Updated Version of "New Rules" following Home Office reply to FOI request

By Angie Dhakal-Woolfall on Thursday, January 23, 2014 at 9:11pm

New SS "Rules" 5 Dec 2013

By Angie Dhakal-Woolfall on Wednesday, 11 December 2013 at 18:31 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 give any definitive advice regarding how these new rules will be implemented because they will not be incorporated until 1 January 2014. We will just have to wait until the New Year to see if anyone is refused a Family Permit/Code 1A because they have failed to comply with this new interpretation of Regulation 9.

1.

Legislation laid before Parliament.

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

http://www.legislation.gov.uk/uksi/2013/3032/made?utm_content=buffer41434&utm_source =buffer&utm_medium=twitter&utm_campaign=Buffer

and here

http://www.legislation.gov.uk/uksi/2013/3032/pdfs/uksi_20133032_en.pdf

The part that in particular appears to affect those wishing to SS is as follows:- (*if you wish to know what this has replaced see the end of this document)

5. For regulation 9, substitute Family members of British citizens

9. (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 Ps 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 Ps life has transferred to the EEA State where P resided as a worker or selfemployed person.

(3) Factors relevant to whether the centre of Ps 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 Ps 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..

2.

MEMO TO ACCOMPANY LEGISLATION

This can be found here:

http://www.legislation.gov.uk/uksi/2013/3032/pdfs/uksiem_20133032_en.pdf

The part relating to SS and Regulation 9 is:-

D. Family members of British Citizens

7.11 Paragraph 5 of the Schedule to the Regulations addresses the transposition of the judgment of the CJEU in case C-370/90 Singh. The Directive, and by extension the 2006 Regulations, does not normally govern the legal situation of citizens living in their own country of nationality (which is an internal situation). One exception to this rule was established by Singh, and applied in case C-291/05 Eind. Those cases provide that non EU family members of EU nationals who have worked in another member State, may retain their free movement rights upon return to the EU citizens member State of nationality. These Regulations amend the relevant qualifying criteria in the 2006 Regulations which give effect to this judgment. The new regulation 9 of the 2006 Regulations introduces a requirement that the British citizen must have transferred the centre of their life to another member State before their family members can benefit from the Singh provisions. Whether or not a British citizen has transferred the centre of their life to another member State will be assessed by reference to a number of criteria, including the length of residence, the degree of integration and whether or not the British citizen has moved their principal residence to that other member State.

7.12 These changes have been made to ensure that there has been a genuine and effective use of free movement rights in the other member State before such rights may apply by analogy upon return to the UK. The Singh judgment sought to prevent a possible deterrent to the exercise of free movement rights; such a deterrent can only occur if the British citizen intends to exercise rights genuinely and effectively in another member State. This paragraph will also have the effect of preventing abuse by those British citizens who move temporarily to another member State in order to circumvent the requirements of the usual immigration rules for their family members upon return to the UK.

3. It would appear that these changes are as a result of the following guidelines, and in particular the guideline regarding abuse, astonishingly issued in 2009! :

(Anyone wishing to read the full guidelines this can be found here : http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52009DC0313:EN:NOT )

Communication from the Commission to the European Parliament and the Council on guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States

4.3. Other forms of abuse Abuse could also occur when EU citizens, unable to be joined by their third country family members in their Member State of origin because of the application of national immigration rules preventing it, move to another Member State with the sole purpose to evade, upon returning to their home Member State, the national law that frustrated their family reunification efforts, invoking their rights under Community law. The defining characteristics of the line between genuine and abusive use of Community law should be based on the assessment of whether the exercise of Community rights in a Member State from which the EU citizens and their family members return was genuine and effective . In such case, EU citizens and their families are protected by Community law on free movement of persons. This assessment can only be made on a case-by-case basis. If, in a concrete case of return, the use of Community rights was genuine and effective, the Member State of origin should not inquire into the personal motives that triggered the previous move. When necessary, Member States may define a set of indicative criteria to assess whether residence in the host Member State was genuine and effective . National authorities may in particular take into account the following factors: - the circumstances under which the EU citizen concerned moved to the host Member State (previous unsuccessful attempts to acquire residence for a third country spouse under national law, job offer in the host Member State, capacity in which the EU citizen resides in the host Member State) ; - degree of effectiveness and genuineness of residence in the host Member State (envisaged and actual residence in the host Member State, efforts made to establish in the host Member State, including national registration formalities and securing accommodation, enrolling children at an educational establishment) ;

- circumstances under which the EU citizen concerned moved back home (return immediately after marrying a third country national in another Member State) . The above criteria should be considered possible triggers for investigation, without any automatic inferences from results or subsequent investigations. In assessing whether the exercise of the right to move and reside freely in another Member State of the EU was genuine and effective, national authorities may not rely on a sole attribute but must pay due attention to all the circumstances of the individual case. They must assess the conduct of persons concerned in the light of the objectives pursued by Community law and act on the basis of objective evidence[65]. J. returns home from another Member State with S., his third country spouse. S. unsuccessfuly attempted twice to acquire residence in J.s Member State. J. continued to work home during his alleged residence in another Member State. The authorities contact the authorities of the host Member State and find out that J . returned home only after three weeks. The couple stayed in a tourist hotel and paid for the three weeks of accommodation in advance. Taking all of this into account, J. and S. do not benefit from the provisions of the Directive. It cannot be inferred that the residence in the host Member State is not genuine and effective only because an EU citizen maintains some ties to the home Member State, all the more if his status in the host country is unstable (e.g. a work contract of limited duration) . The mere fact that a person consciously places himself in a situation conferring a right does not in itself constitute a sufficient basis for assuming that there is abuse[66]. All relevant considerations set out above on investigation, material and procedural safeguards, co-operation between Member States relating to marriages of convenience apply mutatis mutandis .

