Surinder Singh Application Route

Operative part of "O v The Netherlands (Case C-456/12)" judgment
Please see below the operative part of the judgment:

"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."
What it means?
We can derive the following points from the detailed judgment:

1. In order for there to be an unlawful obstacle to derived right of residence for non EEA Family Member, the family life must have been genuinely created or strengthened during his residence in the Host EU country [paragraph 51]

2. A residence of three months is required in line with the Article 7(1) and (2) [paragraph 54]

3. The genuine residence of the EEA citizen and of the Non EEA family member, in the host EU country, creates a derived right of residence for the Non EEA national family member with whom that citizen lived as a family in the host EU country. This derived right of residence is created on the EEA citizen’s return to his own EU country of origin. This means that a citizen of the EU can rely on this right even if he is not a worker or self employed. [paragraph 56]

4. The scope of EU 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 EU 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. [paragraph 58]

5. Short periods of residence such as weekends or holidays do not satisfy the conditions [paragraph 59]
Home Office's Tricky Transposition of Surinder Singh Judgment into EEA Regulations
The Immigration (EEA) Regulations 2006 purport to transpose the Surinder Singh principle at regulation 9 (as amended) as follows:

(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.
Centre of Life Test
As can be seen from the amendment the tricky bit is the new requirement of meeting "Centre of Life" test which has no basis in the EEA law nor has a place in the new judgment in 'O v The Netherlands' referenced above.

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 citizen’s principal residence; and
c) the degree of integration of the British citizen in the host member state.

As is evident from these new legal developments the Surinder Singh route has become much more complicated that it was meant to be. It is therefore important to get legal advice and representation when considering this route to be reunited with your loved ones. Book a consultation today if you'd like 1st Citizen's lawyers to help you.

Wish to Apply?
If you'd like to make a Surinder Singh Application please be aware that a good number of applicants are refused even though they appear to meet the legal requirements. These refusals are attributable to the applicant's failure to provide evidence in the format required by the EEA regulations or them being legally illiterate failing to properly understand the rules governing grant of family permits.

The applicant, as a result, not not only loses the application but also complicates any future application that he may want to make. It is therefore critical that proper immigration advice and representation is sought before you submit your case to the Home Office to ensure you meet all applicable Surinder Singh Application rules and policy guidelines increasing your prospects of success.
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