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 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 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 UK
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.
