Immigration: where British nationals lose out

This article compares the positions of British nationals and European Economic Area (EEA) nationals in relation to immigration to the UK of their family members whose nationality is outwith EEA or who are third country nationals (“TCN”).

Yes, there is an enormous difference, owing to the different sets of laws applicable. British nationals and their TCN are governed by national law, whereas EEA nationals and their TCN are governed by European law.

Law governing EEA nationals and their TCN

The Treaty on the Functioning of the European Union (“the Treaty”) does not confer rights directly on TCN, but indirectly they do derive rights of residence from the provisions of the Treaty. Article 45 (freedom of movement of workers), and article 56 (freedom to provide services) of the Treaty provide that to make articles 45 and 56 effective, a right of residence should be granted to TCN of EEA nationals (see S & G and Carpenter cases below).

Article 20 of the Treaty confers Union citizenship on all people holding citizenship of a member country. Therefore TCN parents of children who are citizens derive their right of residence under article 20: Ruiz Zambrano v Belgium (C-34/09).

Directive 2004/38/EC of the European Parliament and the Council outlines the rights of EEA nationals and their relatives to move and reside freely in EEA countries other than their home country.

In the UK, the Directive has been transposed into national law through the Immigration (European Economic Area) Regulations 2006.

Law governing British nationals and their TCN

The entry and residence of TCN of British nationals are regulated by Appendix FM of the immigration rules (“AppFM”). The Immigration Rules are framed by the executive by the power conferred under s 3(b) of the Immigration Act 1971, but these need to be approved by Parliament.

Immigration requirements for TCN partners of a British national

If a British national wants to bring to the UK a TCN partner (i.e. spouse, fiancé(e), civil partner or unmarried partner), then AppFM requires the British national to demonstrate they would be able to offer adequate accommodation to their partner and that the couple have earnings of at least £18,600 p.a. If the couple do not earn at all, they must have had cash savings of £62,500 for at least six months.

In July 2013 the High Court in MM v Secretary of State for the Home Department [2013] EWHC 1900 (Admin) held that the financial requirements in AppFM were not unlawfully discriminatory, but were unfair and disproportionate interference with genuine spousal relationships and therefore with the right to family life. The court made five suggestions to the Home Office at para 124 of its decision, the main suggestion being that the minimum income threshold should be around £13,400, which is close to the adult minimum wage for a 40 hour week. The Home Office appealed the decision; the appeal was heard by the Court of Appeal in the first week of March and judgment is awaited. Even if the appeal of the Secretary of State is dismissed, it is clear that a financial requirement will remain in some shape or form.

Finally, a TCN partner of a British national is also required to satisfy the English language requirement.

Immigration requirements for partners of an EEA national

If an EEA national wants to bring their TCN partner to live in the UK with them, the only requirement to be satisfied is that the EEA national is residing in the UK as a qualified person. A qualified person, per reg 6, is defined as a jobseeker, worker, self employed, self sufficient or a student. Hence, if an EEA national wants to bring their partner, they do not need to demonstrate anything other than that they are exercising their Treaty rights in the UK as a qualified person. Regulation 14 says that a qualified person and his TCN are entitled to reside in the UK as long as the EEA national remains a qualified person.

Immigration requirements for TCN adult dependant relatives of British nationals

If a British national wants to bring a TCN adult dependant to the UK, it has to be demonstrated that the adult requires long term care as a result of age, illness or disability. Long term care is regarded as assistance to perform daily tasks such as washing, dressing and cooking. There is an onus on the adult dependant applicant to prove that such help cannot be obtained in the home country or through financial help from the British national. In addition, the UK based sponsor should be able to demonstrate that they are in possession of adequate accommodation and funds to take care of their relative. The sponsor is also required to give an undertaking that no public funds will be sought for the relative. This is a high-threshold test, and it is a criticism that in many cases the adult dependant is often too ill to travel by the time they might be eligible to enter the UK.

Immigration requirements for TCN adult dependant relatives of EEA nationals

Regulations 7 and 8 state that people who qualify as TCN of an EEA national include partners, children under 21 of an EEA national and their partner, adult dependant relatives of the EEA national and their partner, or relatives who are members of the household of the EEA national or their partner.

Dependency or membership of the same household as an EEA national are alternative ways of qualifying as an adult TCN of an EEA national for the purposes of the regulations. The EEA national should have acquired EU citizenship during the material time, i.e. when his TCN was dependent or was living in the same household. See Moneke (EEA – OFMs) Nigeria [2011] UKUT 00341(IAC).

According to chapter 2 of the European Case Worker Instructions (policy guidance published by the Home Office), dependency is to mean only financial dependency to meet essential needs, though it could be of choice rather than necessity (see also Lim (EEA – dependency) [2013] UKUT 437 (IAC)). That dependency need not have arisen in the country of origin before the TCN adult dependant moved to join the EEA national in the UK. Dependency could have arisen in the UK for the first time: see Pedro v Secretary of State for Work & Pensions [2009] EWCA Civ 1358.

If the TCN, immediate or extended, were residing in the same household where the EEA national resided, then there is no requirement of proving dependency. Hence, the adult relatives of the EEA nationals or their partners are required to prove only that they are financially dependent on the EEA national or are members of the same household if they want to have a right to residence in the UK.

Comparisons

In view of the above discussion it is crystal clear that AppFM lays down numerous strict requirements for the British nationals and their partners, whereas the only requirement EEA nationals and their partners require to satisfy is that the EEA national should be a qualified person in the UK.

