(mirrored from Facebook post on changes to the Surinder Singh route, 11/Dec/2013) (the original post is here https

//!!!"facebook"com/notes/eea#$isa#eu#free# mo$ement/ne!#ss#rules#%#dec#2013/&%'0(13))()')1& ) The New Rules

This is a document outlining the new rules which were announced on 5 the December 2013.

First of all no one can really gi e any definiti e ad ice regarding how these new rules will be im!lemented because they will not be incor!orated until 1 "anuary 201#. $e will %ust ha e to wait until the &ew 'ear to see if anyone is refused a Family (ermit)*ode 1+ because they ha e failed to com!ly with this new inter!retation of ,egulation -.

1.

Legislation laid before Parliament.

.f you wish to read the whole document it can be found here

htt!/))www.legislation.go .u0)u0si)2013)3032)made1 utm2content3buffer#1#3#4utm2source3buffer4utm2medium3twitter4utm2cam!aign35uff er

and here

htt!/))www.legislation.go .u0)u0si)2013)3032)!dfs)u0si2201330322en.!df

The !art that in !articular a!!ears to affect those wishing to 66 is as follows/7 89if you wish to know what this has replaced see the end of this document:

5. For regulation -; substitute< Family members of British iti!ens

". 81: .f the conditions in !aragra!h 82: are satisfied; these ,egulations a!!ly to a !erson who is the family member of a 5ritish citi=en as if the 5ritish citi=en 8(: were an >>+ national. 82: The conditions are that<

8a: ( is residing in an >>+ 6tate as a wor0er or self7em!loyed !erson or was so residing before returning to the ?nited @ingdomA

8b: if the family member of ( is (Bs s!ouse or ci il !artner; the !arties are li ing together in the >>+ 6tate or had entered into the marriage or ci il !artnershi! and were li ing together in the >>+ 6tate before the 5ritish citi=en returned to the ?nited @ingdomA and

8c: the centre of (Bs life has transferred to the >>+ 6tate where ( resided as a wor0er or self7 em!loyed !erson.

83: Factors rele ant to whether the centre of (Bs life has transferred to another >>+ 6tate include<

8a: the !eriod of residence in the >>+ 6tate as a wor0er or self7em!loyed !ersonA

8b: the location of (Bs !rinci!al residenceA

8c: the degree of integration of ( in the >>+ 6tate.

8#: $here these ,egulations a!!ly to the family member of (; ( is to be treated as holding a alid !ass!ort issued by an >>+ 6tate for the !ur!ose of the a!!lication of regulation 13 to that family member..

#.

$%$& T& '((&$P'N) L%*+,L'T+&N

This can be found here/

htt!/))www.legislation.go .u0)u0si)2013)3032)!dfs)u0siem2201330322en.!df

The !art relating to 66 and ,egulation - is/7

D. Family members of 5ritish *iti=ens

C.11 (aragra!h 5 of the 6chedule to the ,egulations addresses the trans!osition of the %udgment of the *">? in case *73C0)-0 6ingh. The Directi e; and by eDtension the 200E ,egulations; does not normally go ern the legal situation of citi=ens li ing in their own country of nationality 8which is an internal situation:. Fne eDce!tion to this rule was established by 6ingh; and a!!lied in case *72-1)05 >ind. Those cases !ro ide that non >? family members of >? nationals who ha e wor0ed in another member 6tate; may retain their free mo ement rights u!on return to the >? citi=enBs member 6tate of nationality. These ,egulations amend the rele ant Gualifying criteria in the 200E ,egulations which gi e effect to this %udgment. The new regulation - of the 200E ,egulations introduces a reGuirement that the 5ritish citi=en must ha e transferred the Hcentre of their lifeB to another member 6tate before their family members can benefit from the 6ingh !ro isions. $hether or not a 5ritish citi=en has transferred the centre of their life to another member 6tate will be assessed by reference to a number of criteria; including the length of residence; the degree of integration and whether or not the 5ritish citi=en has mo ed their !rinci!al residence to that other member 6tate.

C.12 These changes ha e been made to ensure that there has been a genuine and effecti e use of free mo ement rights in the other member 6tate before such rights may a!!ly by analogy u!on return to the ?@. The 6ingh %udgment sought to !re ent a !ossible deterrent to the eDercise of free mo ement rightsA such a deterrent can only occur if the 5ritish citi=en intends to eDercise rights genuinely and effecti ely in another member 6tate. This !aragra!h will also ha e the effect of !re enting abuse by those 5ritish citi=ens who mo e tem!orarily to another member 6tate in order to circum ent the reGuirements of the usual immigration rules for their family members u!on return to the ?@.

3. .t would a!!ear that these changes are as a result of the following guidelines; and in !articular the guideline regarding abuse; astonishingly issued in 200-I /

8+nyone wishing to read the full guidelines this can be found here / htt!/))eur7leD.euro!a.eu)JeD?ri6er )JeD?ri6er .do1uri3*>J>K/5200-D*0313/>&/&FT :

(ommuni ation from the (ommission to the %uro-ean Parliament and the (oun il on guidan e for better trans-osition and a--li ation of .ire ti/e #0012342%( on the right of iti!ens of the 5nion and their family members to mo/e and reside freely within the territory of the $ember ,tates

