"genuine and effective" residence w/x-border element

[zerOH]

Hello boards. I could benefit from the community hive mind on this topic. Sorry about the length, I'll do my best to keep it brief.


My wife (a EU/EEA national) and I (a TCN) moved to a Host Member State (HMS) together several years ago. She worked in her Member State of Origin (MSO) but lived in the HMS. The nature of her job did not allow her to return home on a daily or weekly basis (she works 3 weeks on 3 weeks off), but she did return home to HMS whenever she wasn’t at work. To the best of my knowledge, she should be considered “Self-sufficient” in HMS and a “worker” in MSO. We registered with the move with the appropriate people in HMS and MSO; she had a resident card, tax number, all of her mail to our HMS address. My wife’s work contract ended after about 7 months. We remained in HMS for an additional 4.5 months as 100% self-sufficient (ie: she wasn’t working, but had made more than enough to disqualify her for social assistance in HMS. So either way we were in HMS for more than 3 months and met our obligations under Article 7(1)b of the Directive).

After about 14 months of living in HMS we moved back to MSO under EEA/EU law (Singh judgement). We applied for family immigration. They rejected us on the grounds that my wife worked in HMO and we had a previous (failed) family immigration attempt. We appealed on the grounds that she was a cross-border worker and that our reasons for moving are of no account because we met our obligations under the Directive. They rejected the appeal, sent it on to the appeals board. The appeals board was waiting on a court judgement on another case (which happened in July 2016); in December we received a rejection again. It was on the basis that we did not “genuinely” move to HMS; specifically they seem to be using O&B c-456/12 as a grounds. That O&B held up that a move must be “genuine and effective” and that the EU citizen must be in the HMS regularly (I think it was specifically defined as daily or at least once a week).

We sent another letter to the appeals board to ask for a reversal on that decision based on EU/EEA law (we were meeting treaty obligations as both a worker and/or self-sufficient), but that was also rejected because they don’t believe the move was “genuine.” Their cited that because my wife "lived at her work" (it’s a boat) for 3 week she was living in MSO. But if we were to apply to family immigration under National law (which requires a place to live in the country) and put her address as the boat she works on for 3 weeks at a time, the immigration board would laugh at us, then reject us outright. So I’m not sure how they can claim that she lives/works in MSO when that really doesn’t constitute a “home.”

Which leads to my questions:

1. Do any of you know of any cases that talk about workers rights/a worker’s home base when the worker can’t return home regularly because of work? I mean there are a lot of jobs that don’t let you return home regularly (airline workers, oil rig workers, truck drivers, cruise and other ship workers to name just a few).

2. Where is the line drawn when it comes to “genuine and effective”? As I understand it, any exercising of treaty rights + a duration of longer than 3 months constitutes “genuine and effective” moves (was that not also covered in O&B?)

3. Anything else I’m missing?

Thanks in advance for the help

[noajthan]

The genuine and effective test applies to assessing work not to assessing a physical move to another country.

Your spouse doesn't appear to be a cross-border worker as she didn't return home to other memberstate daily or at least weekly.
http://europa.eu/youreurope/citizens/wo ... dex_en.htm

And by living in home country for 50% of time its debatable if spouse was even exercising treaty rights rather than visiting a kind of holiday home.

Continuity of residence as a selfsufficient qualified person could have been maintained if only up to 6 months absence from host memberstate in a 12 month period.
If selfsufficient in host memberstate was CSI in place?

[zerOH]

And by living in home country for 50% of time its debatable if spouse was even exercising treaty rights rather than visiting a kind of holiday home.

Continuity of residence as a selfsufficient qualified person could have been maintained if only up to 6 months absence from host memberstate in a 12 month period.
If selfsufficient in host memberstate was CSI in place?

First, yes CSI was in place.

Second, we spent more than 50% of our 14 months in HMS. In addition to only working 7/14 months (while still maintaining sufficient funds to not rely on social assistance), half of those 7 months were spent in HmS as well since my wife is deemed "working" 3 weeks on AND 3 weeks off. That means even when she's not physically at work, she's still getting paid while being at home (potentially of note: her employer pays for travel to/from work from the employee's home. And for the 7 months she was living in HMS but working MSO the employer paid for her travel from one to the other).

