- BY Colin Yeo
Abuse of EU law and Surinder Singh
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Some European Union member states are anxious that their own citizens should not circumvent their own sometimes very tough immigration rules by relying instead on EU free movement law. The UK is one such, and has been right from the start. At paragraph 24 of Surinder Singh itself, the court said as follows:
As regards the risk of fraud referred to by the United Kingdom, it is sufficient to note that, as the Court has consistently held, … the facilities created by the Treaty cannot have the effect of allowing the persons who benefit from them to evade the application of national legislation and of prohibiting Member States from taking the measures necessary to prevent such abuse.
EU law states that it does not extend to cover abuse. But what constitutes abuse in EU law?
The leading case on abuse of treaty rights is an otherwise obscure agricultural subsidy case called Emsland‑Stärke (Case C‑110/99) in which the Court of Justice held that:
A finding of an abuse requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the Community rules, the purpose of those rules has not been achieved … It requires, second, a subjective element consisting in the intention to obtain an advantage from the Community rules by creating artificially the conditions laid down for obtaining it.
This has subsequently been approved as a general statement of of what might comprise abuse of treaty rights generally and is repeated verbatim in the important case of O v Netherlands Case C‑456/12 (discussed in this previous blog post: Surinder Singh immigration route).
Where abuse or fraud is alleged, it is for he who alleges to prove the allegation: the Home Office would need to prove that the application is abusive.
It is clear that there are two requirements to establish abuse and that both must be proven:
- Despite appearing to satisfy EU rules, in fact the rules are not really met
AND
- There was a deliberate intention artificially to make it appear as if the rules were satisfied.
We will briefly look at these in turn in the context of Surinder Singh. There is clearly scope for the UK Home Office to refuse an application in certain circumstances on the grounds of it being abusive. There is no known Home Office guidance on abuse in the context of Surinder Singh cases (a recent FOI request drew a blank on this), so what follows is informed speculation that is likely to be of more relevance on appeal to a judge rather than to a discussion with an immigration officer at border control on entry to the UK.
European Court of Justice by Cédric Puisney
Rules not really met
The Home Office might try to assert in a given case that while free movement rules were met in form, they were not satisfied in substance. For example, it might be said that while the British citizen might have held a job, it was too short term to be a genuine exercise of treaty rights.
This is indeed an argument that has been used by immigration officials to refuse some Surinder Singh applications on arrival at border control. Such refusals are based on the unlawful “centre of life” test, though, and O v Netherlands probably provides a complete answer as well as posing the question: anything longer than three months is genuine and achieves the purpose of the free movement rules.
“Genuine and effective”
It was established long ago in a slightly different context that for work to qualify as work in EU law, it must be “effective and genuine”. On the face of it this seems to be a similar idea to that of the purpose of the rules not being achieved, although at the same time it is notable that the court did not in O v Netherlands use the “genuine and effective” test but adopted the very different abuse test.
The use of the words “genuine and effective” in EU free movement law originate in an old case called D.M. Levin v Staatssecretaris van Justitie (Case 53/81), where the Court of Justice concluded:
1 . The concepts of “worker” and “activity as an employed person” define the field of application of one of the fundamental freedoms guaranteed by the Treaty and, as such, may not be interpreted restrictively .
2. The provisions of Community law relating to freedom of movement for workers also cover a national of a Member State who pursues, within the territory of another Member State, an activity as an employed person which yields an income lower than that which, in the latter state, is considered as the minimum required for subsistence, whether that person supplements the income from his activity as an employed person with other income so as to arrive at that minimum or is satisfied with means of support lower than the said minimum, provided that he pursues an activity as an employed person which is effective and genuine.
3. The motives which may have prompted a worker of a Member State to seek employment in another Member State are of no account as regards his right to enter and reside in the territory of the latter state provided that he there pursues or wishes to pursue an effective and genuine activity.
The Levin case is an important one and establishes that part time work also counts as “work” for the purposes of free movement law. The court elaborated a little on the meaning of effective and genuine, though:
It should however be stated that whilst part-time employment is not excluded from the field of application of the rules on freedom of movement for workers, those rules cover only the pursuit of effective and genuine activities, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary. It follows both from the statement of the principle of freedom of movement for workers and from the place occupied by the rules relating to that principle in the system of the treaty as a whole that those rules guarantee only the free movement of persons who pursue or are desirous of pursuing an economic activity.
