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End of the ‘centre of life test’ in Surinder Singh cases?

October 2019 - Immigration. Legal Developments by Richmond Chambers.

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In the recent case of ZA (Reg 9. EEA Regs; abuse of rights) Afghanistan [2019] UKUT 281 (IAC), the Upper Tribunal found that there is no basis in EU law for the centre of life test, as set out in Regulation 9(3)(a) of the Immigration (European Economic Area) Regulations 2016 (the “Regulations”). It further found that it is not to be applied when Judges assess Surinder Singh cases that appear before them.

Surinder Singh and the Centre of life test 

The Court of Justice of the European Union case Surinder Singh held that when a person moved from one EU member state to another to exercise Treaty rights, it must include a right of return, otherwise the person would be deterred from exercising their Treaty rights. Therefore, when returning to the UK, EU free movement law should apply to their family members, rather than domestic immigration law. This was later revisited and confirmed by the case of O and B v Netherlands

Regulation 9(2) of the Regulations sets out the conditions that a family member of a British citizen must meet in order to obtain a family permit under the Surinder Singh route. Regulation 9(2)(c) requires that the family member and British citizen’s residence in the EEA state was ‘genuine’, a principle confirmed in the case of O and B. Regulation 9(3)(a) states that“whether the centre of BC’s life transferred to the EEA state” is indicative of ‘genuine’ residence. 

The centre of life test was met with some confusion, as it appeared nowhere in the case law of the CJEU, including Surinder Singh and O and BThe Home Office Guidance attempts to clarify what is meant by the ‘centre of life’ test, by listing further factors which go to show whether the centre of the British citizen’s life was transferred to the EEA state in which they resided. 

The Guidance further states that these conditions have been drafted to reflect the Court of Justice of the European Union cases of Surinder Singh (C-370/90),  Eind (C-291/05), O and B (C-456/12), S and G (C-457/12), and Banger (C-89/17). However, none of these cases make any reference to the ‘centre of life’ test, nor does the Treaty itself. As set out in the well-known cases of Marleasing and Van Gend en Loos, it is the Treaty and the purpose of EU law which has fundamental status over the UK’s implementing law i.e. the Regulations. Yet many applicants have found their applications for a family permit or residence card being refused on the basis that the British citizen, with whom they resided, failed to transfer the ‘centre’ of their lives to the EEA state. 

This blog post explores the Surinder Singh Route and the centre of life test in more detail. 

The case of ZA

The First-tier Tribunal Judge dismissed ZA’s appeal on the basis that the family’s residence in Ireland was not genuine, finding that they had not transferred the ‘centre’ of their lives there, as is required by Regulation 9(3)(a).

In the Upper Tribunal, the appellant argued that the First-tier Tribunal Judge had failed to properly apply AA (Nigeria) and he failed to take into account that the family’s motive in relocating to Ireland was irrelevant, per Akrich.

Upper Tribunal Judge Rintoul, in his determination, provides an overview of domestic and CJEU case law on the meaning of ‘genuine’ in the context of EU law. He clarified that ‘genuine’ was meant “in the sense that it was real, substantive, or effective”, and not the opposite of false.

Judge Rintoul further held that “whether there has been a genuine exercise of Treaty rights requires a qualitative assessment which will be fact-specific”.  He set out the factors that have been established in case law, yet he confirms that these are non-exhaustive and should not be read as a checklist. The factors include:

“Any work or self-employment must have been “genuine and effective” and not marginal or ancillary;

The assessment of whether a stay in the host state was genuine does not involve an assessment of the intentions of the parties over and above a consideration of whether what they intended to do was in fact to exercise Treaty rights;

There is no requirement for the EU national or his family to have integrated into the host member state, nor for the sole place of residence to be in the host state; there is no requirement to have severed ties with the home member state; albeit that these factors may, to a limited degree, be relevant to the qualitative assessment of whether the exercise of Treaty rights was genuine.”

Centre of life test

Upper Tribunal Judge Rintoul assessed the centre of life test in the judgment of ZA. He states that “the phrase “centre of life” does not occur in the case law. It is not a term of art, nor is it defined in European Law.” 

He refers to A-G Sharpston’s opinion in O and B, in which she refers to “habitual or usual centre of interests”. Judge Rintoul, however, notes that it is imperative that this is read in the context of residency being a condition for exercising ancillary rights of living in a European country, such as the right to vote and stand in elections. That is where it is necessary to identify one place of residence from which other rights flow. He confirms that “it is not the case that in other contexts it is necessary to have a sole residence.”

Judge Rintoul goes on to consider that the origin of the centre of life test could be the case of Rosa v SSHD [2016] EWCA Civ 14 which, at paragraph 20, refers to non-binding guidance issued by the European Commission on the Directive (COM (2009) 313 Final, 2 June 2009). He confirms that “it must, however, be borne in mind that the guidance is non-binding; it is not an EU Treaty nor is it a distillation of established case law or doctrine”. 

Judge Rintoul therefore confirmed, at paragraph 75 that “the requirement to have transferred the centre of one’s life to the host member state is not a requirement of EU law, nor is it endorsed by the CJEU.”  

He further confirms that there is no requirement for the EU national or their family to have integrated into the host member state, as set out above. This corroborates the position that there is no need to have relocated the centre of their lives to the host state. 

What does this mean for applicants?

This judgment is good news insofar as it clarifies the position as regards the centre of life test and the meaning of ‘genuine’ residence. It confirms how judges should treat appeals against refusals of family permit or residence card applications on the basis of failure to transfer the centre of their lives. 

The Secretary of State, however, has yet to amend the Regulations to bring them in line with the judgment in  ZA; the Regulations, of course, being the UK’s implementation of EU law and the Directives.  However, as set out above, it is the Treaty and the purpose of EU law which has fundamental status over the UK’s implementing law.  

Therefore, we may not see a reduction in refusals on this basis quite yet, however any previous refusals of applications and dismissed appeals on the basis of failure to transfer the centre of life test could be open to challenge.

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