Category Archives: Surinder Singh Legislation and Caselaw

#MMCase has been ruled – Minimum income requirement here to stay

What is the MMCase Minimum Income Requirement ruling?

divided spousesThe Supreme Court has just handed down its judgment in the #MMcase – Minimum Income Requirement.  It has ruled in favour of the government in principle.  That is that it is entirely legitimate for ministers to use income rules to control immigration.  They validated this by adding that minimum income rules have been ruled by the ECtHR to be compatible with human rights.

However, please do not let this disappointment relating to the mmcase minimum income requirement get you down.  because…

UK Government have breached the rights of kids for years

The Supreme Court didn’t just answer the question as to whether the MIR (MMCase Minimum Income Requirement) was lawful.  The court went onto note that the rules have been poorly applied in relation to rights of children.  The court has stated that the rules fail to adequately incorporate the Home Office’s S.55 BCIA duty into the framework/rules.

91.              In our view the instructions in their present form (quoted at para 24 above) do not adequately fill the gap left by the rules. Rather than treating the best interests of children as a primary consideration, taking account of the factors summarised in Jeunesse, they lay down a highly prescriptive criterion requiring “factors … that can only be alleviated by the presence of the applicant in the UK”, such as support during a major medical procedure, or “prevention of abandonment where there is no other family member …”. It seems doubtful that even the applicant in Jeunesse itself would have satisfied such a stringent test. Furthermore, although section 55 is in terms directed to children in the UK, the Secretary of State has accepted that the same approach should be applied to the welfare of children elsewhere (see para 46 above).

92.              We have no doubt therefore that the guidance is defective in this respect and needs to be amended in line with principles stated by the Strasbourg court. Furthermore, the statement in GEN.1.1 that the duty has already been taken into account in the rules is wrong in law. Nor is the gap filled by GEN.1.10-11 which refer to the separate consideration under article 8, but not section 55. This is not simply a defect of form, nor a gap which can be adequately filled by the instructions. The duty imposed by section 55 of the 2009 Act stands on its own feet as a statutory requirement apart from the HRA or the Convention. It applies to the performance of any of Secretary of State’s functions including the making of the rules. While the detailed guidance may be given by instructions, it should be clear from the rules themselves that the statutory duty has been properly taken into account. We would grant a declaration that in this respect both the rules and the instructions are unlawful.

It also notes that the rules fail to do a proper assessment of a couple’s income.

[2017] UKSC 10 goes on in Para 100 to note that the case workers have a positive article 8 duty to take into consideration other funding sources ETC.

100.          As already explained, we do not see this as an issue going to the legality of the rules as such. What is necessary is that the guidance to officers should make clear that, where the circumstances give rise to a positive article 8 duty in the sense explained in Jeunesse, a broader approach may be required in drawing the “fair balance” required by the Strasbourg court. They are entitled to take account of the Secretary of State’s policy objectives, but in judging whether they are met, they are not precluded from taking account of other reliable sources of earnings or finance. It is open to the Secretary of State to indicate criteria by which reliability of such sources may be judged, but not to exclude them altogether.

So what does this mean now?

It looks like we’re stuck with the MMCase Minimum Income Requirement (#MIR).  However, at least this latest ruling reinforces the well known fact (which has been ignored by the Home Office for years) that when you’ve got kids, further protections / considerations have to be taken into account.

This point is something that I have personally argued for years.  The Home Office have for far too long brushed the needs of kids aside.  We are all aware that a child needs two loving parents, yet government officials believe that they can decide what a child needs is different to what children actually need.

External Links

You can view more information relating to the MMCase – [2017] UKSC 10  on the Supreme Court’s website.

Case C-456/12 – O and B Judgment of the ECJ

The official press release in relation to the judgment of the ECJ for Case C-456/12 reads as follows:

Directive 2004/38/EC grants EU citizens and their family members the right to move and reside freely within the territory of the Member States

1. In that regard, the Raad van State (Netherlands, Council of State) has made two separate requests to the Court of Justice for a preliminary ruling in the context of four cases concerning the refusal of Netherlands’ authorities to grant a right of residence to a third-country national who is a family member of an EU citizen of Netherlands nationality.