4. It should be noted that the Guidelines issued in 2009 are just that guidelines and it is stated in the Memo from the European Commission sent at the time, the following:

Are the Guidelines binding? No. The Guidelines state the views of the Commission and are without prejudice to the caselaw of the Court of Justice.

Full memo can be found here: http://europa.eu/rapid/press-release_MEMO-09-311_en.htm

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

9.(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a United Kingdom national as if the United Kingdom national were an EEA national. (2) The conditions are that (a) the United Kingdom national is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom; and (b) if the family member of the United Kingdom national is his 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 that State before the United Kingdom national returned to the United Kingdom. (3) Where these Regulations apply to the family member of a United Kingdom national the United Kingdom national shall 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.

The full transcript of the 2006 Legislation can be found here:

http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/ecis/annexa.pdf?vie w=Binary

The guidance that was given to European Caseworkers under the old rule is as follows (this is still applicable up until 1 January 2014).

2.5.1 Family Members of a British national (Surinder Singh) The ECJ case of SURINDER SINGH ruled that where a national of a Member State goes with his/her non-EEA national spouse to another Member State to exercise an economic Treaty right, on return to his/her own Member State the non-EEA national spouse is entitled to join the EEA national under EC law. Under regulation 9 of the 2006 Regulations, the family members of a British national returning to the UK will be treated as if they were the family members of an EEA national under the following conditions: After leaving the United Kingdom, the British national resided in an EEA state and o Was employed there (other than on a transient or casual basis); or o Established him/herself there as a self-employed person; and If the family member is his/her spouse, the marriage took place, and the parties lived together in an EEA state, before the British national returned to the United Kingdom.

Caseworkers should note that in line with the judgment of the ECJ in the case of Eind v Land Berlin (C291-05), where a UK national meets the criteria set out above, it is not a requirement that they continue to be economically active on their return to the UK in order for their family members to enjoy a right of admission and residence on the basis of regulation 9.

Additional information added 23 January 2014

Today the Home Office has answered a Freedom of Information request relating to the new guidelines

The following is the most relevant part of that answer (listed as Part c in files)

From: European Operational Policy Team Subject: Regulation 9 (Surinder Singh Cases) Date: 01 January 2014 Issue Number: 02/2014

Purpose of Notice 1. This notice must be read alongside notice 05/11 and section 5.5 of chapter 5 of the ECIs. This notice provides guidance to case workers on how to consider applications from the non-EEA national spouse or civil partner of a British citizen who has exercised Treaty rights in another EEA member state. Background 2. The Immigration (European Economic Area) (Amendment) (No.2) Regulations 2013 were amended on 01 January 2014 to include a new threshold test to tighten the circumstances in which family members of British Citizens can rely on the Court of Justice of the European Union (ECJ) judgment in Surinder Singh C-370/90). The Surinder Singh judgment was implemented into the 2006 Regulations by way of regulation 9. 3. The new requirement at regulation 9(2)(c) and 9(3) requires the British citizen to have transferred the centre of their life to another EEA member state, where they resided as a worker or self-employed person with their spouse or civil partner before returning to the UK. 4. This change was made to ensure that a British Citizen engages in genuine and effective use of the rights conferred by EU free movement law before a right to reside in the United Kingdom is conferred on a non-EEA family member. The principle behind Surinder Singh is the need to ensure that nationals of a Member State are not deterred from exercising Treaty rights through not being able to return to their Member State of origin with third country family members.

5. These amendments came into force on the 01 January 2014 and apply to all applications for documentation on or after that date, however, see Annex A for details of the transitional arrangements. Consideration 6. Regulation 9(2)(c) requires a British citizen to demonstrate that they have transferred the centre of their life to another EEA member state where they were residing as a worker or self employed person.

7. Regulation 9(3) specifies the factors to be considered when deciding whether a British citizen has transferred the centre of their life to another member state. These include, but are not limited to: a. the period of residence in another EEA member state as a worker or self-employed person; b. the location of the British citizens principal residence; and c. the degree of integration of the British citizen in the host member state. The criteria are indicative and it is not necessary to meet all three. Period of residence in another EEA member state 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. Principal residence 10. The principal residence is the place and country where the British citizens 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. Degree of integration 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.

13. 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. Contrast with the example of a British citizen who will be working in France for three months, who resides in a hotel and returns to the UK every weekend. They dont speak the language and educate their children in a school in the UK. In this second example they are less likely to have moved the centre of their life to the UK. 14. 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.

Appeal rights 15. Where any of the above factors are not satisfied, the application should be refused in line with regulation 9(2)(c). 16. All such refusals would attract an in-country right of appeal subject to the restrictions in regulation 26. Contact 17. If you have any queries about this notice, please contact [REDACTED section 40(2)] on [REDACTED section 40(2)], or email the European Operational Policy Mailbox at [email address] [REDACTED section 40(2)] Head of European Operational Policy 01 January 2014