As of 1st January 2014, non-EU family members of British citizens will face greater restrictions on their right to free movement within the European Union (EU).
The changes, published by the Home Office last week as amendments to the 2006 regulations concerning European Economic Area immigration, affect the
interpretation of the Council Directive 2004/38/EC (the Directive). UK
The Directive governs the right of EU citizens and their family members to move and reside freely within any member state, with free movement a fundamental principal of the EU.
Among the measures introduced by the regulations to tackle the abuse of rights of residence conferred by the Directive are new criteria concerning the family members of British citizens hoping to benefit from the provisions of the Singh case.
In C-370/90 Singh, the Court of Justice in the European Union ruled that non-EU family members of EU nationals who have worked in another member state may retain their rights to free movement on return to the EU citizen’s member state of nationality. This judgment has been given effect in
law via the
2006 regulations. UK
Under the new regulations, the qualifying criteria which give effect to this judgment have been amended. The new rules state that in order for family members to benefit from the Singh provisions, the British citizen must have transferred the ‘centre of their life’ to another member state.
“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,” says the memorandum.
The 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
There has been a surge in British nationals using what is commonly referred to as the Surinder Singh route since the July 2012 amendments to the immigration rules, which saw the introduction of a financial requirement for British sponsors of non-EU partners and dependent children.
While the new criteria will 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” according to the amendment, it could have a disproportionate impact on the exercise of free movement rights, something the Singh judgment sought to prevent.