Case C-456/12: Mr O. and Mr B.’s situation

Case C-456/12 concerns the refusal to grant a right of residence where the EU citizen returns to the Member State of which he is a national after short periods of residence in another Member State with the family member in question.

In 2006, Mr O., a Nigerian national, married a Netherlands national and from 2007 to April 2010 he lived in Spain. During that period, Mr O.’s wife resided for two months with her husband in Spain and regularly spent time with Mr O. in the form of holidays in Spain.

Mr B., a Moroccan national, lived from December 2002 with his partner who has Netherlands nationality. In 2005, Mr B. moved to Belgium and lived in an apartment rented by his partner. His partner resided with Mr B. in Belgium every weekend. In April 2007, Mr B. returned to Morocco and in July 2007 Mr B. married the Netherlands national in question.

As Mr O. and Mr B. were family members of EU citizens, the referring court asks whether EU law, in particular Article 21 TFEU and Directive 2004/38, grants such third-country nationals a right of residence in the Member State of which the citizens in question are nationals.

The Court points out first of all that Article 21 TFEU and Directive 2004/38 do not confer any autonomous right on third-country nationals. Any rights conferred on third-country nationals are rights derived from the exercise of freedom of movement by an EU citizen.

The Court finds next that Directive 2004/38 does not confer any derived right of residence on third-country nationals who are family members of an EU citizen residing in the Member State of which he is a national. Directive 2004/38 applies only where a citizen moves or resides in a Member State other than that of which he is a national.

With regard to the question as to whether Article 21 TFEU grants such a derived right of residence, the Court explains that a refusal to allow a derived right of residence for a family member of an EU citizen who is a third-country national, may interfere with the EU citizen’s freedom of movement under that provision. An EU citizen may be discouraged from leaving his Member State of origin because he is uncertain whether he will be able to continue, on returning to that Member State, a family life which he will have created or strengthened in another Member State. However, such an obstacle will arise only where the residence in the host Member State has been genuine, that is to say where it satisfies the requirements of Directive 2004/38 relating to a right of residence for a period of longer than three months.

It follows that, where an EU citizen has, pursuant to and in conformity with the provisions of Directive 2004/38 relating to a right of residence for a period of longer than three months, genuinely resided in another Member State and, during that genuine residence, a family life has been created and strengthened in that Member State, the effectiveness of Article 21 TFEU requires that the citizen’s family life in the host Member State may continue on returning to his Member State of origin. That implies that, in such a case, a derived right of residence is allowed for the family member who is a third-country national.

The conditions for granting such a derived right of residence, based on Article 21 TFEU should not, in principle, be more strict than those provided for by Directive 2004/38 for the grant of a derived right of residence to a third-country national who is a family member of an EU citizen where that citizen 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. Even though Directive 2004/38 does not cover the return of the EU citizen to the Member State of which he is a national, it should be applied by analogy given that in both cases it is the EU citizen who is the reference point for the grant of a derived right of residence to a third-country national who is a member of his family.

As regards the question whether the cumulative effect of various short periods of residence in the host Member State may create a derived right of residence for a family member of an EU citizen who is a third-country national on the citizen’s return to his Member State of origin, the Court points out that only a period of residence satisfying the conditions of Directive 2004/38 relating to a right of residence for a period of longer than three months will give rise to such a right of residence. The Court notes that, even when considered together, short periods of residence (such as weekends or holidays spent in a Member State other than that of which the citizen is a national) do not satisfy those conditions.

The court notes in addition that Mr B. acquired the status of family member of an EU citizen after his partner’s residence in the host Member State. A third-country national, who has not had, at least during part of his residence in the host Member State, the status of family member of an EU citizen, is not entitled to a derived right of residence in that Member State pursuant to Directive 2004/38. Accordingly, that third-country national is also unable to rely on Article 21 TFEU for the grant of a derived right of residence on the return of the EU citizen to the Member State of which he is a national.

