Amendment to EEA Regulation from 1/01/2014 Singh diluted

[357mag]

Thanks for posting that information Rosebead.

[jinkazama_11]

UKBA have released the new EEA2 form but I can't see any changes to SECTION 5 – SURINDER SINGH CASES. Also no changes to documents section of the form. I can't find new guidance as well.
what you think guys?

[Humanity]

UKBA have released the new EEA2 form but I can't see any changes to SECTION 5 – SURINDER SINGH CASES. Also no changes to documents section of the form. I can't find new guidance as well.
what you think guys?

I think it's underneath the document requirement for Surinder. They seem to require more documentation for employment, I can't ascertain the obvious since am not in possession of the old format.

RELEVANT UK LEGISLATION
The The relevant legislation for applications on this form is the Immigration
(European Economic Area) Regulations 2006 (as amended). You can find these
Regulations on the following website: www.legislation.gov.uk

Thus new application will be subjected to ' new interpretation' .

[jinkazama_11]

Well there is no change in documents section as well. how one will know what documents he/she have to provide to prove center of life and integration requirements.

[Humanity]

Well there is no change in documents section as well. how one will know what documents he/she have to provide to prove center of life and integration requirements.

That's where the 'abuse of power' comes in, it will be open to any interpretation that suits them , sooner or later the official guideline will come out.

[AngieD]

I have just seen the first refusal for a Family Permit based on the new rules. The applicant in question actually applied and handed in documents for the Permit before 1st January - embassy appointment was actually on 30 December 2013. He is going to post the full reasons for the refusal later on the Facebook Group I belong to but "not convinced moved centre of life" was said on the refusal.

The first of many I would imagine

[dalebutt]

AngieD, do you by any chance have an idea of the total time the applicant has spent in the other member state? I strongly believe that the requirement one should meet is that of being a worker? If one's a worker in another state, restricting return due to unnecessary requirement to satisfy other condition is contrary to SS judgement, this requirement will not suffice the HO's argument in my view.

[Obie]

In the of this person, the refusal is clearly unlawful, as the person is covered by transitional restriction. The application was made before the changes came into effect.

There are no guidance at present. One can only wonder how tthe ECO is applying these provision.

[AngieD]

AngieD, do you by any chance have an idea of the total time the applicant has spent in the other member state? I strongly believe that the requirement one should meet is that of being a worker? If one's a worker in another state, restricting return due to unnecessary requirement to satisfy other condition is contrary to SS judgement, this requirement will not suffice the HO's argument in my view.

I am waiting for him to post the full refusal from the HO. The application was done in Paris and he states that he registered in France as self employed in September 2013. He says he submitted evidence to support this - tax return, bank statements, self employment registration certificate.

I will let you know when he gives the full reasons.

Also his non eu wife has had Code 1A in the past for visit to UK issued as a result of him exercising treaty rights/Singh

[dalebutt]

I agree with you obie, this seems more of an ambitious ECO, not surprising though, these lot would not interpret EU law correctly even if it fell on their collective heads, AngieD perhaps a member by username jellybean might want to take notice of your post.

[AngieD]

he has now posted the refusal notice, which I have redacted -

You have stated that you wish to visit the United kingdom with your British spouse, Mr ........... You have provided no information regarding your intended visit for which you are making this application. I acknowledge that you have provided a photocopy of your spouse's British passport, and your original Gibraltarian marriage certificate. You have provided documents to show that Mr ......... has registered as self-employed with "URSSAF", and that tax has been paid to this body. I note, however, that you and Mr ............ began your residence in France in October 2013, since which time, you have both returned to the United Kingdom on three occasions. The single invoice provided dated after October 2013, being dated 29th November 2013, shows that your spouse's customer is a company based in the United Kingdom, as are all the invoices prior to this date. You have not provided any evidence that you have sought to register your residence with the appropriate French authorities in order to obtain a residence permit ("titre de sejour") in order to demonstrate your right to reside. I note that your tenancy agreement is for a duration of three months that ended on 31st December 2013, the day after you submitted your application, and it is also a tenancy agreement under British law, namely the Housing Act 1988, and it is therefore not clear what legal standing this has in France. Due to these reasons, I am not satisfied that your British national spouse has transferred his centre of life to another EEA member state."


Not as straight forward as I first thought, going by his comments prior to posting this

However, the fact still remains that the application was made prior to the deadline.