How could it have been deemed a holiday if it was over 3 months stay in HMS (O&B decision deems 3 months as the minimum). I mean holiday stays don't tend to constitute having tax cards, residence cards, bank accounts etc...

At the end of the day, the law doesn't account for people who can't return home on a daily basis, but who nevertheless choose to live in one state and work in another. Where do those people fall in the rubric of (x-border) workers?

[noajthan]

I was speculating that the concerned caseworker viewed spouse's activity as merely working in home country (not exercising treaty rights) and visiting a holiday home in a.n.other memberstate.

It appears you had a case on basis of selfsufficiency (in host memberstate).
But it appears caseworker has disagreed.

Which is the home country - is it UK?
(If UK you would have had to have spent more than 3 months and a day away from home for sure; plus having to satisfy centre of life test).

Does home country have a track record of recognising SS case law?

[zerOH]

It's not the UK and it definitely does not have a history of supporting Singh judgments.

I'm just doing my due diligence trying to find any relevant cases/judgements/reasoned opinions that might support a long-term cross border worker. I tried looking at the sailor's union for information, but all I can find is that they don't consider time off the boat (while the worker is still paid) to be a holiday. The fact that they keep throwing "Genuine and effective" at us makes it hard, because what actually constitutes "genuine" exercising of treaty rights where one country considers you a worker and the other considers you self-sufficient?

[noajthan]

It's not the UK and it definitely does not have a history of supporting Singh judgments.

...

So you will probably have a fight on your hands and possible court action required.

You will need to see how the home country has transposed concept of cross-border workers into their local version of EEA Regulations.

For example, the UK case is quite specific:
http://www.eearegulations.co.uk/Latest/ByPage/part1_5

[secret.simon]

Is either country in question (either the MSO or HMS) the UK?

If not, this discussion needs to be moved to the Europe Immigration forum.

[zerOH]

Oh FFS, I swear I was on the European page. Mods, could you possibly move this over? If not, I can re-submit this.

[noajthan]

This seems to be about EEA.

[secret.simon]

But it seems to be non-UK specific. This forum is for "United Kingdom - non-Tier ‹ EEA-route Applications" discussions.

It seems the OP is discussing cross-border applications in EEA/EU countries in the abstract, without referencing UK's interpretation or the UK's applications for this route. It may therefore make more sense for this thread to be moved to the Europe Immigration forum. That will give the thread a wider space and audience, without confusing people about the UK's own flavour of EU law.

[zerOH]

Hello boards. I could benefit from the community hive mind on this topic. Sorry about the length, I'll do my best to keep it brief.


My wife (an EU/EEA national) and I (a TCN) moved to a Host Member State (HMS) together several years ago. She worked in her Member State of Origin (MSO) but lived in the HMS. The nature of her job did not allow her to return home on a daily or weekly basis (she works 3 weeks on 3 weeks off), but she did return home to HMS whenever she wasn’t at work. To the best of my knowledge, she should be considered “Self-sufficient” in HMS and a “worker” in MSO. We registered with the move with the appropriate people in HMS and MSO; she had a resident card, tax number, all of her mail to our HMS address. My wife’s work contract ended after about 7 months. We remained in HMS for an additional 4.5 months as 100% self-sufficient (ie: she wasn’t working, but had made more than enough to disqualify her for social assistance in HMS. So either way we were in HMS for more than 3 months and met our obligations under Article 7(1)b of the Directive).

After about 14 months of living in HMS we moved back to MSO under EEA/EU law (Singh judgement). We applied for family immigration. They rejected us on the grounds that my wife worked in HMO and we had a previous (failed) family immigration attempt. We appealed on the grounds that she was a cross-border worker and that our reasons for moving are of no account because we met our obligations under the Directive. They rejected the appeal, sent it on to the appeals board. The appeals board was waiting on a court judgement on another case (which happened in July 2016); in December we received a rejection again. It was on the basis that we did not “genuinely” move to HMS; specifically they seem to be using O&B c-456/12 as a grounds. That O&B held up that a move must be “genuine and effective” and that the EU citizen must be in the HMS regularly (I think it was specifically defined as daily or at least once a week).

