Some European Union member states are anxious that their own citizens should not circumvent their own sometimes very tough immigration rules by relying instead on EU free movement law. The UK is one such, and has been right from the start. At paragraph 24 of Surinder Singh itself, the court said as follows:
As regards the risk of fraud referred to by the United Kingdom, it is sufficient to note that, as the Court has consistently held, … the facilities created by the Treaty cannot have the effect of allowing the persons who benefit from them to evade the application of national legislation and of prohibiting Member States from taking the measures necessary to prevent such abuse.
EU law states that it does not extend to cover abuse. But what constitutes abuse in EU law?
The leading case on abuse of treaty rights is an otherwise obscure agricultural subsidy case called Emsland‑Stärke (Case C‑110/99) in which the Court of Justice held that:
A finding of an abuse requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the Community rules, the purpose of those rules has not been achieved … It requires, second, a subjective element consisting in the intention to obtain an advantage from the Community rules by creating artificially the conditions laid down for obtaining it.
This has subsequently been approved as a general statement of of what might comprise abuse of treaty rights generally and is repeated verbatim in the important case of O v Netherlands Case C‑456/12 (discussed in this previous blog post: Surinder Singh immigration route).
Where abuse or fraud is alleged, it is for he who alleges to prove the allegation: the Home Office would need to prove that the application is abusive.
It is clear that there are two requirements to establish abuse and that both must be proven:
- Despite appearing to satisfy EU rules, in fact the rules are not really met
- There was a deliberate intention artificially to make it appear as if the rules were satisfied.
We will briefly look at these in turn in the context of Surinder Singh. There is clearly scope for the UK Home Office to refuse an application in certain circumstances on the grounds of it being abusive. There is no known Home Office guidance on abuse in the context of Surinder Singh cases (a recent FOI request drew a blank on this), so what follows is informed speculation that is likely to be of more relevance on appeal to a judge rather than to a discussion with an immigration officer at border control on entry to the UK.
Rules not really met
The Home Office might try to assert in a given case that while free movement rules were met in form, they were not satisfied in substance. For example, it might be said that while the British citizen might have held a job, it was too short term to be a genuine exercise of treaty rights.
This is indeed an argument that has been used by immigration officials to refuse some Surinder Singh applications on arrival at border control. Such refusals are based on the unlawful “centre of life” test, though, and O v Netherlands probably provides a complete answer as well as posing the question: anything longer than three months is genuine and achieves the purpose of the free movement rules.
“Genuine and effective”
It was established long ago in a slightly different context that for work to qualify as work in EU law, it must be “effective and genuine”. On the face of it this seems to be a similar idea to that of the purpose of the rules not being achieved, although at the same time it is notable that the court did not in O v Netherlands use the “genuine and effective” test but adopted the very different abuse test.
The use of the words “genuine and effective” in EU free movement law originate in an old case called D.M. Levin v Staatssecretaris van Justitie (Case 53/81), where the Court of Justice concluded:
1 . The concepts of “worker” and “activity as an employed person” define the field of application of one of the fundamental freedoms guaranteed by the Treaty and, as such, may not be interpreted restrictively .
2. The provisions of Community law relating to freedom of movement for workers also cover a national of a Member State who pursues, within the territory of another Member State, an activity as an employed person which yields an income lower than that which, in the latter state, is considered as the minimum required for subsistence, whether that person supplements the income from his activity as an employed person with other income so as to arrive at that minimum or is satisfied with means of support lower than the said minimum, provided that he pursues an activity as an employed person which is effective and genuine.
3. The motives which may have prompted a worker of a Member State to seek employment in another Member State are of no account as regards his right to enter and reside in the territory of the latter state provided that he there pursues or wishes to pursue an effective and genuine activity.
The Levin case is an important one and establishes that part time work also counts as “work” for the purposes of free movement law. The court elaborated a little on the meaning of effective and genuine, though:
It should however be stated that whilst part-time employment is not excluded from the field of application of the rules on freedom of movement for workers, those rules cover only the pursuit of effective and genuine activities, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary. It follows both from the statement of the principle of freedom of movement for workers and from the place occupied by the rules relating to that principle in the system of the treaty as a whole that those rules guarantee only the free movement of persons who pursue or are desirous of pursuing an economic activity.
One argument open to the Home Office would be that a British citizen who has moved to another Member State has only engaged in an activity which is not “effective and genuine” and which instead is “purely marginal and ancillary”. For example, a very short period of work or claimed self employment that generated little or no income would potentially be vulnerable to such an accusation.
It can be argued that the three months test in O v Netherlands is a complete answer to this question of whether the exercise of the treaty right (work, self employment, etc) is genuine and effective: if it goes on for longer than three months and is more than marginal and ancilliary then it is. This argument is a powerful one before a judge. It may be of less concern to an officious immigration officer who is concerned that the British citizen and family member are dodging UK immigration law. Indeed, aggressive quoting of law and policy at immigration officials is more likely to antagonise and provoke them than to achieve the desired outcome.
It should also be borne in mind that the O v Netherlands case does permit refusals based on abuse. The concept of abuse is not likely to be interpreted by the courts as being so narrow that no cases might ever conceivably be refused under it.
It may be useful to recall the third of the conclusions above in the Levin case: the motives of the British citizen in seeking work in another Member State are “of no account” provided that he there “pursues or wishes to pursue an effective and genuine activity”.
It should also be recalled that there are two elements that must be established by the Home Office to prove abuse and that both must be established.
If it can be shown that the exercise of treaty rights did achieve the purpose of the free movement rules and was effective and genuine then the question of intention is irrelevant. Further, the intention must be artificially to make it appear as if the rules were satisfied. If the activity was more than marginal and ancillary and was pursued for three months then the rules were satisfied and there is no scope for a refusal on the basis of abuse.
It is for the Home Office to prove a deliberate intention of abuse. The standard of proof is what lawyers and judges call the civil standard of proof, which is to show that it is more likely than not. At border control, a front line immigration official in a bad mood may well allege fraud on the basis of circumstantial evidence and supposition and decide that it is proven to the required standard, particularly where there is no in-country right of appeal and the third country national can easily and quietly be refused entry and removed.
In the context of a tribunal or court case, it will be hard for the Home Office to prove deliberate intention artificially to create an appearance of exercise of free movement rights in the absence of an admission from the British citizen or their family member. Context such as previous failed UK law immigration applications might be thought to point to a deliberate intention, though.
Home Office current approach
The key to such allegations of abuse and consequent denial of entry is likely to be a suspicion on the part of a given immigration official that the British citizen and family member are seeking to circumvent UK immigration rules. If we undertake the unpleasant task of trying to place ourselves in the shoes of a UK immigration official, possible risk indicators might include:
- Not applying in advance for a family permit
- Poor quality documentation or general lack of evidence
- Stating in answers to questions that the purpose of going abroad was to return under EU law not UK law
- Short periods of residence and/or exercise of treaty rights abroad
- Previous failed immigration applications under UK law
- Low income or savings suggesting that UK law family life rules on the minimum income requirement might be unachievable, particularly if the low income or savings relate to the previous period of residence in the UK
These potential indicators are based on a combination of supposition and known cases of refusal. There’s not much that can be done if they apply in a given case, but longer periods of residence are less likely to attract refusal than short ones of just three months, so it may be wise if at potential risk of refusal to spend a longer period exercising those treaty rights.
This blog post is based on an extract from my ebook on Surinder Singh. The ebook includes examples and further material.