Surinder Singh case
The judgement of the European Court of Justice (ECJ) in the case of Surinder Singh 370/90, 7 July 1992 established the legal principle that, in some circumstances, a British national could be treated the same as a national of another Member State for the purpose of exercising freedom of movement to take employment in the UK.
What this would mean in practice is that the non-EEA partner of an eligible British citizen would benefit from the much more favourable EEA right to free movement, as opposed to the more stringent UK immigration rules. To be eligible, the British citizen would need to have exercised EEA Treaty Rights through employment or self-employment in another EEA member state. One of the court’s justifications for its position was that, to do otherwise would ‘deter’ a union citizen from moving from his home state to a member state to pursue economic activity. For the European Union t be a truly free market, its citizens must have the ability to move freely through all Member States.
The Surinder Singh judgement was particular noteworthy as the ECJ’s decision allowed British citizens the precedence of European law over UK immigration law.
The practical effect of the Surinder Singh judgement was that it enabled non-EEA spouses of British nationals who came within the judgement, to resettle in the UK under EEA law. It therefore enables the non-EEA national spouse from having to apply under the more onerous requirements of the UK’s spouse immigration rules – these require a non-EEA national spouse to pay a fee, pass an English language test and to satisfy both a financial and an accommodation test.
Genuine residence test
The ECJ judgement of O and B v The Netherlands C-456/12, 12 March 2012 places caveats on the Surinder Singh judgement. The ECJ introduces the concept of a ‘genuine residence’ test in cases where a non-EEA national family member seeks to return to the home state of their EEA partner following a period of residence together in another Member State. The court rejected ‘short residences such as weekends or holidays’ as being insufficient to demonstrate genuine residence. It also mentions both an ‘objective’ and ‘subjective’ assessment to ensure there are no abuses of Member States’ national immigration laws through this route.
Centre of Life test
The UK government responded on 1 January 2014 by introducing a new requirement into the Immigration (EEA) Regulations 2006.This requires the non-EEA national to meet what is referred to as the ‘centre of life’ test.
Regulation 9 of the EEA Regulations requires the following ‘conditions’ to be taken into consideration:
It also provides ‘factors’ which a decision maker should take into account when assessing whether the British national has transferred his or her life to another EEA Member State such as:
The centre of life test does not place any minimum time period for which the British national must have resided in the EEA state, but it enables a decision maker to consider a host of factors in determining whether it has been met. The threshold that an applicant must now meet in order to satisfy the centre of life test will vary from case to case and will also depend, for example, on the reasons why the British national went there, their lifestyle and the type of activities they undertook whilst living in the other EEA country.
The Surinder Singh route is still open to non-EEA national family members of British nationals who have worked in an another EEA Member State, but it is evident that care should be taken when making an application.
If you require further advice or legal assistance through the Surinder Singh route, an EEA Family Permit or an EEA Residence Card application, please contact us through our online contact form, by telephone on +44 207 038 3980 or via email at firstname.lastname@example.org