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.
This is a very great information,it very useful and it will enhance the knowledge of many,thanks very much for the write-up.
The Upper Tier Tribunal, Mr Haddon-Cave, J and Kopieczek, have just applied Surinder Singh Principles to extended family members (unmarried partner). See:
http://uk-immigration-blog.com/2014/10/21/judges-thwart-uk-governments-attempts-to-make-british-second-class-citizens-surinder-singh-applied-to-extended-family/
Thank you, A. Valckle 🙂
The new rules are contained in the Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2013 (SI No 3032), which can be found here. The official Explanatory Memorandum can be found here and the new rules are explained at paragraphs 7.11 to 7.12. As far as is known, the UK Border Agency’s European Operational Policy Team has yet to issue a new notice on the rules.
Very helpful advices here; thank you all. Did any one find out for sure what are the new regulations? I just checked on home office’s site and as usually, there’s nothing there… Thank you
This state of affairs has arisen as a result of the draconian immigration rules on family reunification that were brought into force in 2012. Sadly, this situation is not limited to the UK.
In her Opinion in Cases C-456/12 and C-457/12, AG Shaprston made the following remarks concerning the immigration rules in the Netherlands that also make it difficult for nationals to engage in reunification with non-EU family members:
“86. Why a Member State would wish thus to treat its own nationals less favourably than other EU citizens (who, except for their nationality, might very well be in identical or similar circumstances) is curious. So is the fact that, by denying residence, that Member State might be at risk of de facto ‘expelling’ its own nationals, forcing them either to move to another Member State where EU law will guarantee that they can reside with their family members or perhaps to leave the European Union altogether. Such a measure sits oddly with the solidarity that is presumed to underlie the relationship between a Member State and its own nationals. It is also difficult to reconcile with the principle of sincere cooperation that, in my view, applies between Member States just as it does between Member States and the Union.”
Since this situation can only ultimately be reversed by legislation to give the same rights to nationals, we would invite all those affected by such rules to raise the matter with their Member of Parliament and their Member of European Parliament and ask them to lobby for changes to the UK immmigration rules.
It seems the government is making it much harder to follow the Surinder Singh route to bring a Non EEA spouse into the UK..Why do they hate non EEA spouses so much.?
Helena, the case law on reverse discrimination which is summarized here ( http://www.amazon.co.uk/Reverse-Discrimination-Law-European-Monographs/dp/9041127518/ref=sr_1_1?s=books&ie=UTF8&qid=1387106972&sr=1-1&keywords=9041127518 ) shouts against your argument.
The UK obviously is trying to walk on the edge of the Directive 2004/38 and it must be challenged to see whether a center of residence based constrains/test applicable in taxation cases can be applied in freedom of movement cases.
A dual French/British citizen will – for the purposes of the UK’s Immigration (EEA) Regulations 2006 – only be considered as holding British citizenship by the UK authorities (as per the definition of “EEA national” under regulation 2 as amended by SI 2012 No 1457).
When that dual national returns to the UK after having worked in France, that person will then fall within the scope of regulation 9 as the dual national is “residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom”.
Moreover the Court in McCarthy (Case C-439/09) ruled that “in so far as the [dual national] has never exercised his right of free movement and has always resided in a Member State of which he is a national, that citizen is not covered by the concept of ‘beneficiary’ for the purposes of Article 3(1) of Directive 2004/38, so that that directive is not applicable to him [in his country of nationality]”.
The reverse must therefore also be true: a dual national who has exercised his right of free movement is covered by the concept of ‘beneficiary’ for the purposes of Article 3(1) of Directive 2004/38 in both his countries of nationality.
You say, “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.” But surely, if you’re a dual EEA/UK citizen temporarily living and working in the EEA country of which you are a citizen, this doesn’t count as exercising treaty rights, correct?
The AG’s Opinion in Cases 456/12 and C-457/12 is interesting in this respect because she suggests a different approach:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62012CC0457:EN:HTML
“122. Whether the third country national family member can claim such a right in the EU citizen’s home Member State depends on the same three variables that initially formed the basis for establishing derived rights for third country nationals under EU law. These are:
– the family connection with the EU citizen;
– the EU citizen’s exercise of rights of free movement and
– the causal link between the residence of the third country national and the EU citizen’s exercise of rights of free movement.
123. Assessment of those criteria does not automatically lead to a simple ‘yes’ or ‘no’ answer. The magnitude of any restriction on the right of free movement may vary considerably depending on, for example, the closeness of the family connection. At the same time, the relevance of that connection and dependency to the EU citizen’s choice as to whether or not to exercise the right of free movement can similarly vary greatly. A restriction of that choice exists if it is shown that denying the third country national family member residence may plausibly cause the EU citizen to move, to cease to move or to abandon the real prospect of moving.”
It will be interesting to see how the Court eventually rules on this.
It is a helpful summary of relevant case law of the ECJ. I think that introduction of “centre of life” test is contrary to the principle established in Surinder Singh case, as it clearly means that family members of British citizens would not be given equal treatment to what they could expect in other EEA countries. And imagine introduction of the same test for EEA nationals before accepting that they are exercising Treaty rights! The whole idea of free movement, in my view, is to give freedom to work in other countries without burning the bridges, cutting off ties, or transferring centre of life…
Thank you. I’m glad you find the post is useful!
Thanks for this update… I was about to convey my own thoughts on this, but I think you’ve summed it up fantastically. I’ll therefore put a pingback to here from the blog. 🙂