We sent another letter to the appeals board to ask for a reversal on that decision based on EU/EEA law (we were meeting treaty obligations as both a worker and/or self-sufficient), but that was also rejected because they don’t believe the move was “genuine.” They cited that because my wife "lived at her work" (it’s a boat) for 3 week she was living in MSO. But if we were to apply to family immigration under National law (which requires a place to live in the country) and put her address as the boat she works on for 3 weeks at a time, the immigration board would laugh at us, then reject us outright. So I’m not sure how they can claim that she lives/works in MSO when that really doesn’t constitute a “home.”

Which leads to my questions:

1. Do any of you know of any cases that talk about workers rights/a worker’s home base when the worker can’t return home regularly because of work? I mean there are a lot of jobs that don’t let you return home regularly (airline workers, oil rig workers, truck drivers, cruise and other ship workers to name just a few); how are they deemed in terms of EU/EEA law?

2. Where is the line drawn when it comes to “genuine and effective”? As I understand it, any exercising of treaty rights + a duration of longer than 3 months constitutes “genuine and effective” moves (was that not also covered in O&B).

3. Anything else I’m missing?

Thanks in advance for the help

[zerOH]

I admit I accidentally posted this in the wrong forum as this isn't UK specific. I leave it at the discretion of the moderators to whether they'd like to keep this up here or not. It could be still relevant for UK-based discussions since it is based on EEA/EU law. I have, however, also posted in the European forum. Either way, many thanks for the input so far.

[mgb]

The question is where was the primary residence, the temporary residence and the center of life.
The center of life is normally where the spouse has his primary residence except in the interpretation of the uk home office.

[secret.simon]

The question is where was the primary residence, the temporary residence and the center of life.
The center of life is normally where the spouse has his primary residence except in the interpretation of the uk home office.

This thread was moved out of the UK Immigration section, because neither country was the UK. Hence, I do not think the "Center of Life" assessment comes into this. Also, as the OP mentioned, the EEA citizen spends three weeks at work on a boat in her MSO and three weeks with the TCN spouse in the HMS. Given that she spends equal amount of time in both places, it is hard to decide which is her primary place of residence.

I do not have any in-depth knowledge of frontier worker regulations, but it seems that the return to the HMS at least once a week is primarily a social security requirement. Given the paucity of definition in other legislation in this field, however, it is not surprising that government departments apply that definition to all applications of frontier workers.

The judgment of O & B (C‑456/12) seems to suggest that the EEA national should have lived in the HMS for at least 2.5 years and the TCN should have lived in the HMS as the family member of an EEA national for at least a year and a half for their rights to be triggered (see Paragraph 46). You would also want to go through Paragraphs 51 (every residence in an HMS does not create a derivate right of residence) and 59 (short periods, such as weekends, do not constitute meaningful residence).

As regards the definition of "genuine and effective", remember that CJEU/ECJ judgments are not delivered to the people directly affected, but to the national courts to interpret and incorporate into their judgments (it is, in effect, a judge-to-judge chat about the interpretation of EU law). So, your best bet would be to look up the interpretation of "genuine and effective" in the case law/jurisprudence constante in the MSO (as that is where you would want to return).

To the OP: Have you involved Solvit about this matter? And if so, what has been their advice?

I am neither a lawyer nor a law student and the material above was presented to get the discussion going. My interpretation is based on a literal text interpretation of the documents in question.

As an aside, given that the UK is neither the MSO nor the HMS, it is interesting that states in the continental EU are also getting hardline about implementing free movement requirements. It seems it is no longer just a UK concern then.

Further reading
European Parliament Working paper on Frontier Workers in the European Union
A useful website for people working across the Irish border.
Ubiquitous Citizens of Europe: The paradigm of partial migration

[zerOH]

The primary residence, in fact, the only legally recognized residence at the time, was in the HMS. Despite what the immigration department might have argued, my wife's boat is not a legal residence. The "residence" in the HMS was always temporary. Her employer was responsible for her accommodation. When her work cycle ended (after 3 weeks) she had no recourse to receive accommodation and was expected to return "home" for her 3 weeks of off-duty time. The employer was expected to pay for my wife's return-to-home costs (be it plane tickets, train tickets, or taxi fares to/from the port). No one but the immigration board considers her work accommodations to be a "residence"; I believe that argument to be tenuous at best because as I said earlier, if anyone were to apply for family immigration and use the work accommodation as their "residence" they would be rejected outright for failing to provide a home.

