Updating Surinder Singh – the latest EEA regulations give effect to O and B

Our EEA immigration solicitors recently explained how changes in the latest EEA regulations (that came into force on 24th July 2018) now allow dual UK/EU citizens the opportunity to rely on EU rules regarding a spouse even if Surinder Singh is not applicable. You can read about that change in this blog. The latest EEA Regulations also (belatedly) update the position on Surinder Singh itself, to take account of the case of C456/12 O and B although those interested in the right to family life and immigration case law may wonder at whether the amendments add anything. 

O and B update Surinder Singh

Surinder Singh is one of the key pieces of EU case law that every UK immigration lawyer knows inside out. The ruling was fundamental for free movement, affecting EU citizens travelling from one member state to another to exercise treaty rights. It essentially mean that a non-EU citizen could rely on EU rules (rather than the more restrictive UK immigration rules) if he or she had lived in another member state with a British citizen who was exercising treaty rights in that other member state, in a ‘genuine relationship’, and then moved back to the UK together. Any of the best immigration lawyers in London will be able to advise further on the impact this case had on UK law.

The case of O and B concerned decisions by the Netherlands’ Minister for immigration, Integration and Asylum in two separate cases. Mr O was a Nigerian national. He had married his sponsor in 2006 and had lived in Spain between 2007 and April 2010. He had documentation to support their relationship and the fact that they were living together. His sponsor indicated that she had resided in Spain with Mr O for 2 months but had had to return to the Netherlands to find work. She had regularly returned to Spain to spend holidays with Mr O. From July 2010, Mr O was registered at the same address as his sponsor in the Netherlands, but the Minister refused his certificate of residence.

Mr B was a Moroccan national who lived in the Netherlands with his partner, a Netherlands’ national. After receiving a 2 month prison sentence for using a false passport, he was declared ‘undesirable’ so the couple moved to Belgium and Mr B lived there from 2005 until 2007 in an apartment rented by his partner. Mr B’s partner resided there at weekends. He was refused residence in Belgium. The couple married in July 2007 and in December 2008, Mr B successfully applied to have his declaration of undesirability lifted, but he was nevertheless rejected when he applied for a residence document.

‘Workers’ or ‘Union citizens’?

The questions referred to the Court of Justice of the European Union (CJEU) essentially concerned the distinction on the facts between these cases. In bother O and B, the EU citizen concerned travelled backwards and forwards between her home EU state and the host member state for the purposes of visiting her partner, rather than because she was working in the host member state. The referring court highlighted the difference between someone exercising rights Treaty rights as a worker, and someone, such as in this case, who was visiting the host EU state as a Union citizen, under to Article 21(1) of the Treaty on the Functioning of the European Union (TFEU), and as recipients of services under Article 56 TFEU. The referring court also requested guidance on whether the EU citizen had to spend a minimum amount of time residing in the host member state before the non-EU citizen partner could benefit from a right of residence in the home member state.

The decision of the CJEU

The CJEU considered that A21(1) of the TFEU had to be interpreted so that where a Union citizen had created or strengthened genuine family life with a non-EU citizen in a host member state, the provisions of the free movement directive applied by analogy when that Union citizen returns to his or her home country with the family member concerned. As such there should be no distinction between the case where an EU citizen had travelled to the host member state to exercise rights under the free movement directive, and that where the EU citizen travelled as a Union citizen under the TFEU. 

Changes to the EEA regulations

As a result of O and B the UK government has updated the EEA regulations to incorporate 2 further conditions to be fulfilled by anyone wishing to rely on the Surinder Singh route. These are that the applicant must show that they were a family member of the UK national in another EEA state, and genuine family life was created or strengthened whole they lived in the host member state.

A number of top London immigration lawyers have suggested that the updates to the EEA regulations in this respect add little to Surinder Singh. Applicants who can already satisfy the ‘original’ Surinder Singh criteria are likely to be able to satisfy the additional conditions.

For any questions about EU immigration and the status of family members of EU citizens, especially in the run up to Brexit, it is worth contacting the best immigration solicitors in London that you can find. OTS Solicitors are Legal 500 recommended immigration lawyers with an excellent track record in immigration and Human Rights. Book your appointment today by calling 0203 959 9123.

 

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