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The ‘Surinder Singh’ principle: ‘Centre of Life’ test unlawful says Upper Tribunal – Omarkhail v Home Secretary
by Counsel Tony Muman
The Surinder Singh principle, or ‘route’ as commonly referred to, takes its name from the old Court of Justice judgment in R v IAT and Surinder Singh ex.p. SSHD Case C-370/90  3 CMLR 358. The Court had to decide whether Community law grants a right of residence to a national of a non-member country who is the spouse of a Community national when the latter returns to work in his or her own country having in lived and worked in another member-State. The Court held that in the context of Mr Singh’s British wife, she had activated her Community status by working in Germany and that activation continued its effects when she returned to the United Kingdom, and that one of those effects was the right of Mr Singh – an Indian national – to accompany her with an entitlement to live and work in the United Kingdom whilst they remained married; in the same way that she could if she were a German national moving to the United Kingdom to live and work.
Regulation 9 of the Immigration (EEA) Regulations 2006/1003 gave effect to the (‘the Surinder Singh principle’) and, as enacted provided:
Family members of United Kingdom nationals
9.—(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a United Kingdom national as if the United Kingdom national were an EEA national.
(2) The conditions are that—
(a) the United Kingdom national is residing in an EEA State as a worker or self employed person or was so residing before returning to the United Kingdom; and
(b) if the family member of the United Kingdom national is his spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in that State before the United Kingdom national returned to the United Kingdom.
(3) Where these Regulations apply to the family member of a United Kingdom national the United Kingdom national shall be treated as holding a valid passport issued by an EEA State for the purpose of the application of regulation 13 to that family member.
On 1 January 2014 the Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2013 / 3032 amended Regn 9 inter alia of the 2006 Regulations. The changes were said to ensure that a British citizen engages in genuine and effective use of the rights conferred by Directive 2004/38/EC before a right to reside in the United Kingdom is conferred on a non-EEA family member. Regn 9 was amended still further on 25 November 2016. The general consensus was that the Home Office introduced these changes to try and ‘plug the hole’ which many British citizens seeking to be reunited with family members were falling back on, relying on rights under EU law rather than the pernicious and often insurmountable UK immigration rules post July 2012. Many interpreted this change as another way to try and achieve the reduction of net migration that the then Home Secretary seemed obsessed with.
The decision in this appeal was taken under Regn 9 of the Immigration (EEA) Regulations 2016 / 1052 which came into force on 1 February 2017. As amended Regn 9 provides:
Family members of British citizens
9.—(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member (“F”) of a British citizen (“BC”) as though the BC were an EEA national.
(2) The conditions are that—
(i) is residing in an EEA State as a worker, self-employed person, self sufficient person or a student, or so resided immediately before returning to the United Kingdom; or
(ii) has acquired the right of permanent residence in an EEA State;
(b) F and BC resided together in the EEA State; and
(c) F and BC’s residence in the EEA State was genuine.
(3) Factors relevant to whether residence in the EEA State is or was genuine include—
(a) whether the centre of BC’s life transferred to the EEA State;
(b) the length of F and BC’s joint residence in the EEA State;
(c) the nature and quality of the F and BC’s accommodation in the EEA State, and whether it is or was BC’s principal residence;
(d) the degree of F and BC’s integration in the EEA State;
(e) whether F’s first lawful residence in the EU with BC was in the EEA State.
(4) This regulation does not apply— (a) where the purpose of the residence in the EEA State was as a means for circumventing any immigration laws applying to non-EEA nationals to which F would otherwise be subject (such as any applicable requirement under the 1971 Act to have leave to enter or remain in the United Kingdom); or (b) to a person who is only eligible to be treated as a family member as a result of regulation 7(3) (extended family members treated as family members).
(5) Where these Regulations apply to F, BC is to be treated as holding a valid passport issued by an EEA State for the purposes of the application of these Regulations to F.