My wife went to the tax office in her MSO and notified them of her move. At which point they stopped counting her as resident in MSO and had all of her mail forwarded to the address in HMS. In the HMS my wife registered her move and was given an identity card there; she was assigned a doctor, given a tax number, opened a bank account (which is where her employer deposited her pay), etc.

While my wife was at work, I remained in HMS. When she was finished work, she returned to HMS. We had a lease for an apartment in HMS. We did not have an apartment in MSO (we sublet for 1 year). The center of my wife's interest were in the HMS. (Aside: and if I might nitpick on this time criterion for a bit, how is it more appropriate to only spend one day a week at home than to spend three entire weeks at home (note; the Maritime collective agreement(s) do not count this time on shore as "holiday")? Should such stays not also be weighed with some importance? It just really bothers me that there are many jobs out there where workers can't return home on a daily/weekly basis, but are generally not see as residing where they work (airline crew, oil rig workers, transport workers (ship, truck or train) so what, beyond my wife's nationality, makes this any different? I digress.)

As far as we're concerned, we've met our obligations under Article 7 of the Directive (be it worker while residing in another Member State, or self-sufficient for the duration our stay in HMS after my wife's contract ended). We were in the country for over 1 year. more than 50% of my wife's time was spent in the HMS (50% while working plus 4.5 months of remaining in HMS while not working). I believe ¶46 of O&B that mentions 2.5 and 1.5 year (respectively) is dealing with the facts specific to the case at hand in O&B. But, O&B has actually established a time criterion that would satisfy the genuine and effective residence. By invoking the Article 7 of the Directive, which specifically deals with stays over 3 months, O&B establishes anything over 3 months as meeting treaty obligations, thus being enough to constitute a genuine and effective move (¶54).

Plus, working in one member state while residing in another is allowed even if that member state is the MSO, see S&G and Ritter-Coulais. But from what I can tell, there's no specific case law that deals with offshore/long-term (by virtue of the job) workers being also cross-border workers (except, perhaps seasonal workers, but I don't think that's the situation here). The closest thing I found of any sort of help was this definition of frontier worker:

'frontier worker' means any worker employed in the territory of a Member State and residing in the territory of another Member State to which he returns as a rule daily or at least once a week; however, a frontier worker who is posted elsewhere in the territory of the same or another Member State by the undertaking to which he is normally attached and is prevented on account of such posting from returning daily or at least once a week to the place where he resides shall nevertheless retain the status of frontier worker for a period not exceeding four months(emphasis added).Source

Which at least leaves the definition of frontier worker open to exceptions where the work may be prohibiting returns home.

It is also interesting that there seems to be three different definitions of "commuter worker" or "frontier worker" at play in the MSO. The social services (unemployment etc...) deem my wife a type of frontier worker, but because she doesn't return daily/weekly, it's labelled differently; however, the social benefits received (if such were to be received) would be exactly the same as if she were a "real" frontier worker so the distinction seems unnecessary. The tax office considers my wife to be 100% a commuter and lays down the conditions only that she have to travel for work and that she returns for over-night stays at "home" at least 4 or 5 times a year. Immigration seems to have taken on the definition of frontier worker that has the time criterion ("as a rule, daily or at least once a week"), but that is, again, primarily found in laws involving social benefits. Additionally, I find it odd that in a law, which is usually quite precise with its language, they are using the idiom "as a rule"; it does not mean "it is a rule," but in fact means "generally" or "usually" (but maybe that's just me nitpicking at imprecise language).

Solvit was involved briefly before, helped me form the basis of the first appeal (which was rejected). We'll be speaking with a lawyer soon, but I like to be prepared/do research/know our rights.

I have very little doubt that we fall under the free movement rubrics (both Directive 2004/38 and Article 21 TFEU), but it's hard to find similar circumstances established in law when it comes to exercising treaty rights while being a cross-border (long-term) worker.

[noajthan]

Clearly your case is pioneering the cause of frontier workers in wife's country of origin as it appears you have nothing to go on that has been transposed into that country's domestic law for EU.

[secret.simon]

I believe that your case is extremely specific, not only because of the element of cross-border/frontier working, but also because of the very long breaks in residence (3 weeks at a time) in residence in the HMS, further complicated by the initial refusal (from the sounds of it, under national law).

