CJEU to shed light on the extent of Surinder Singh principle

CJEU has been asked to rule on four consolidated cases each raising a question in connection with the rights of residence of non-European national family members of EU nationals in the country of nationality of the EU national sponsor. These types of cases are known as “Surinder Singh” cases in legal jargon. This post gives a snippet of the opinion of Advocate General Sharpston which the Court will use as a persuasive reference point before giving its judgment in the next few months. The judgment will be binding on the Member States and any policy or legal provision incompatible with the judgment will have to be reviewed.

The cases C-457/12 and C-459/12 were referred to the CJEU by the Dutch government. They raise the following questions:

1. Can Surinder Singh route be relied on where EU national sponsor has not worked in another member state, but has been a recipient of services in another member state?
2. Does residence in another member state have to be of a certain minimum duration? Does it have to be continuous, or can it be made up of short regular visits?
3. Can Surinder Singh route be invoked where the EU national sponsor has never resided outside his country of nationality, but has travelled daily across the border to work in another member state?
4. What happens if the EU national sponsor resides and works in his country of nationality, but has to travel to other member states on assignments from his employer?

As a preliminary remark, AG Sharpston pointed out that Citizenship Directive which consolidates free movement rights and gives effect to Article 21 TFEU does not cover Surinder Singh type scenarios, as the Directive explicitly refers to free movement of workers outside their country of nationality. However, according to established case law, the Directive cannot be given a restrictive or exhaustive interpretation (Eind, C-291/05; Diatta, C-267/83; Baumbast, C-413/99).  Free movement rights of EU workers are derived from the Treaty and protected under the Charter of Fundamental Rights.

Although third country nationals are not immediate beneficiaries under the Treaty, they share the enjoyment of the rights vested on their EU national family members by the Treaty.  The opinion is thus focused on analysis of the criteria which would show whether denial of the right of residence to the third country national family members would restrict the right of their sponsors to move and reside freely within the EU.

It follows that, although each case is to be considered on its own facts by national courts, in principle there is no requirement for a minimum duration of residence in the host Member State. Nor is the residence in another Member State a prerequisite for effective exercise of free movement rights. What is important, however, is a causal link between the exercise of Treaty rights by the EU national and his third country family member’s residence in his country of origin.

AG Sharpson proposes a three-pronged test to be applied in the cases where the rights of third country nationals are derived from the Treaty rights of the EU citizens (as opposed to the rights provided for under Directive 2004/38:

1. Is there family life, or sufficient family connection between the third country national and the EU citizen? (an estranged spouse will not meet the family connection test in this context, conversely to situations covered by Directive 2004/38)
2. Is there exercise of free movement rights by the EU citizen? (unlike situations covered by Directive 2004/38, exercise of free movement rights in the wider scope of TFEU is not limited to employment or self-employment; free movement rights extend to freedom to receive services, including travelling across the border for holidays, day trips, etc)
3. Would denial of residence rights to the third country national family member, be a barrier to the exercise of free movement rights by the EU citizen sponsor?

The implication of this approach is that it would affirm an immigration route parallel and supplementary to the route under the Directive (and the EEA Regulations which implement the Directive and incorporate in a rather restrictive shape provisions giving effect to case law of the Court of Justice of the European Union, including Surinder Singh).

As any good case law, the principle put forward by Advocate General does not alter the law but advances interpretation of the provisions already enshrined in the Treaty and the Charter of Fundamental Rights. The impact of this interpretation, if endorsed by the Court, will extend beyond Surinder Singh cases to the wider EU scope. In other words, if the Directive is not to be given restrictive interpretation, EU citizens living in a member state which is not their country of nationality do not necessarily have to rely on worker’s status to be exercising free movement rights and enjoy family life with third country national family members in the country of their choice.

However, I foresee some procedural difficulty with this otherwise robust and sensible approach. The EEA Regulations, implementing Directive 2004/38) create procedural framework for issuance of residence documents and challenging adverse decisions. The Regulations vest the jurisdiction to decide disputes arising from the Regulations on the First-tier tribunal (Immigration and Asylum Chamber). Remembering the long route the Zambrano judgment had before it was incorporated into domestic legal system, it is not unlikely that the Home Office may not give heed to the rights enshrined under the Treaty and the Tribunal may not have the jurisdiction to decide disputes outside the scope of the Regulations.

In any event, Surinder Singh migrants in the UK will undoubtedly benefit from the proposed approach which, by the by, will utterly defeat the “transfer of centre of life” test recently imposed by the Regulations.