One argument open to the Home Office would be that a British citizen who has moved to another Member State has only engaged in an activity which is not “effective and genuine” and which instead is “purely marginal and ancillary”. For example, a very short period of work or claimed self employment that generated little or no income would potentially be vulnerable to such an accusation.
It can be argued that the three months test in O v Netherlands is a complete answer to this question of whether the exercise of the treaty right (work, self employment, etc) is genuine and effective: if it goes on for longer than three months and is more than marginal and ancilliary then it is. This argument is a powerful one before a judge. It may be of less concern to an officious immigration officer who is concerned that the British citizen and family member are dodging UK immigration law. Indeed, aggressive quoting of law and policy at immigration officials is more likely to antagonise and provoke them than to achieve the desired outcome.
It should also be borne in mind that the O v Netherlands case does permit refusals based on abuse. The concept of abuse is not likely to be interpreted by the courts as being so narrow that no cases might ever conceivably be refused under it.
Deliberate intention
It may be useful to recall the third of the conclusions above in the Levin case: the motives of the British citizen in seeking work in another Member State are “of no account” provided that he there “pursues or wishes to pursue an effective and genuine activity”.
It should also be recalled that there are two elements that must be established by the Home Office to prove abuse and that both must be established.
If it can be shown that the exercise of treaty rights did achieve the purpose of the free movement rules and was effective and genuine then the question of intention is irrelevant. Further, the intention must be artificially to make it appear as if the rules were satisfied. If the activity was more than marginal and ancillary and was pursued for three months then the rules were satisfied and there is no scope for a refusal on the basis of abuse.
It is for the Home Office to prove a deliberate intention of abuse. The standard of proof is what lawyers and judges call the civil standard of proof, which is to show that it is more likely than not. At border control, a front line immigration official in a bad mood may well allege fraud on the basis of circumstantial evidence and supposition and decide that it is proven to the required standard, particularly where there is no in-country right of appeal and the third country national can easily and quietly be refused entry and removed.
In the context of a tribunal or court case, it will be hard for the Home Office to prove deliberate intention artificially to create an appearance of exercise of free movement rights in the absence of an admission from the British citizen or their family member. Context such as previous failed UK law immigration applications might be thought to point to a deliberate intention, though.
Home Office current approach
The key to such allegations of abuse and consequent denial of entry is likely to be a suspicion on the part of a given immigration official that the British citizen and family member are seeking to circumvent UK immigration rules. If we undertake the unpleasant task of trying to place ourselves in the shoes of a UK immigration official, possible risk indicators might include:
- Not applying in advance for a family permit
- Poor quality documentation or general lack of evidence
- Stating in answers to questions that the purpose of going abroad was to return under EU law not UK law
- Short periods of residence and/or exercise of treaty rights abroad
- Previous failed immigration applications under UK law
- Low income or savings suggesting that UK law family life rules on the minimum income requirement might be unachievable, particularly if the low income or savings relate to the previous period of residence in the UK
These potential indicators are based on a combination of supposition and known cases of refusal. There’s not much that can be done if they apply in a given case, but longer periods of residence are less likely to attract refusal than short ones of just three months, so it may be wise if at potential risk of refusal to spend a longer period exercising those treaty rights.
This blog post is based on an extract from my ebook on Surinder Singh. The ebook includes examples and further material.
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34 Responses
Is it correct that if a TCN applies for a residence card, that TCN is disabled from pleading Article 8 ECHR in tandem with EU law in the same application? The Home Office has been “advising” applicants to use form FLR(FP) for article 8 claims even if they make an application for a residence card! Doesn’t sound right …
That is the Home Office View. HOWEVER: The court do not think link this. Our Zambrano application we lost on Immigration Regs, EEA Regs but won on Article 8. Make sure you submit your Article 8 claim with your application.
NOTE: ECJ caselaw outlines that human rights must be acknowledged. Even The Home Office is aware of this: https://www.whatdotheyknow.com/request/159913/response/421565/attach/html/3/FOI%2028377%20response.pdf.html
I ensured that I read that response out in court (submitted in bundle – as a FOI response is official communication) – Our Presenting Officer Ms Banks wasn’t too pleased by the looks of it… Nor to the fact I raised Amnesty Intl report on wife’s country outlining lack of Human Rights.
I’m sure you don’t need reminding: Just because the Home Office say something. It doesn’t make it legal.
