Surinder Singh route for family members of British citizens

December 10, 2013

dreamstime_s_26458467Back in 1992 the ECJ ruled in Surinder Singh Case C-370/90 that EU free movement law applies to EEA nationals returning to their country of origin after exercise of treaty rights as a worker or a self-employed person in another Member State. Accordingly, EU rights were extended to the spouse of the EU national.

The question addressed to the Court by the UK government was formulated as follows:

“Where a married woman who is a national of a Member State has exercised Treaty rights in another Member State by working there and enters and remains in the Member State of which she is a national for the purposes of running a business with her husband, do Article 52 of the Treaty of Rome and Council Directive 73/148 of 21 May 1973 entitle her spouse (who is not a Community national) to enter and remain in that Member State with his wife?”

The Court ruled that the spouse must enjoy at least the same rights as would be granted to him or her under Community law if his or her spouse entered and resided in the territory of another Member State.

The judgment also refers to the argument raised on behalf of Mr Singh that non-discrimination rules apply across all beneficiaries of EU law, and thus when EU rights are engaged by British citizens and their family members they should effectively be entitled to equal treatment to nationals of other EEA states and their family members respectively.

The Court did not comment on this argument, but the judgment generally supports it.

Perhaps by oversight, Surinder Singh principle was not given effect in EU Citizenship Directive, which consolidated free movement rights of EEA nationals and their family members. However, it remained good law as part of the jurisprudence of the ECJ and was incorporated into the Immigration (European Economic Area) Regulations 2006 under Regulation 10. Regulation 10 rightly extended the ambit of the rule from the spouse to family members of British citizens.

There was little recourse to this provision for dependent parents of British citizens until the changes in the Immigration Rules in July 2012, which in effect eliminated the right to family reunion for dependent parents other than in most extreme compassionate circumstances.

Not surprisingly, quite a few British citizens of non-EEA origin found themselves torn between dependent parents in their country of origin and their settled life, and perhaps children, in the UK. Some of them found it possible to exercise EU rights in another Member State by working temporarily and possibly at a low pay, merely to engage their free movement rights and extend these rights to their family members.

In Akrich, C-109/01, the ECJ confirmed that the purpose of the exercise of Treaty Rights was not essential. Even if the rights were exercised with the sole purpose of giving advantage to a family member, it was a legitimate way of obtaining the advantage.

Apparently, the Secretary of State had a different view on the issue.

The amendments to the EEA regulations coming into effect on 1 January 2014 apparently attempt to exclude these and many other applicants by introducing a new requirement that the British citizen has to demonstrate that his or her “centre of life” was transferred to the EEA Member State where he or she exercised Treaty rights.

The Regulations add that “transfer of the centre of life” requirement will be assessed by, among other things, length of residence in the EEA State, location of principal residence, and, even more curiously, the degree of integration in the EEA State.

A propos the latter requirement, if knowledge of the language of the EEA state is to count towards the level of integration, Hungary may present a challenge for some of us. I wonder if the Hungarians will pick up on indirect discrimination and complain to the Commission. I think I would.

Generally, it seems to me that it might be difficult to meet the “centre of life” test for someone who moves to another EU Member State in order to take up a contract of employment (and then bring in dependent aging parents!), leaving in the UK a house, three children at school, a wife, a dog, a cat… Perhaps, it will be easier for someone whose “centre of life” is work, as opposed to other things one might think of. And by the by, it is an unexpectedly poetic concept with strong sociological, anthropological, cultural, and philosophical connotations and a far cry from the relentlessly dry Appendix FM (another summit of the draftsman’s achievement for anyone who is lucky enough to be unfamiliar with it).

Jokes aside, “centre of life” test is miles away from the principle established in Surinder Singh judgment which says that having engaged EU rights in another country, British citizens should enjoy the same rights as any national of an EEA state in the UK.

On a practical level, we anticipate that principal residence is to be understood as principal residence for tax purposes, period of residence as anything beyond six months, and integration through employment to be sufficient to avoid the need of expert evidence from psychologists or social workers.

Of course, it is only my guess for what it’s worth.

But for sure, if you are thinking of applying and not sure whether to do in now or later, do it now!

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