[Jellybean105]

Thanks AngieD and dalebutt (for thinking of me). It helps to know the exact refusal reasons. I guess by the time the UK got it they put it under the new rules, which is wrong but other then that I don't think the application itself was very strong.
I don't want to take over the thread but in short I have been living in Ireland since Feb 2012 and self-employed since and we have applied for a resident card too which should come soon hopefully. Only thing is we don't have a lease agreement and some orders are in GBP.
How did they know they returned 3 times? Due to the non-eu nationals entry stamp on his passport?

[AngieD]

Thanks AngieD and dalebutt (for thinking of me). It helps to know the exact refusal reasons. I guess by the time the UK got it they put it under the new rules, which is wrong but other then that I don't think the application itself was very strong.
I don't want to take over the thread but in short I have been living in Ireland since Feb 2012 and self-employed since and we have applied for a resident card too which should come soon hopefully. Only thing is we don't have a lease agreement and some orders are in GBP.
How did they know they returned 3 times? Due to the non-eu nationals entry stamp on his passport?

Yep the non eu had Code 1A's in passport

[dalebutt]

Yes jellybean I agree that the application was not watertight.

[chaoclive]

Not a strong application but at least we see the reasons that they are using and have a little more information about what they need to look out for.

[jinkazama_11]

Is it possible for HO to check if an EU national is travelling between UK and other EU state. I travel to UK every month for one weekend. At border control i usually show them my passport. No one scans my passport.

[EUsmileWEallsmile]

Is it possible for HO to check if an EU national is travelling between UK and other EU state. I travel to UK every month for one weekend. At border control i usually show them my passport. No one scans my passport.

Would there be any reason for you to declare or not to disclose this? Information can be obtained from many sources.

[357mag]

Interesting to me is that an EEA citizen coming to the UK does not have to show evidence of working in their EEA state nor evidence of residence. So are the rules applied to British citizens and their family members discriminatory?
A fairer scheme would be to treat the UK citizen as any other EEA transient worker and require that they are worker, self employed, student or self sufficient within 3 months of (re)entering the UK or that they should return from whence they came.

[jinkazama_11]

I dont think there is a section on eea2 form to declare this. I dont mind declaring it but ECO can argue that i travelled to UK when i was exercising treaty rights in Ireland the same way he objected to this other person who's refusal letter was posted.

[rosebead]

I recently wrote to the European Union Free Movement Policy Team at the Home Office to ask for clarification on the new Surinder Singh rules. I thought I'd post my email here and their subsequent reply, as it might shed more light on what the Home Office means by "centre of life".

My email to the Home Office:

On 3 December 2013, the UK government adopted the Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2013 (SI No 3032) which amend Regulation 9 of the Immigration (EEA) Regulations. The new rules take effect on 1 January 2014. Please could you clarify what the amendment to Regulation 9 will mean for my own circumstances. I plan to take up a job offer in the EU and I wish to bring my non-EU partner with me, who is currently residing outside of the UK. I am a council tenant and while I am working abroad in the EU I will be keeping up with the rental payments on my council flat as I do not wish to lose my flat in the UK in case things don't turn out the way I would like in the EU. If things don't work out in the EU I will have to return to the UK, and I would like to know whether I will be able to return with my non-EU partner under the new UK restrictions on Surinder Singh family reunification. Since I intend to keep up with the rental payments on my council flat in the UK while I am working in the EU, will that be seen as my "centre of life" not having been transferred to the EU?

Their reply:

In order to satisfy regulation 9(2)(c) of the Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2013, you have correctly identified that you will need to show that you have transferred the centre of your life to another EEA member state.

Regulation 9(3) lists factors to be taken into account when considering whether this has been achieved:

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.


Point (a) is fairly self-explanatory, that is the longer the period of time you spend resident in another EEA member state as a worker or self-employed person, the more likely it is that you will have transferred the centre of your life. Although I should stress that there is no minimum period of time imposed by the amendment.

Point (b) is where you spend the majority of your time. If you have accommodation in France, for example, and spend the majority of your time there, keeping up on your rent payments and maintaining a council flat in the UK will not count against you. It should be emphasised that the amendment does not require the British citizen to maintain only one residence and you are free to maintain your council flat without being penalised.

Point (c) requires the British citizen to demonstrate that they have some integration in their host member state. For example, living in France and learning the French language may be a way to show integration.

I cannot advise whether or not your non-EEA national partner will qualify under regulation 9 at the moment, as you have not left the UK and any advice would be based on hypothetical circumstances.

I hope this is useful to you.