Wayne Pearsall: Cool that you won on Article 8. The thing is that most of the time the HO are not saying anything these days. They prefer not to respond anymore and accuse claimants of delay; this is quite weird. They’ve got a lot of work you see. Most of it is of their own making by messing poor (and some rich) folks around.
Yep. Think of how much faster the process would be if they actually evaluated all the evidence and didn’t just go “f… it, let the courts decide, it’s not my money paying the legal fee’s, and i’ll get my bonus either way”
they must be under pressure from mrs may
Why does UK only accept the status of worker in the host country ? The Directive 2004/38 EC also gives rights for student, self employed people and persons with sufficient means. Case C-456/12 specifically underline this point. A person with sufficient means, that have exercised his/ her right to free movement, had a actual and genuine residence in the host country for over three months while strengthening a family life, should have analogically rights when returning to his home country.
We just chucked our self employment away to apply on this issue as the O vs Netherlands states we can so let’s see what happens next, we will appeal and force them to issue eea2 on selfsuficent
But Wayne, as Colin raised above, I think that it’s silly not to try and comply with the regs as far as possible. You’ve condemed yourself to a refusal, court, and more heartache for the next however long.
You should send the S.E. proof in. Otherwise they WILL refuse. Caseworkers cannot alter the fact that they have to follow the UK’s interpretation of the law.
MKP- re Article 8. Of course you can make Article 8 claims while applying for a residence card. The Home Office won’t pay any attention to them, but you can raise them again at appeal. I have done so at Zambrano appeals (Home Office says same thing about form FP). Fortunately I have won all my Zambrano appeals on the regulations. The IJs did not make any alternative findings on Article 8, so I don’t know whether they would take the point. The HO usually says a refusal of a residence card is not a removal decision so Article 8 is not engaged-not a very good argument…
Thats one of the lines they used in my wife’s court case. “Whilst the HO have refused a RC, we do not seek to remove in European Cases where there are clear family connections”… My response: Picked up IS.96 and (If I remember correctly IS.343? – failure to report – detention threat). “But if the HO don’t intend to remove, why do they expect my wife to report? I am sure you’re aware, that Dentention is only legal when removal from the UK is a legitimate prospect, and also that reporting is an alternative to detention – and therefore one in the same?” – I think that that blew the HO argument of not removing out of the water for the HOPO.
Hiya Philip: I hear you. However, I’ve also heard through the grapevine (a comment by Adam Pipe Esq) on LinkedIn that a judgment is expected on this issue – and that the Home Office is “right”.
Phillip T,…I agree, if raised as part of initial application and not taken into account, can only strengthen your appeal grounds as that would be an arguable ‘material error of law’. But isnt it rather contrary to the EU law in the first place,….. Art 52 of the charter of fundamental rights is about ‘proportionality’, depends how fronted, but most aspects of art 8 can be fronted/ urged under the ‘proportionality’ obligation to the decision maker.
secondly, hope im wrong but the views of the Court in Jia v Migrationsverket c-1/105 further seem to suggest an obligation that EU decisions have to be in conformity with the rest ofInternational laws to be lawful.The ECHR is just one of them surely.
On a look out for some good ‘Tcn retained rights of residence’ case law,……other than Amos {UT} and lahyan v Min of Justice {ire} any recommendations will be much appreciated.
Hiya again Philip: no doubt the Home Office is after a nice bit of extra application fees. They want to be shown the money £££
The problem with “Showing the Money” is that many applicants (esp. Zambrano) don’t have a spare grand to take away from funding their kids upbringing. Add to the fact that you’re effectively gambling with that grand, because even though Article 8 must be considered (and as linked above) cannot be breached, it often does. My wife has a FP issued by the HO in Dublin. Come to apply for RC and got refused. Requested reconsideration (in line with HO policy / EU Law – https://www.whatdotheyknow.com/request/requests_for_reconsideration_eea ) and the HO initially refused to reconsider (stating “You should make any further arguments in appeal as you have been granted that right).
Raised a complaint with MP (Nadhim Zahawi) who did sod all. Went to MEP who wrote to Immigration Minister James Brokenshire. – along with Solvit Ireland. HO agreed to reconsidered. But as per response email friday Re-refused.