In the light of all the foregoing, the Court rules that where an EU citizen has, pursuant to and in conformity with the provisions of Directive 2004/38 relating to a right of residence for a period of longer than three months, created or strengthened a family life with a third-country national during genuine residence in a Member State other than that of which he is a national, the provisions of that directive apply by analogy where that EU citizen returns, with the family member in question, to his Member State of origin.

[ Source: http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-03/cp140032en.pdf ]

In short, this new ruling outlines the following:

  1. A residence period of at least three months is required (para 54)
  2. Weekend visits and holidays do not count as residence for this purpose (para 59)
  3. Any citizen of the Union can potentially benefit from this right, not just workers and the self employed (references to Article 7 of Citizens Directive 2004/38 , e.g. para 56, and to Article 21 of the TFEU, e.g. para 54)
  4. During the period of residence family life must have been “created or strengthened” (para 51)
  5. Abuse is not allowed (para 58)

( Read more from Colin Yeo on The Free Movement Blog:  Surinder Singh Immigration Route )

I draw particular attention to the fifth point.  Case C-109/01 raised the point of persons deliberately placing themselves into a possition to be beneficiaries of EU points of law.  The ruling outlined that this is not abuse (even if it can be used as part of an assessment leading to “alleged” abuse).

 

How long do I need to live in another member state to qualify under Surinder Singh?

There has been a lot of talk on the internet of late regarding the new Home Office’s Centre of Life Requirement for Surinder Singh.  I see lots of people saying that “You must excercise treaty rights for at least X months“.  Today infact, a member of the EEA Visa group actually said that The Home Office informed her that she must excercise treaty rights for at least six months to qualify.

This is not correct!  Absolute rubbish, and totally out of order for the Home Office to claim such.

As previously linked to: The Home Office’s Centre of Life guidance clearly states the following:

Generally, the longer the British citizen has been exercising Treaty rights in another EEA member state, the more likely it is that they will have transferred the centre of their lives.

There is still no minimum time period that must be spent in the host member state and all cases must be assessed on their own merits.

This should also be noted along with the Opinion of Advocate General Sharpston in the Case of S and O.

 

Also, if in doubt, simply rely on the word of law.  Regulation 9 of the Immigration (European Economic Area) Regulations 2006 places absolutely no time limits.  To do so would be a good move for Singher’s everywhere as there would be goalposts.  The Home Office have simply implemented the Centre of Life requirement so as to allow it’s ECO’s a reason for refusal of any application.

The reasons being spouted by ECO’s are rediculous.

Obviously, the burden of proof is upon the applicant as a balance of probabilities.  It is best to provide as strong an application for an EEA Family Permit or Residence Card as possible.  Ensure that your covering letter includes the reason that you are returning to the UK.  These reasons might well be:

  • Job Offer
  • Seriously ill family member
  • Contact issues with children of a previous relationship (at which Section 55 would also apply)

The UK, as outlined within it’s response, has a duty to assess all cases on their own merits.  This was established in the case of Akrich Case C-109/01, along with the fact that you benefit from provision of EC law even if you deliberately place yourself into a position to benefit from EC law.

 

 

New Home Office “Centre of Life” Guidance

In response to the new Centre of Life regulation introduced on Jan 1st 2014, A user of ‘What Do They Know’ has asked The Home Office for all of their guidance in relation to the new Centre of Life requirements.

You can find the original request here: Centre of Life Guidance for Surinder Singh.

Dear Home Office,

It appears clear that you have issued new Centre of life guidance
for Surinder Singh to case workers.

Can you please provide all policy updates. Home office circulars.
And full copies of guidance in relation to the new regulation 9.3
of eea regs 2006 that was introduced on Jan 1. 2014.

 

Another user of What Do They Know also submitted a Freedom of Information request which resulted in pretty much the same response.  This request can be found here:  FOI Request for definition of ‘centre of life’ for immigration purposes.

