The ‘Surinder Singh route’ has become well known to British citizens seeking to be reunited with their family members. The toughening up of UK immigration rules in July 2012 – particularly the introduction of the minimum income rule and its labyrinthine documentary requirements and the awful elderly dependent relative rules – is resulting in an increasing number of split families. To understand their misery and anguish, take a look at some of the comments left here on this blog or visit the BritCits website. As recently reported, over 3,000 families had applications on hold by the Home Office pending the outcome of a test case, and that was only as of the end of December 2013. That was at least 6,000 adults and it is unknown how many of those couples have children. The numbers can only have increased since then.
The old Court of Justice of the European Union case of Surinder Singh provides a potential means of bypassing the harsh UK immigration rules by relying instead in European Union free movement laws. But a new European case, O and B v The Netherlands Case C‑456/12, brings some good news and a bit of bad news.
Essentially, the principle established by the Surinder Singh case is that the right in European Union law for a person to move from one Member State to another must include a right to return, otherwise a person would be deterred from moving in the first place. If you are exercising your right to return to your home Member State you are therefore doing so under European Union law. Therefore… it is European Union law and not the domestic rules of your own Member State that also applies to any family members. In the judgment itself in Surinder Singh Case C-370/90 the court held that free movement laws:
require a Member State to grant leave to enter and reside in its territory to the spouse, of whatever nationality, of a national of that State who has gone, with that spouse, to another Member State in order to work there as an employed person as envisaged by Article 48 of the Treaty and returns to establish himself or herself as envisaged by Article 52 of the Treaty in the State of which he or she is a national. A 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 another Member State.
There is a very good summary of the background and facts to Surinder Singh over at the Kent EU Rights Clinic. It is now slightly out of date, though, as there have been developments since then (this blog post was last updated 21 November 2014).
New case: O and B v The Netherlands
The most important change since Surinder Singh itself is the new case of O and B v The Netherlands Case C-456/12, handed down by the Grand Chamber of the Court of the European Union on 12 March 2014. Without much mentioning Surinder Singh, the judgment completely re-writes the legal basis of the earlier case and sets out important and binding new guidance.
The actual conclusion is as follows:
Article 21(1) TFEU must be interpreted as meaning that where a Union citizen has created or strengthened a family life with a third‑country national during genuine residence, pursuant to and in conformity with the conditions set out in Article 7(1) and (2) and Article 16(1) and (2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, in a Member State other than that of which he is a national, the provisions of that directive apply by analogy where that Union citizen returns, with the family member in question, to his Member State of origin. Therefore, the conditions for granting a derived right of residence to a third‑country national who is a family member of that Union citizen, in the latter’s Member State of origin, should not, in principle, be more strict than those provided for by that directive for the grant of a derived right of residence to a third‑country national who is a family member of a Union citizen who has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national.
To help you unpick this, the reference to TFEU is to the Treaty on the Functioning of the European Union and concerns the fundamental right of free movement around the EU by citizens of the EU. The references to Directive 2004/38/EC can be traced in the text of the Directive here. Article 7 is entitled “Right of residence for more than three months” and confers a right of residence on EU citizens who are exercising their Treaty rights to work, be self employed, self sufficient or study. Article 16 concerns the right of permanent residence, acquired after 5 years of lawful residence.
The following important points emerge:
Regarding abuse, the judgment states that:
“the scope of Union law cannot be extended to cover abuses… Proof of such an abuse requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the European Union rules, the purpose of those rules has not been achieved, and, secondly, a subjective element consisting in the intention to obtain an advantage from the European Union rules by artificially creating the conditions laid down for obtaining it.”
The topic of abuse is dealt with in more detail in the full ebook (see bottom of post). EU law states that the intention behind exercise of Treaty rights is irrelevant (see Akrich Case C-109/01) and abuse requires the accuser to prove both that the rules for a right are not really met and that there was a deliberate intention artificially to make it appear as if the rules were satisfied (Emsland‑Stärke Case C‑110/99).
UK Government’s interpretation of Surinder Singh
The UK Government’s official interpretation of the effect of Surinder Singh is set out in the Immigration (European Economic Area) Regulations 2006 at regulation 9 (as amended as of 1 January 2014):
(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a British citizen as if the British citizen (“P”) were an EEA national.
(2) The conditions are that–
(a) P is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom;
(b) if the family member of P is P’s spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in the EEA State before the British citizen returned to the United Kingdom; and
(c) the centre of P’s life has transferred to the EEA State where P resided as a worker or self-employed person.
(3) Factors relevant to whether the centre of P’s life has transferred to another EEA State include–
(a) the period of residence in the EEA State as a worker or self-employed person;
(b) the location of P’s principal residence;
(c) the degree of integration of P in the EEA State.