If you would like to contact the Home Office yourself about the new Surinder Singh rules, here are the relevant email addresses:

Deborah.Morrison@homeoffice.gsi.gov.uk
EuropeanOperational@homeoffice.gsi.gov.uk

[rosebead]

I found a Freedom Of Information request to the Home Office at the WhatDoTheyKnow site for all policy updates, Home Office circulars and full copies of guidance in relation to the new Surinder Singh rules, which the Home Office has answered:

https://www.whatdotheyknow.com/request/ ... e_for_suri


This is some of the guidance issued by the Home Office to case workers assessing applications under the new SS rules:

The period of residence in the EEA state as a worker or self-employed person:
There is still no minimum time period that must be spent in the host member state and all cases must be assessed on their own merits.

The location of the British citizen’s principal residence:
The principal residence is the place and country where the British citizen’s life is primarily based. 'Primarily’ does not mean ‘solely’ – e.g. applications cannot be refused if a British citizen returns to the UK regularly, so long as their principal residence is in another EEA member state.

The degree of integration of the British citizen in the EEA state:
There are many factors that may indicate the degree of integration, examples may include:
• Does the British citizen have any children born in the host member state? If so, are the children attending schools in the host member state?
• Does the British citizen have any other family members resident in the host member state?
• Has the British citizen immersed themselves into the life and culture of the host member state? For example, have they bought property there? Do they speak the language? Are they involved with the local community?


I think there is too much leeway for subjective interpretation by case workers for assessing "centre of life", though it is interesting to note this piece of guidance fom the Home Office to case workers:

It should be noted that the factors set out in regulation 9(3) are not determinative. The question as to whether the British citizen would be deterred from exercising their free movement rights were their spouse/civil partner refused, must be determined having regard to all relevant factors.

[negiyk]

Hello friends, thanks rosebead for detailed information. My problem is that my mother alone there in India. She was there with my brother but he passed away last year and before that my sister also passed away, being in depression and alone affect here health in future. She came here once on visiting visa, I want to apply for the dependent visa but that time and still now she is under 65 so couldn't able to apply. But now the rules changed and now its seems impossible also. She is widowed and alone there ,friends and families are there but no one want to extend there support. I cannt leave her there like this, moving with family back to India means back to square one.
I am working for company here they have office e in Ireland, is it possible that can go through that company and work there for 6 months. Bring my mother there as dependent and apply for her residence card there and after 6 months move back to UK leaving my family here don't want to disturb there life, job and school. Please guide me what to do?
Last option which I have is to go back to India and settle there but have to go alone , kids won't be joining me there

[Jambo]

Hello friends, thanks rosebead for detailed information. My problem is that my mother alone there in India. She was there with my brother but he passed away last year and before that my sister also passed away, being in depression and alone affect here health in future. She came here once on visiting visa, I want to apply for the dependent visa but that time and still now she is under 65 so couldn't able to apply. But now the rules changed and now its seems impossible also. She is widowed and alone there ,friends and families are there but no one want to extend there support. I can dump here there like this, moving with family back to India means back to square one.
I am working for company here they have office e in Ireland, is it possible that can go through that company and work there for 6 months. Bring my mother there as dependent and apply for her residence card there and after 6 months move back to UK leaving my family here don't want to disturb there life, job and school. Please guide me what to do?
Last option which I have is to go back to India and settle there but have to go alone , kids won't be joining me there

If you leave your family in the UK, it is very likely the HO would refuse the application under the new rules.

[negiyk]

Thanks for your reply. If suppose I take my family with me, what's the possibilities to get dependent visa for mother.

[rosebead]

It seems to me that these new rules about "centre of life" resemble the idea of "habitual residence", a conundrum that often crops up when determing eligibility for social security in relation to EU migrants. The European Commission recently published a guide for Member States to clarify the concept of habitual residence. This guide contains examples of both temporary and habitual residence. Here is the European Commission's press release about the guide, and here is the guide.

However, any kind of a habitual residence test for SS applications goes against the grain of Surinder Singh case law which was wholly about not deterring any EU citizen from exercising their treaty rights. I can't think of many bigger deterrences to exercising treaty rights than being forced to cut ties with your home country in order to establish yourself in a host country.

It is interesting to note that the UK since January 1 2014 stipulates that only people who have been resident in the UK for 3 months will be able to satisfy their Habitual Residence Test for means-tested benefits, and so access Jobseeker's Allowance. So 3 months of residence in the UK is sufficient to satisfy one criteria for determining habitual residence in this country, hmmm.