Dear Home Office,

I am making a Freedom Of Information request to ascertain how the
Home Office defines ‘centre of life’ as pertaining to immigration,
and written copies of all policy documents covering this. I am also
requesting copies of any guidance issued to any officials and
officers regarding decision-making regarding this.

I have been unable to find this information, and am looking forward to hearing from you on this matter.

 

I particularly like the fact that this FOI response actually states that there is NO MINUMUM TIME LIMIT you must reside / work in the EEA to qualify under Surinder Singh!

It is clear that this new ammendment was simply introduced so as to allow the ECO to use a “Legal” reason for refusal.  Ensure that you streghthen any application taking note of all relevant laws / case laws! (Particularly the recent ongoing case of S and O)

Advocate Generals Opinion – Case S (C‑457/12) and O (C‑456/12)

On the 12th December 2013 in the case of S (Case C‑457/12) and O (Case C‑456/12) Advocate General Sharpston delivered an outstanding opinion to the ECJ.

Now this is just an opinion, and is not legally binding.  It is, however, persuasive in a court of law (as outlined by the Home Office in Chapter 9 – ECI Appeals.

1.2 Opinions of the Advocate General

Although the Advocate General’s opinion in a particular case is not binding on the ECJ, it is often followed. The opinion can be submitted to the AIT as persuasive, but not binding, authority until it is superseded by the relevant ECJ judgment. i.e. A Presenting Officer may refer to an Opinion of the Advocate General in submissions and ask the Immigration Judge to note its comments but it must be clear that it is not relied upon as a legal ruling.

The full opinion can be found here: Case of S and O: Advocate General

The actual responses that are suggested are as follows:

Conclusion

159. In the light of the foregoing considerations, I am of the opinion that the Court should answer the questions raised by the Raad van State to the following effect:

In Case C‑456/12 O:

(1)      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 does not apply directly to EU citizens returning to their Member State of nationality. However, the Member State of nationality may not give such EU citizens less favourable treatment than that owed to them as a matter of EU law in the Member State from which they moved to their Member State of nationality. As a result, Directive 2004/38 indirectly sets out the minimum standard of treatment that a returning EU citizen and his family members must enjoy in the EU citizen’s Member State of nationality.

(2)      EU law does not require an EU citizen to have resided for any minimum period of time in another Member State in order for his third country national family members to claim a derived right of residence in the Member State of nationality to which the EU citizen then returns.

(3)      An EU citizen exercises his right of residence in another Member State if he makes that Member State the place where the habitual centre of his interests lies. Provided that, when all relevant facts are taken into account, that test is satisfied, it is irrelevant in this context whether that EU citizen keeps another form of residence elsewhere or whether his physical presence in the Member State of residence is regularly or irregularly interrupted.

(4)      Where time elapses between the return of the EU citizen to the Member State of which he is a national and the arrival of the third country national family member in that Member State, the family member’s entitlement to a derived right of residence in that Member State does not lapse provided that the decision to join the EU citizen is taken in the exercise of their right to a family life.

In Case C‑457/12 S:

Where an EU citizen residing in his Member State of nationality exercises rights of free movement in connection with his employment, the right of his third country national family members to reside in that State depends on the closeness of their family connection with the EU citizen and on the causal connection between the family’s place of residence and the EU citizen’s exercise of rights of free movement. In particular, the family member must enjoy a right of residence if denying that right would cause the EU citizen to seek alternative employment that would not involve the exercise of rights of free movement or would cause him to move to another Member State. It is irrelevant in that regard whether the EU citizen is a frontier worker or exercises his right of free movement in order to fulfil his contract of employment concluded with an employer based in his Member State of nationality and residence.

 

It’s an excellent read – well worth going through in great detail. 🙂

The UK Changes The Rules on Surinder Singh

On 3 December 2013, the UK government adopted the Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2013 (SI No 3032) which amend Regulation 9 of the Immigration (EEA) Regulations. The new rules take effect on 1 January 2014.