(4) Where these Regulations apply to the family member of P, P is to be treated as holding a valid passport issued by an EEA State for the purpose of the application of regulation 13 to that family member.
Someone is at the time of writing doing a very good public service job of maintaining a free and updated version of the regulations here. Essentially, if the conditions in this paragraph are met then the British citizen will be treated by the UK Government as an EU citizen and can rely on the family reunion rules that apply to EU citizens.
However, it can be seen immediately that the ‘centre of life’ test has no place in the new case of O and B v The Netherlands. The test originates in the Advocate General Opinion that proceeded final judgment in O and B v Netherlands. Basically the UK Government jumped the gun and rushed to adopt a test that was ultimately not adopted by the final judgment of the Court. The EU Commission is now investigating the UK for adopting non compliant rules and is very 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 UK’s official position, expressed through Presenting Officers at court, is that the centre of life test is compliant with O and B v Netherlands. That is clearly wrong and the UK will eventually have to amend the regulations, but that might not happen for quite some time. In the meantime, applications which fail under the regulations will need to be appealed and immigration tribunal judges will have to apply O and B v The Netherlands directly.
Centre of life test
On a pragmatic basis, it will be far, far easier if an applicant can satisfy the centre of life test requirements: it is the difference between an application being granted by the Home Office and having to appeal to an immigration judge, at some inconvenience, stress and expense.
The part of the regulations referring to ‘centre of life’ were amended into the regulations as of 1 January 2014: it is new. Guidance recently emerged about the UK Government interpretation of what its own regulations mean.
An an aside, it is notable that the training slides also released are far more liberal than the guidance itself, and the training slides far closer to actual EU law than the guidance.
On the question of length of residence the guidance starts well but quickly tapers off in the second paragraph:
8. In general, the longer the British citizen has resided in another EEA member state as a worker or self-employed person, the more likely it is that they have transferred the centre of their life to that member state.
9. For example, a British citizen who has lived and worked in another member state for a period of two years is more likely meet the requirement of regulation 9(2)(c) than a British citizen who was employed in another Member state for a period of four months.
It turns out that four months is in fact more than sufficient, as long as family life was created or strengthened in that time.
On principal residence the guidance is basically way off the mark:
10.The principal residence is the place and country where the British citizen’s life is primarily based.
11.For example, a British citizen worked in France for three months, staying in a hotel during the week and returning to their main home in the UK at the weekends. In this case they are unlikely to meet the requirements of regulation 9(2)(c) as their principal residence would be considered to be the UK.
This is almost the exact opposite of the O and B case, which states that residence in the EU member state at weekends and holidays will not be sufficient. It looks like the example given would in fact satisfy the test in O and B because the person concerned would be exercising their Treaty rights abroad, even if sometimes returning to the UK.
On degree of integration the guidance states:
12.When considering the degree of integration in another EEA member state, relevant factors may include:
a. Does the British citizen have any children born in the host member state? If so, are the children attending schools in the host member state?
b. Does the British citizen have any other family members resident in the host member state?
c. Has the British citizen immersed themselves into the life and culture of the host member state? For example, have they bought property there? Do they speak the language? Are they involved with the local community?
The more of these factors that are present on a case, the more likely the British citizen is to be considered as having transferred the centre of their life.
The same three month hotel stay example is given as an example of a person with a low degree of integration. The following is given as a person with a high degree of integration:
For example, a British citizen is working in France, is fluent in French and has bought a house there. Their children were born in France and are educated in a French school where the British citizen sits on the school council. In this example it is likely that the British citizen has moved the centre of their life to France.
It is salutary to consider how many British citizens resident in the south of Spain might meet this integration test.
Returning to the guidance, it does at least conclude with a clear statement that the facts of the case have to be considered:
It should be noted that the factors set out in regulation 9(3) are not determinative. The question as to whether the British citizen would be deterred from exercising their free movement rights were their spouse/civil partner refused, must be determined having regard to all relevant factors.
Where does that leave us?
So, we finally have a definitive answer on what is required for Surinder Singh to be engaged. The UK Home Office interpretation turns out to be completely wrong, unsurprisingly. To recap, the requirements are:
- At least three months residence in another EU member state
- Creating or strengthening family life during that time (living together ought to count)
When the Home Office does issue new guidance and eventually amend the regulations, though, it would not be surprising if further unlawful attempts were made to deny EU law rights.
For more detail, including analysis of Home Office reasons for refusal in Surinder Singh cases, see the full ebook:
Comprehensive examination of law, policy and practice around the "Surinder Singh route" including hints and tips on avoiding problems. Foreword by Sonel Mehta of BritCits.