum protection of our rights. It is indeed a positive development that these documents have been released as this will make it difficult for governments to talk about EU democracy at home and then negotiate in secret in Brussels. This increased transparency is welcome and timely.” said Tony Venables, Director of the European Citizen Action Service.

“The EU Rights Clinic is delighted to have contributed to this important endeavour. Our students worked on drafting letters, reviewing the released documents and putting together the Background Note that explains the contents of these documents and highlights their importance.” explained Anthony Valcke, Legal Supervisor for the EU Rights Clinic.

ECAS and the EU Rights Clinic are now making the documents released by the Commission available to the public as a way of enhancing citizens’ awareness of their EU rights and further contributing to the European Year of Citizens which in 2013 is dedicated to the rights that come with EU citizenship. These documents are accessible on the European Citizens House website (www.citizenshouse.eu). The EU Rights Clinic has produced a Background Note offering an explanation of what is contained within them:

For more information please contact:

– Anthony Valcke, Legal Supervisor EU Rights Clinic, +32 (0)2 641 1721

Ruiz Zambrano considered by Court of Appeal

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The decision of the Court of Appeal of England & Wales in the joined cases Damion Harrison & AB v Secretary of State for the Home Dept [2012] EWCA Civ 1736, 21 December 2012, provides guidance on the application of the principle established by the EU Court of Justice in Case C-34/09 Ruiz Zambrano.

The facts of the case before the Court of Appeal differed from those in Ruiz Zambrano. In the Ruiz Zambrano case, the two Colombian national parents of Belgian children challenged the administrative decision to reject their continued right of residence in Belgium. Their departure from Belgium would have meant that, in practice, their Belgian children would also have been obliged to leave the EU.

In the two joined cases before the Court of Appeal, the Secretary of State for the Home Department ordered the deportation of a non-EU national family member of an EU national, after having committed a serious criminal offence and being unlawfully resident in the UK. The appellant in each case was the non-EU father of a UK national child. The child had a mother who was a UK national (or a UK dual national). The father’s deportation was challenged on the grounds that it would interfere with the family life of the child and that it would, in the words of the CJEU, “have the effect of depriving [the citizen] of the genuine enjoyment of the substance of the rights associated with her status as a Union citizen…” It was argued that, if the appellant were to be deported, the EU citizen (child)’s continued residence would be adversely affected by the non-EU national’s deportation or their quality of life diminished, but in each case it was accepted that the child and partner could remain in the UK. The primary carer, the child’s mother, had a continued right of residence, notwithstanding that it could be financially very difficult for the primary carer to continue to provide for the EU citizen child.

The Court of Appeal takes the view that the Ruiz Zambrano principle only applies where the EU citizen would, in practice, be forced to leave the EU, and not merely where the EU citizen’s quality of life would be diminished. In this respect, Lord Justice Elias observes at [67]-[68]:

“The right of residence is a right to reside in the territory of the EU. It is not a right to any particular quality or life or to any particular standard of living. Accordingly, there is no impediment to exercising the right to reside if residence remains possible as a matter of substance, albeit that the quality of life is diminished. … [T]he CJEU has confirmed in [Case C-256/11] Dereci (paras 67-68) that the fact that the right to family life is adversely affected, or that the presence of the non-EU national is desirable for economic reasons, will not of themselves constitute factors capable of triggering the Zambrano principle.”

The Court of Appeal therefore considered that the principle enunciated in Ruiz Zambrano  was acte claire and would not refer the question for a preliminary ruling by the CJEU.

Reported by Uddalak Datta, Your Europe Advice

UK amends its residence rules

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The UK Border Agency has announced that new rules came into force on 8 November which amend the Immigration (EEA) Regulations 2006. These Regulations implement Directive 2004/38 in the UK and govern the conditions of entry and residence of EU citizens and their family members.

The changes are intended to:

  • ensure the UK’s Regulations comply with the EU Court of Justice’s rulings in Case C-83/11 Rahman by removing the condition that ‘extended family members’ needed to reside in the same country as the EU citizen to whom they are related;
  • incorporate new rules on entry and residence of primary carers of British citizens to ensure compliance with Case C-34/09 Ruiz Zambrano and will introduce a new application form for those cases;
  • tighten up the rules on primary carers and ‘derivative rights’, and
  • tighten up the rules on appeal rights for unmarried partners in a durable relationship.

The new rules are contained in the Immigration (European Economic Area) (Amendment) (No 2) Regulations 2012 (SI No 2560) and are explained further by the UKBA here.

This is the second time that the UK’s rules on entry and residence of EU citizens and their family members have been amended this year. In June 2012, changes were made to the Regulations to reflect developments arising from the EU Court of Justice’s rulings in Cases C-200/02 Chen (primary carer of EU minors), C-310/08 Ibrahim and C-480/08 Teixeira (primary carer of children in education of former workers), C-162/09 Lassal (calculation of 5 year period for the purposes of permanent residence), C-325/09 Dias (effect of presence without having a right of residence on a claim for permanent residence), C-434/09 McCarthy (dual nationality) and Joined Cases C-424/10 & 425/10 Ziolkowski and Szeja (effect of periods of residence acquired under national law on a claim for permanent residence).

The first set of amendments are explained further by the UKBA here and here and were contained in the Immigration (European Economic Area) (Amendment) Regulations 2012 (SI No 1547).

The EU Rights Clinic team will be producing a consolidated version of the Regulations which will be posted to this website in due course.