noajthan wrote:Home country evidently see sponsor as their citizen simply working in their own home country and who has access to a property they could live in (but chose to let out and live abroad).
Of note here: yes, that seems a fair assessment of the current argument from immigration. But I should point out that in their most recent letter to us, they did not deny the fact that the property we previously rented was occupied and that, by their understanding we had given up our right to reside there. They are now currently arguing that my wife's work accommodation (because she must live at work for those 3 weeks) is her "residence" in MSO. I don't understand their argument here.
noajthan wrote:sponsor's home country evidently does not accept one or more of:
- the genuine element;
conformity with some/all of Directive;
they may not recognise selfsufficiency as a component of Surinder Singh (as UK used not to do);
MSO has been in a lot of trouble with the courts over these very issues. Decisions have come down, even as recently as this summer, which have, time and again, reaffirmed the economically inactive person's right to reside in a HMS and, upon return to the MSO derive rights of residence for TCN pursuant to EC law. They have this implemented in their national immigration laws, but compliance is relatively low and they are constantly pushing to find ways to not comply (including seeking out independent legal advice, and being told they had to comply).
At any rate, this was originally why we were rejected (rejection #1: they didn't believe wife was self-sufficient). Upon appeal, we reminded them of this fact (among other things). They pivoted and in rejection #2 they referenced O&B saying they did not believe us to be "genuine and effective" residents in HMS because wife lived/worked in MSO and did not return to HMS daily/weekly. Again, missing the whole 4+months self-sufficient and also really failing to provide a reason
why they believed we weren't meeting Article 7. Upon second appeal we reminded them that we were self-sufficient for those 4+ months and used O&B. We also pointed out that wife was not permitted to return home by virtue of her job and that my wife's union contract was very clear that 3 weeks off is not "holiday"/"vacation." But in rejection #3 they argued that because wife lived in Norway at her workplace (see above) she was not genuinely residing in HMS. That's where we currently stand. Every time we correct them in their reading of the law they pivot and find another, similar route. Unfortunately that was our last appeal, so we must now seek a reversal of the decision in the court system.
I appreciate the back-and-forth that everyone here has provided. It does appear as if, legally, we're at the precipice of this type of situation (I have to believe we're not the first, but perhaps the only ones pushing back). I wish that weren't the case. I think, and correct me if I'm wrong, but there's two ways to go about this (and I suppose there's nothing stopping us from doing both).
The first is that we push on the self-sufficient part and point to the fact that we lived together in HMS for more than 3 months and met article 7 of the directive.
The second is that we push back on the definition of "frontier worker" because it's too limiting in its scope for workers who are not allowed to return home on a daily basis. From what I've been reading, different EU commissions have reports suggesting that these temporal criteria are there, but that they might/should be relaxed given the changing nature of the workforce and the improvements with transnational transportation. Obviously nothing official, but there are already calls for it.
I was thinking the temporal criterion last night. It cannot be about physical time spent at home and must be about the frequency of return. In the case of the former: I don't think this argument could hold up. If someone is allowed to return once a week (presumably only for one 24h period) it could be argued that in the span of a month my wife spends more physical time at home than that person would (even with 3 weeks spent absent).
So it must be about the frequency of return and the worker's
ability and/or choice to return at least once a week. And to that point, I would argue, perhaps naively, that is something, due to the nature of her job, that my wife has no control over. When at work
she has neither the ability nor the choice to return home; if given the choice she would, at the very minimum, have returned to HMS at least once a week. So my question always falls back to: why is it that she can be penalized for something that other workers may freely choose, but my wife (and workers like her) are denied that option? I don't think there's a satisfactory answer to this question because the definition of frontier worker fails to account for atypical work and all the laws/definitions regarding frontier workers tend to be in social security-based cases and those don't often support or create differences between frontier workers and non-frontier workers. That said, it is very hard to find cases that deal with both long-term and cross-border workers.