After about 14 months of living in HMS we moved back to MSO under EEA/EU law (Singh judgement). We applied for family immigration. They rejected us on the grounds that my wife worked in HMO and we had a previous (failed) family immigration attempt.

I have very little doubt that we fall under the free movement rubrics (both Directive 2004/38 and Article 21 TFEU), but it's hard to find similar circumstances established in law when it comes to exercising treaty rights while being a cross-border (long-term) worker.

You might have very little doubt, but undeniably the immigration department doubted and hence rejected your application. I can see their point. The EEA national spends half her time and works all her working hours in the MSO. It is hard to escape the conclusion that her entire exercise of treaty rights is in the MSO.

The crucial question, as I understand it from a teleological understanding of EU law, is; would denying you a residence permit prevent her from moving across EU borders and interfere with her mobility within the EU? And the answer is no, as she is able to do so quite easily, even with you resident in the HMS, but not in the MSO.

As your case is so uniquely specific, I doubt anybody here is qualified to substantially advise you in any meaningful way. You are, as noajthan put so picturesquely, at the frontier of development in this field. I suggest that you take your case through the courts in the MSO, so that the law is created in this area.

EU law is intentionally vague in its phraseology, because it works through the national legal systems of diverse countries and must therefore provide for a diversity of understanding of the same law. Thus, for example, Poland does not accept a gay couple as capable of forming a marriage, while the UK and most western EU countries do. Therefore, Poland would accept a gay couple only after providing the proof required of a "durable partnership" and the gay partner, albeit a direct family member in the UK, would be only an extended family member in Poland.

Similarly, the phrase "genuine and effective" is left for the national courts to interpret in light of domestic law (both statute and through the legal system).

Therefore, the only way to definitively know the answer in your very specific case is to take it through the courts and then get back to us, so that others can follow in your stead.

[secret.simon]

Your case is very interesting and intriguing and I did some further research.

This EuropeanLawBlog post and EUtopia blog post agree with you that a residence more than three months is necessary to trigger the relevant provisions of EU law, but they also agree that it is not clear from the judgments (both O&B and S&G) as to what constitutes genuine residence less than permanent residence (PR in the HMS would definitely count as "genuine and effective" residence).

Plus, working in one member state while residing in another is allowed even if that member state is the MSO, see S&G and Ritter-Coulais.

I am completely mystified by your referencing Ritter-Coulais. It is not in contention that an EEA Citizen can work across EU borders, including those of his own nation-state.

'frontier worker' means any worker employed in the territory of a Member State and residing in the territory of another Member State to which he returns as a rule daily or at least once a week; however, a frontier worker who is posted elsewhere in the territory of the same or another Member State by the undertaking to which he is normally attached and is prevented on account of such posting from returning daily or at least once a week to the place where he resides shall nevertheless retain the status of frontier worker for a period not exceeding four months(emphasis added).Source

The quote that you provided is from EU social security legislation and not directly applicable to rules about family members under Directive 2004/38/EC.

The question, as I see it, is: Is an EEA citizen, who works in the MSO and who spends half her time in a HMS and half her time in the MSO, genuinely and effectively resident in the HMS? I would say that the preponderance of her life (work + half the time) being in the MSO, her residence in the HMS is not "effective" (I will leave the question of "genuine" to others).

Further reading: EU Citizenship, Nationality and Migrant status

[noajthan]

It would be clearcut if the worker was not working in their home country but was transferring between two third-party memberstates.

The OP's circumstances mean that home country can, uncharitably and without much sign of any European laissez-faire, question whether their national is even exercising treaty rights at all;
they seem to see it more as working at home and holidaying in another country from time to time.

[secret.simon]

they seem to see it more as working at home and holidaying in another country from time to time.

That is an accurate summary of the situation of the EEA citizen in this case.

The crux of the matter is, would denying the family member a residence permit prevent the EEA citizen from exercising her freedom of movement? I think that the history of the OP suggests that it does not.

[treena.oakley]

This is a really interesting case!

"It would be clearcut if the worker was not working in their home country but was transferring between two third-party memberstates."

what I'm wondering is if the nationality of OP's wife was different. Hypothetically speaking what if the circumstances were the same, but OP's wife was from country X, living in country Y (HMS), working in country Z (MSO). Would country Z be treating that application differently? If yes, then wouldn't there be a case for equal treatment of workers? If no, then why are they treated differently?

another thing I wonder is the time OP's wife wasn't working at all. Wouldn't that be enough to fall under self-sufficient rules? Genuinely curious about that one because it still would meet the rules of the directive and the criteria set out in O&B.