How’s that for the HO accepting Human Rights? – “OK guys, we accept that you can live in the UK, heres your FP.” then when applying for a RC “Er… actually, no. you need to leave the UK, we don’t accept you are a beneficiary of EU Law any more…”
There is now fee exemption for ltr applications that raise human rights issues, but no fee exemption for EEA applications (as EEA applications are much cheaper). That said, persuading the Home Office that the fee exemption applies is something of a nightmare in itself…
Ahh, yes, I know this. But you have to pretty much not have 50p in your pocket to get the fee exemption?
“destitution” is the test- and they only accept very specific sorts of evidence of destitution- but there is a challenge to the test going to the Court of Appeal at the moment… if the challenge succeeds the test will be “unable to afford the fee”…
sounds preferable to destitution; not to belittle the plight of the needy, the other side of the coin is that a lot of people with “no right to remain” just keep working illegally and are likely to have more money than me, philip or wayne; hmmm no tax and wholesale cheating of the system. not all immigrants in trouble are angels, a lot of them are highly dodgy people who have a long wish list of rights and work illegally and claim poverty. god bless them all of course.
The guidance on Destitution:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/326774/Assessing_Destitution_Instruction.pdf
It isn’t a pretty picture. But:
Basically, if you own a car, jewellery or other assets, you’d be expected to sell them – and for most, a car is a basic need.
Oh, there is just loads on this theme on the Internet. “Famous” law firms are accused of taking money from poor clients who sold their cars/jewellery to appeal and appeal so that they could get PSW visas (but did not have “degrees”). But WHY does everyone want to stay in the UK? Surely, if one’s life in not in danger elsewhere, then it would be better to fly down south?
If you live in London you don’t really need a car, nor, if you are truly destitute, can you afford to keep one. I find that for most of my clients applying for fee exemption their sole asset is their TV- which the HO doesn’t insist they sell. If you’re not working (despite the stereotypes, there are immigrants who choose to obey the law and live on state handouts rather than break the law by working day and night, and of course I always advise my clients to obey the law) you don’t need to drive to work. School can be an issue.
MKP I know a number off “Undocumented Migrants” in the UK. They have lived here for over ten years. They have worked, (of course), but still struggle every day to survive.
I know for a fact that all of the people I know would pay tax on all of their income (not expect any handouts) for the piece of paper the HO gives them.
I know a number of people who went to Loan Sharks to get enough money to pay the HO / Solicitor fees to apply – yet get refused all the same.
I know somebody who has children, who applied went to court, and got told that the first seven years of a childs life aren’t as important as say seven to fourteen… Where this is a clear err of law, they couldnt afford to go any further with their court case… so now have no place to turn.
Please don’t spread the gospel of the DM, as whilst a FEW *MAY* be corrupt, the Majority of migrants (undocumented or not) work to support their families.
Sadly, whilst the DM will spread about how “the tax payer pays for terrorist family to live in million pound house” it doesn’t come so far to say about how “innocent working migrant man left mauled by loansharks because of inability to pay off debt acrued by trying to apply to the Home Office”
I don’t mean to dis anyone man, it’s just that once you do win for people without hope and they do have their rights in their hands, a fair number will no longer associate with you (they’ll avoid you instead). So what’s it worth for me? Am I crazy to stay awake at nights for all this “fun”. To be honest, I’m a bit sick of being stuck in the midst of all this total nonsense … Best off working in Tesco really!
Phillip, the problem is, many migrants come to the UK for reason of fear ETC, and pay people to get them here. They then have to work to clear the debts (often taking years). Once in the system, and debt cleared, they continue to work, because they are afraid of being sent home.
I agree that Londoners don’t need cars ETC. and TBH I don’t know any undocumented migrants with cars. However, My wife was an Undocumented Migrant. and I had a car. The HO would of expected me to sell my car to pay the application fee, even though my car meant I could work and earn my living.
How many British Citizens have children with their TPN spouse. How many of those people own a car?… I’d say a fair whack of them. – and all of them would be expected to sell the car to be considered destitute. – which would result in many being unable to work, and unable to claim benefits as selling their car led to their loss of work. – mind, would this then be sufficiently destitute?….
RE: first years of a child’s life. There is case law in support of this, going at least as high as the Upper Tribunal. The idea is that very young children are less likely than school age children to build up local connections and so moving country is less disturbing for them. “7 years from age 4” is said to be more important than 7 years from birth. (On the other hand, 10 years from birth entitles a child to citizenship, so there are swings and roundabouts). So your friend wasn’t just unlucky: at the moment that is the way the law works. May change of course, especially with the new ‘statutory considerations’ in the 2014 Act.