#.3. Fther forms of abuse +buse could also occur when >? citi=ens; unable to be %oined by their third country family members in their Lember 6tate of origin because of the a!!lication of national immigration rules !re enting it; mo e to another Lember 6tate with the sole !ur!ose to e ade; u!on returning to their home Lember 6tate; the national law that frustrated their family reunification efforts; in o0ing their rights under *ommunity law. The defining characteristics of the line between genuine and abusi e use of *ommunity law should be based on the assessment of whether the eDercise of *ommunity rights in a Lember 6tate from which the >? citi=ens and their family members return was genuine and effecti e . .n such case; >? citi=ens and their families are !rotected by *ommunity law on free mo ement of !ersons. This assessment can only be made on a case7by7case basis. .f; in a concrete case of return; the use of *ommunity rights was genuine and effecti e; the Lember 6tate of origin should not inGuire into the !ersonal moti es that triggered the !re ious mo e. $hen necessary; Lember 6tates may define a set of indicati e criteria to assess whether residence in the host Lember 6tate was genuine and effecti e . &ational authorities may in !articular ta0e into account the following factors/ 7 the circumstances under which the >? citi=en concerned mo ed to the host Lember 6tate 8!re ious unsuccessful attem!ts to acGuire residence for a third country s!ouse under national law; %ob offer in the host Lember 6tate; ca!acity in which the >? citi=en resides in the host Lember 6tate: A 7 degree of effecti eness and genuineness of residence in the host Lember 6tate 8en isaged and actual residence in the host Lember 6tate; efforts made to establish in the host Lember 6tate; including national registration formalities and securing accommodation; enrolling children at an educational establishment: A 7 circumstances under which the >? citi=en concerned mo ed bac0 home 8return immediately after marrying a third country national in another Lember 6tate: .

The abo e criteria should be considered !ossible triggers for in estigation; without any automatic inferences from results or subseGuent in estigations. .n assessing whether the eDercise of the right to mo e and reside freely in another Lember 6tate of the >? was genuine and effecti e; national authorities may not rely on a sole attribute but must !ay due attention to all the circumstances of the indi idual case. They must assess the conduct of !ersons concerned in the light of the ob%ecti es !ursued by *ommunity law and act on the basis of ob%ecti e e idenceME5N. ". returns home from another Lember 6tate with 6.; his third country s!ouse. 6. unsuccessfuly attem!ted twice to acGuire residence in ".Bs Lember 6tate. ". continued to wor0 home during his alleged residence in another Lember 6tate. The authorities contact the authorities of the host Lember 6tate and find out that " . returned home only after three wee0s. The cou!le stayed in a tourist hotel and !aid for the three wee0s of accommodation in ad ance. Ta0ing all of this into account; ". and 6. do not benefit from the !ro isions of the Directi e. .t cannot be inferred that the residence in the host Lember 6tate is not genuine and effecti e only because an >? citi=en maintains some ties to the home Lember 6tate; all the more if his status in the host country is unstable 8e.g. a wor0 contract of limited duration: . The mere fact that a !erson consciously !laces himself in a situation conferring a right does not in itself constitute a sufficient basis for assuming that there is abuseMEEN. +ll rele ant considerations set out abo e on in estigation; material and !rocedural safeguards; co7o!eration between Lember 6tates relating to marriages of con enience a!!ly mutatis mutandis .

.t should be noted that the Ouidelines issued in 200- are %ust that guidelines and it is stated in the Lemo from the >uro!ean *ommission sent at the time

're the *uidelines binding6 &o. The Ouidelines state the iews of the *ommission and are without !re%udice to the case7 law of the *ourt of "ustice.

Full memo can be found here/ htt!/))euro!a.eu)ra!id)!ress7release2L>LF70-73112en.htm

9For those who want to know how Regulation 9 was previously worded it is as follows:

9.(1) f the conditions in paragraph (!) are satisfied" these Regulations apply to a person who is the family mem#er of a $nited %ingdom national as if the $nited %ingdom national were an &&' national. (!) (he conditions are that (a) the $nited %ingdom national is residing in an &&' )tate as a worker or self*employed person or was so residing #efore returning to the $nited %ingdom+ and (#) if the family mem#er of the $nited %ingdom national is his spouse or civil partner" the parties are living together in the &&' )tate or had entered into the marriage or civil partnership and were living together in that )tate #efore the $nited %ingdom national returned to the $nited %ingdom. (,) -here these Regulations apply to the family mem#er of a $nited %ingdom national the $nited %ingdom national shall #e treated as holding a valid passport issued #y an &&' )tate for the purpose of the application of regulation 1, to that family mem#er.

(he full transcript of the !../ 0egislation can #e found here:

http:11www.uk#a.homeoffice.gov.uk1sitecontent1documents1policyandlaw1ecis1anne2a.pdf3 view45inary

(he guidance that was given to &uropean 6aseworkers under the old 7rule8 is as follows (this is still applica#le up until 1 9anuary !.1:).

!.;.1 Family <em#ers of a 5ritish national ()urinder )ingh) (he &69 case of )$R =>&R ) =?@ ruled that where a national of a <em#er )tate goes with his1her non*&&' national spouse to another <em#er )tate to e2ercise an economic (reaty right" on return to his1her own <em#er )tate the non*&&' national spouse is entitled to Aoin the &&' national under &6 law. $nder regulation 9 of the !../ Regulations" the family mem#ers of a 5ritish national returning to the $% will #e treated as if they were the family mem#ers of an &&' national under the following conditions: 'fter leaving the $nited %ingdom" the 5ritish national resided in an &&' state and B o -as employed there (other than on a transient or casual #asis)+ or o &sta#lished him1herself there as a self*employed person+ and f the family mem#er is his1her spouse" the marriage took place" and the parties lived together in an &&' state" #efore the 5ritish national returned to the $nited %ingdom.

6aseworkers should note that in line with the Audgment of the &69 in the case of &ind v 0and 5erlin (6!91*.;)" where a $% national meets the criteria set out a#ove" it is not a reCuirement that they continue to #e economically active on their return to the $% in order for their family mem#ers to enAoy a right of admission and residence on the #asis of regulation 9.