The adult dependant TCN of British nationals have to be very ill, old or incapable of performing their daily tasks, before they could qualify to join their British national sponsors, but in the case of adult dependant TCN of EEA nationals, all they have to prove is that they are either financially dependent on the EEA national or members of the same household as the EEA national. Even the adult dependant relative of the TCN of an EEA national qualifies for immigration to the UK if the said condition of dependency or membership of the same household is satisfied. Note that partners and children under 21 do not need to prove dependency or membership of the same household, as other adult relatives of the EEA national or their partners have to.

The Surinder Singh Route: a ray of hope?

The term “SSR” came into use after the decision of the ECJ in R v Immigration Appeal Tribunal and Surinder Singh, ex p Secretary of State for the Home Department (C-370/90) [1993] 1 FCR 453; [1992] Imm AR 565. Mr Singh, an Indian national, had returned to the UK after having spent two years with his wife, a British national, in Germany where they both were employed. The issue was whether Treaty rights applied following his time in Germany.

The ECJ held that Mr Singh’s immigration would be dealt under EU law rather than UK law. EU law applied by analogy on EU nationals if they returned to their country of origin after having effectively exercised their Treaty rights in any other member country. The reasoning behind this conclusion is that the EEA nationals will be deterred in moving to their country of origin after having enjoyed a family life with their TCN in other EEA member countries, if there is no prospect of enjoying the same family life in their country of origin.

In Secretary of State for the Home Department v Akrich (C-109/01) [2004] 2 WLR 871, a Moroccan husband of a British national was deported to Ireland where his wife was stationed. The couple worked in Ireland and attempted to return to the UK using SSR. The Home Office refused entry to the husband on the ground that the short stay in Ireland was designed to manufacture a right of residence in the UK and circumvent national law.

The ECJ held that if the marriage was genuine and the EEA national effectively and genuinely pursued an activity in the host member country, the motive for working in the host member state should be irrelevant for assessing the legal situation as a right to residence of the TCN spouse in the country of origin of the EEA national. In another case, Minister voor Vreemdelingenzaken en Integratie v Eind (C-291/05), a Dutch national returned to the Netherlands after living and working in the UK for 15 months. The Dutch national’s daughter had joined him from Surinam while he was in the UK. The ECJ held he was entitled to enjoy the same family life with his daughter as he did in the UK, and his daughter should be granted a right of residence in the Netherlands.

However, on 12 March 2014 the ECJ handed down a judgment in O & B (C-456/12), holding that merely being a recipient of services in another member state does not entitle the right of residence in the country of origin to the TCN of EEA nationals. In this case Dutch EEA nationals were spending weekends in other member states with their spouses but were working in the Netherlands. The ECJ held that the TCN of the EEA nationals can derive a right to residence, but only if there is compliance with articles 7 and 16 of the Directive by their EEA nationals in the host state and the creation or strengthening of family ties with the non-EEA national in that host state. Hence, without genuine and efficient exercise of Treaty rights in the other EEA member state by the EEA national, there cannot be a derivative right of residence for their TCN in their country of origin.

Even if residence is in the country of origin of the EEA national and they are simply providing services to people in other member states, or they are frequently travelling for the purpose of employment to another member country, the ECJ has held that the right of residence should be granted to the TCN in the country of origin of the EEA national. In Carpenter v Secretary of State for the Home Department (C-60/00), Mr Carpenter was based in the UK but provided advertising services to clients in other member countries as well, and travelled to meet editors of client journals. His wife, a Filipino, was taking care of the home and Mr Carpenter’s children from his previous marriage. Hence, his wife was helping him to carry on his business effectively. The ECJ held that deportation of Mr Carpenter’s wife would not permit him to provide services effectively to clients in other member states, and there would also be a breach of his right to family life under article 8 of ECHR.

The ECJ on 12 March 2014 in S & G (C-457/12) delivered a single judgment having considered two separate proceedings together. Both cases involved Dutch nationals residing in the Netherlands with TCN who travelled to Belgium for employment, one on a daily basis and the other by spending 30% of his weekly working time between preparing for dealing with Belgian work and making weekly trips to Belgium.

The ECJ, following Carpenter, held that for the effective exercise of freedom of movement of workers under article 45 of the Treaty, the TCN should be granted a right of residence in the country of origin of the EEA national who is working in the other EEA member state but residing in his own country.

The SSR has been incorporated into reg 9, but this was amended by the Government in January 2014. The amendment introduces a new concept of “centre of life”, which seeks to redress the balance by asking applicants to show that their “centre of life” has genuinely moved to a host country, rather than circumventing AppFM on an artificial basis to obtain Treaty rights in the UK. Whether the centre of life was transferred or not will be assessed on factors like the period of residence, the location of principal residence and the degree of integration in that EEA state from which the British citizen is returning to the UK. (See EU Rights Clinic blog on this.)

It is hard to say how the courts will interpret the amended regulation, because there have been decisions of the ECJ where the exercise of the Treaty rights in the host state for as little as six months (see Akrich) was held to be effective. In Carpenter’s case and S & G (C-457/12), the EEA national did not leave their country of origin at all and continued to live there, and the ECJ still held that the right of residence should be granted to their TCN in the countries of origin of the EEA nationals.

My take on the issue is that despite the amended Regulations, it seems that in view of the ECJ decisions, SSR will continue to provide hope to British nationals to enjoy Treaty rights by moving to any EU member country with their TCN and genuinely and efficiently engaging in some employment or self-employment in that host country for at least a year. Thereafter their TCN will derive a right of residence when they return to the UK. Motive is irrelevant, and therefore the Home Office cannot consider it as circumventing immigration rules even though that might really be the case.

Additional thought

Some of these points may make for interesting issues for Scotland in the event of independence and Scotland becoming a member of the EEA, with equivalent effects if England is considered a separate EEA member.