From that date, it will now be a new requirement for those using the Surinder Singh route that the “the centre of [the British citizen]’s life has transferred to the EEA State where [the British citizen] resided as a worker or self-employed person.”

You can view more of A. Valcke’s post here: EU Rights Clinic: Surinder Singh Rules Changed.

I think that the post above sums up fantastically what the requirements should mean. Many of the new possible requirements already being completed. Here are some simple tips (and that is obviously all they are) to keep you on the right side…

  • Don’t leave kids behind, and make sure you sort out their education in the host member state
  • Transfer your car over to the new host member state, as well as your driving license.
  • Replace your EHIC with the local EHIC.
  • Don’t keep a rented accomodation in the UK, unless of course its necessary.
  • REMEMBER TO FOLLOW ALL RESIDENCE REQUIREMENTS OF THE HOST STATE.

It’s very wise to remember the case of Mrs Carpenter Case C-60/00. Her British Spouse (Mr Carpenter) never actually lived in an EU state, but still his simple provision of services to the EU was sufficient to bestow upon Mrs Carpenter a right of residence from the EU treaties.

It is also highlighted by the Home Office in their Freedom of Information response regarding the Effect of Case C-60/00 (Carpenter) on an EEA2 application to myself the following:

The Carpenter case simply highlights the fact that Member States cannot take action against the family members of EU nationals which would breach their rights under Article 8 of the ECHR. While the context of the case related to the exercise of the freedom to provide services, the determining factor in the case was the disproportionate effect of the proposed deportation of Mr Carpenter‟s wife.

The Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2013

The Home Office have released some New EEA regs so as to attempt to curtail The Surinder Singh Route by asking whether the ‘centre of life’ of the EEA National (British Citizen) has relocated to the host member state.

The new amended regulations can be found online:
The Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2013 .

You can read more about this amendment on the following document: EXPLANATORY MEMORANDUM TO THE IMMIGRATION (EUROPEAN ECONOMIC AREA) (AMENDMENT) (No. 2) REGULATIONS 2013.

Regardless of what happens with this amendment to legislation, it is wise to remember: Both The Directive and previous Case Law have not been changed. Only the UK’s interpretation of this. This amendment comes following the release of the clarification from the EC in 2009 (yes, in 2009, it has taken over four years to enact changes… perhaps this is due to a rather recent BBC broadcast).

Need any clarifications about this new instrument? As outlined in the above legislation explaination memorandum:

13.1 Deborah Morrison, European Union Free Movement Policy Team, Home
Office, Tel: 0207 035 0655 or email: [email protected] can
answer any queries regarding the instrument.

Case C-34/09 – Ruiz Zambrano

Outline of the ruling on Zambrano

In the case of Ruiz Zambrano (Case C-34/09 of the European Court of Judgement (ECJ) http://www.bailii.org/eu/cases/EUECJ/2011/C3409.html), the court made the following ruling:

Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.

Note that there are numerous articles to be found on Google in relation to this case. I list a few of the webpages here:

But there are many more interesting reads out there…

In addition to the above, The Home Office have a very clear responsibility to safeguard and promote the welfare of children under Section 55 – Borders, Citizenship and Immigration Act 2009. This guidance is laid out well in their Statutory guidance to the UK Border Agency (UKBA), which also refers to The Home Office: Every Child Matters.

Zambrano IDI’s and Article 8 Guidance

I’d like to also raise the following UN Law: UNCRC – United Nations Convention on the Rights of the Child

And the consolidated clearer version in EU law:
Article 24 TFEU: The Rights of the Child.

COMMENTARY OF THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION

Article 24. The *rights* of the child
1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.

3. Every child shall have the right right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests. (Emphasis added)

Weighing this in line with the very clear Zambrano / Article 8 IDI’s. The Home Office Derivative Right’s guidance notice can be viewed here on my FOI request Derivative right of residence – take note that there are a number of files released on this request.