I expect no less from the Home Office than to ignore case C-109/01 (see http://bit.ly/1nLDlkG) and refuse applications by asking questions and revealing the purposes many couples have for using Surinder Singh.
Of course. On the other hand, Appendix FM does say that you can raise a human rights application on appeal (without form or fee)…not sure what would happen if you won though: as you have raised a human rights application, can the judge order grant of ltr even though this is residence card decision? Alternatively, if the judge says “you don’t meet the requirements of the regulations but the Home Office have to grant you a residence card anyway” how are you going to tell if you are still entitled to the card later on (normally it would lapse as soon as you ceased to meet said requirements). Does having a ‘human rights’ residence card entitle you to permanent residence 5 years later? Or, if the appeal was a permanent residence appeal, does a judge’s finding you are entitled to status on human rights grounds mean you get permanent residence straight away? Many problems, not suprising if unfavourable judgement coming.
Phillip, from our appeal (zambrano) in December 2013, the HO propose to issue a BRP to my wife. She would then need to reapply in 2.5 yrs – with fee ETC, and be on the UK’s immigration regs.
The choice of what leave to grant is down the the Home Office. The Court can only direct them.
Wayne, that is very good, a much more satisfactory solution than a Derivative Residence Card…
Definitely, DRC doesn’t lead to PR (and Chen court cases have confirmed this – would it be different on a Zambrano side?) However, a BRP is less favourable than a RC issued under Singh. The fact is, if the applicant applies, and can get past the Home Office “Invalid Application” screening stage, then the £55 refusal onto £140 court is another way to go. Even if you know you are going to be refused the DRC, Zambrano should allow BOTH parents to remain in the host state as a child has a right to *direct* *meaningful* contact with BOTH parents.
In Case C-109/01, Hacene Akrich (a Moroccan citizen who had been deported twice from the UK) and his British wife actually openly admitted to the Home Office that their purpose for moving to Ireland was solely to get around domestic UK immigration laws via the Surinder Singh route, yet the ECJ still found the couple’s motives irrelevant for assessing their legal situation upon their return to the UK. The ECJ even said that such conduct as genuinely and effectively exercising Treaty rights, no matter the intention, didn’t constitute abuse, even if the family member had an adverse immigration history:
“55 As regards the question of abuse mentioned at paragraph 24 of the Singh judgment, cited above, it should be mentioned that the motives which may have prompted a worker of a Member State to seek employment in another Member State are of no account as regards his right to enter and reside in the territory of the latter State provided that he there pursues or wishes to pursue an effective and genuine activity (Case 53/81 Levin [1982] ECR 1035, paragraph 23). 56 Nor are such motives relevant in assessing the legal situation of the couple at the time of their return to the Member State of which the worker is a national. Such conduct cannot constitute an abuse within the meaning of paragraph 24 of the Singh judgment even if the spouse did not, at the time when the couple installed itself in another Member State, have a right to remain in the Member State of which the worker is a national.”
I really don’t think the UK have much scope for levelling an accusation of “abuse” at couples if the EU sponsor genuinely and effectively worked in his host State.
Case C-456/12 O & B does not define what “abuse” is in paragraph 58 of the ruling. My take on it is that it probably applies in cases where the abuse is blatant, such as a sham marriage, forged documents, or setting up a residence in the host State and then returning home having never truly resided in the host State. Akrich case law does however define what abuse isn’t, which is that such conduct as installing yourself in another EU State to exercise Treaty rights (properly) and then returning home does not constitute abuse, whatever your motive is.
That pretty much sums up my belief too.
As long as you are honest. As long as you stengthen your family life. As long as you work (or reside now ;)), then your good to go.
I think so too, Wayne. I forgot to mention another important paragraph in Akrich case law which states the case even more strongly for genuinely married couples:
“61 Where the marriage between a national of a Member State and a national of a non-Member State is genuine, the fact that the spouses installed themselves in another Member State in order, on their return to the Member State of which the former is a national, to obtain the benefit of rights conferred by Community law is not relevant to an assessment of their legal situation by the competent authorities of the latter State.”
The Home Office is just not going to get very far with accusations of “abuse” if that is their future plan, at least not in appeal tribunals anyway.