(6) In paragraph (2)(a)(ii), BC is only to be treated as having acquired the right of permanent residence in the EEA State if such residence would have led to the acquisition of that right under regulation 15, had it taken place in the United Kingdom.
(7) For the purposes of determining whether, when treating the BC as an EEA national under these Regulations in accordance with paragraph (1), BC would be a qualified person—
(a) any requirement to have comprehensive sickness insurance cover in the United Kingdom still applies, save that it does not require the cover to extend to BC;
(b) in assessing whether BC can continue to be treated as a worker under regulation 6(2)(b) or (c), BC is not required to satisfy condition A;
(c) in assessing whether BC can be treated as a jobseeker as defined in regulation 6(1), BC is not required to satisfy conditions A and, where it would otherwise be relevant, condition C.
The Appellants, both Afghan nationals, are elderly dependents of their British son (‘the Sponsor’). The sponsor decided to relocate to Poland where he set up a business. He moved to Poland first and was to be later joined by his wife and children. In the meantime, he was joined in Poland by the Appellants who were granted family permits as his ‘family members’ and then residence cards valid until 2021. The Sponsor’s wife and children subsequently had a change of heart and decided not to relocate to Poland, ultimately resulting in the Sponsor returning to the UK accompanied by the Appellants. They then applied (even though they perhaps did not need to) to be issued with a residence card, the refusal of which is the subject matter of this appeal.
The Home Office refused the application on the basis that the Sponsor had not provided adequate evidence in support of the application. Specifically, he had failed to prove that he was economically active in Poland as a self-employed person and that his residence in Poland was genuine. The focus of the appeal fell therefore on the Sponsor.
The appeal was heard on 26th April 2018 at the First-tier Tribunal. Counsel Tony Muman represented the Appellants on the case bundle prepared by Habib Hussain of Guildhall Solicitors. Before the tribunal the Appellants argued inter alia that the ‘centre of life’ test and the requirement to demonstrate a degree of integration is unlawful and contrary to EU law and that the correct enquiry in a case like this focuses on whether the Appellants and the Sponsor have been, or were formerly, residing in Poland in accordance with Directive 2004/38/EC; further that there is no minimum time period to have been spent in the host Member State, either for the Sponsor or the Appellants alone or jointly and to insist on such criteria would undermine the very essence of freedom of movement; also, that Regn 9 cannot be used to deter or penalise the Union citizen Sponsor for having exercised Treaty rights with the Appellants. In a determination promulgated 4th May 2018 the tribunal dismissed the appeal applying the Regn 9(3) criteria. The Appellants appealed to the Upper Tribunal maintaining the view that the ‘centre of life’ test and the requirement to demonstrate a degree or integration is unlawful and contrary to EU law.
On 16th July 2019 Upper Tribunal Judges Rintoul and Coker sat to hear the appeal. Tony Muman represented the Appellants with instructions and bundle prepared by Habib Hussain of Guildhall Solicitors. Having heard argument the Upper Tribunal delivered an ex tempore judgment holding that the FTT determination contained material errors in law and was unsustainable. The panel observed that that much of what is contained in Regn 9 on which the Secretary of State placed reliance is not found in the directive or in the treaty or in the caselaw, and appeared to be contrary to the Advocate General’s opinion in O & B v The Netherlands C-456/12. The UT held that there is no requirement for someone to have sole residence in the host member state; nor is there a requirement that that residence has to be permanent and that said person has to demonstrate integration.
The Upper Tribunal set aside the determination of the First-tier tribunal and adjourned to consider the test question whether the mere production of a residence card issued by another member state is a sufficient basis to be determinative of the application.
The same principle was repeated by Upper Tribunal Judge Rintoul in the subsequent case ZA (Reg 9. EEA Regs; abuse of rights) Afghanistan  UKUT 281 (IAC).
Tony Muman appeared for the Appellants in both the First-tier and the Upper Tribunal instructed by Habib Hussain at Guildhall Solicitors.
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