The EU Commission is fully au fait with the amendments the UK made to its EU free movement rules in January 2014 and has stated in a recent letter that the UK rules are incompatible with EU law. Further, the EU intends to contact the UK authorities to seek their “observations” on the incompatibility, the first step in pursuing infringement proceedings against the UK.
In a letter shared with me dated 7 August 2014 the EU Commission writes to the family member of a British citizen. After moving to Ireland for several months and working there, they moved back to the UK. An EU right of residence was denied to the family member on the grounds that the couple had not transferred their “centre of life” to Ireland, a test that was amended by the UK Government into the Immigration (European Economic Area) Regulations 2006 on 1 January 2014.
For background, see this detailed blog post and the more up to date ebook. In short, Surinder Singh is an old case in the European Court of Justice that established that a citizen of an EU Member State can leave their home country under EU law and can therefore also return under EU law, and therefore that the rules that apply to any family members on re-entry to the home Member State are therefore EU rules. Where domestic immigration rules are very strict, as in the UK, this allows the family member to rely instead on more humane EU rules. Many British families have made use of this EU free movement right to keep their families together. On 1 January 2014 the UK amended its rules interpreting Surinder Singh to require that the British citizen moving abroad transfers their “centre of life” to the country in question. This was always an additional gloss on Surinder Singh and that was made crystal clear in March 2014 when the Court of Justice issued a new judgment on the issue, the case of O and B v Netherlands Case C‑456/12, which applies a very different and far simpler test of residence and exercise of Treaty rights for at least three months.
The EU Commission is quite clear that the UK approach is incompatible with EU law:
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 O and B, in particular where 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.
The letter goes on:
The Commisson envisages contacting the UK authorities shortly in relation to the January amendment of Regulation 9 of the 2006 Regulations and asking for their observations on the compliance with EU law on free movement of EU citizens, as interpreted by the Court of Justice.
You can see a full anonymised copy of the letter here. If or when I hear more, I’ll post up further information on the blog. In the meantime, do drop me a line with any examples of decisions on Surinder Singh by immigration officials or judges.