[zerOH]

The quote that you provided is from EU social security legislation and not directly applicable to rules about family members under Directive 2004/38/EC.

That's true and I never intended for it to be read as such. I've yet to find any definition of cross-border worker directly applicable to family members in the Directive. I've read national law and it just doesn't speak about x-border workers except in relation to social benefits. It only speaks about economically active or economically inactive in the HMS. Almost all of the definitions of cross-border worker appear in laws dealing with social benefits and from the best of my understanding, that is where the definition of frontier worker with the temporal criterion originates.

I mentioned Ritter-Coulais because the first rejection letter actually argued that cross-border work didn't qualify as exercising treaty rights if the employment is in the MSO. They have since backed down on that argument, but are holding claim that because my wife lived at work she was residing in MSO.

And again, we lived for more than 3 months in HMS under our own means, with CSI. There was no spending half of that time in MSO. 100% of 4.5 months was spent in HMS. Does that not fall under the Article 7 of the Directive? Is that also exercising treaty rights?

The MSO cannot claim that the 3 weeks off is vacation time. It's time off in compensation for the fact that during the 3 weeks my wife is at work she cannot actually or physically leave work. I'm also curious how this 3 weeks on/off plays in light of AG Sharpston's opinion of O&B and S&G

"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 interest 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"(¶159(3))

[secret.simon]

another thing I wonder is the time OP's wife wasn't working at all. Wouldn't that be enough to fall under self-sufficient rules? Genuinely curious about that one because it still would meet the rules of the directive and the criteria set out in O&B.

If the family, including the EEA citizen, were self-sufficient (with comprehensive health insurance) and based entirely within the HMS (including weekend and/or occasional trips to the MSO), then there is no doubt that the provisions of SS would be triggered on return of the whole family to the MSO.

Hypothetically speaking what if the circumstances were the same, but OP's wife was from country X, living in country Y (HMS), working in country Z (MSO). Would country Z be treating that application differently?

In such a case, pure freedom of movement rules would have been triggered, as the EEA citizen would be working and residing wholly in EEA members states of which she is not a national. SS would be irrelevant.

The wrinkle in this specific case is that the EEA citizen is spending a significant part (half) of her residence and working in the MSO. The catch then is, is the residence in the HMS "genuine and effective" enough to trigger SS/other EU law? It is established EU law that residence within the MSO does not count under the freedom of movement rules.

If yes, then wouldn't there be a case for equal treatment of workers? If no, then why are they treated differently?

EU law in this field is very specific. A citizen, who is a national of country X working in country X does not trigger freedom of movement rights, but his colleague at the next table, in the same work environment, doing the same job and getting paid the same, who is a national of country Y does. There is no equality in that, is there?

The objective of EU law in this field is to make free movement of people a non-issue, by allowing people to port their families wherever they are. But in this case, given that the EEA citizen is able to work and reside just fine in her MSO and reside with her family in the HMS just fine, are any rights triggered?

The AG's opinion is not a part of the judgment and hence does not matter. It would be of persuasive value, but is not a part of EU law. The Court's judgment of course is a part of EU law.

I think you are going to have to take this through the courts and create new law.

[mgb]

I think the main question is primary residence and temporary residence.
The next question is if a self-sufficient person can use the surrinder singh route.
If a worker can and a self-sufficient person not would be discrimination and a offence against article 18.
Next what could be more genuine than to spend the days off at the center of life and primary residence and live the family life there.

[mgb]

Another idea.
C‑456/12 Paragraph 53
"Where, during the genuine residence of the Union citizen in the host Member State, pursuant to and in conformity with the conditions set out in Article 7(1) and (2) of Directive 2004/38, family life is created or strengthened in that Member State, the effectiveness of the rights conferred on the Union citizen by Article 21(1) TFEU requires that the citizen’s family life in the host Member State may continue on returning to the Member of State of which he is a national, through the grant of a derived right of residence to the family member who is a third‑country national."

The over 3 month from article 7 is reached with a 4 1/2 month residence as self-sufficient in the guest country.
What can be not genuine and effective at a 4 1/2 month residence in the guest country?