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  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.