Below are references to some case law and other official documentation which could prove useful to those
interested in exercising free movement rights.
There are sometimes inconsistencies between judgments where the more recent judgment could trump an earlier one, or provide clarification. However reliance on case law should not be blind as it is not necessarily all that is needed to establish rights. t may not be appropriate for your situation and showing off how much more you !now than the casewor!er by "#ing on case law references is li!ely to piss them off. $ride is a strange thing% &urthermore, Home "ffice is notoriously slow in updating its regulations to reflect recent court decisions it is not happy with. t is also not un!nown for Home "ffice to adopt the most restrictive interpretation where possible, leaving it to another case years down the line, to shed clarity or hold it accountable. 'oted below is the !ey message as understand it. (in!s are provided so readers can form their own opinions and as always, when in any doubt, you are strongly advised to see! specialist immigration advice. Date of judgment Reference Key message Relevant links ) *ul +,,- ./0)12,1 3urinder 3ingh 4uled that having exercised free movement rights to wor! in another 5ember 3tate, the 67 citi8en on his2her return to the 5ember 3tate of which s2he is a national has the right to his2her spouse to enjoy at least the same rights as would be granted were the family to move to another 5ember 3tate. 6.g. 9 British man moves to &rance for wor! and lives there with his wife. He wants to move bac! to the 7:. 7: cannot impose more restrictions on this couple than say ;ermany or reland would. <however see 6ind which removes the condition to engage in employment on return to home 5ember 3tate=. http>22www.bailii.org2eu2cases2676.* 2+,,-2.0)1,1.html http>22www.freemovement.org.u!2suri nder/singh/immigration/route2 http>22www.freemovement.org.u!2do wnloads2surinder/singh/eu/free/ movement/for/british/citi8ens2 01 5ay +,,+ ./?@2@, .ommission of 6uropean .ommunities v 'etherlands. 5ember states cannot reAuire that 67 nationals state purpose and duration of stay and financial means available for it. where a Member State requires nationals of another Member State to answer questions concerning the purpose and duration of their stay and the financial means at their disposal for it before being permitted to enter its territory, it is in breach of its obligations under Directive 68!6" on the abolition of restrictions on movement and residence within the #ommunity for wor$ers of Member States and their families and Directive %!&'8 on the abolition of restrictions on movement and residence within the #ommunity for nationals of Member States with regard to establishment and the provision of services() http>22www.bailii.org2eu2cases2676.* 2+,,+2.?@@,.html -0 3ep -110 ./+1,21+ 9!rich 5otive for exercise of free movement to see! employment in another 5ember 3tate irrelevant, as long as wor! is genuine and effective. i.e. embar!ing on free movement with the express purpose of using the B3urinder 3inghC route is not considered to be an attempt to circumvent domestic law nor is http>22www.bailii.org2cgi/ bin2mar!up.cgiD docE2eu2cases2676.*2-1102.+1,1+. + it an abuse F as long as the exercise of free movement is genuine. .ourt noted 5rs 9!rich indicated she had heard about the 3urinder 3ingh route whereby she and her husband could stay for six months in another member state and then return to the 7:, as per info given to her by solicitors and others in the same situation. The .ourt found that this did not constitute an abuse of rights. *++, -s regards the question of abuse mentioned at paragraph .' of the Singh /udgment, cited above, it should be mentioned that the motives which may have prompted a wor$er of a Member State to see$ 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 0#ase +!8& 1evin *&28., 3#4 &"!+, paragraph .!5( *+6, 6or 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 wor$er is a national( Such conduct cannot constitute an abuse within the meaning of paragraph .' of the Singh /udgment even if the spouse did not, at the time when the couple installed itself in another Member State, have a right to remain in the Member State of which the wor$er is a national( htmlGAueryEa!richGmethodEboolea n -H *uly -11@ ./+-)21@ 5etoc! There can be no prior lawful residence condition in another 5ember 3tate imposed on the non/669 family members of 67 nationals exercising free movement rights. .reation of the family relationship <e.g. marriage= after the non/669 family member entered the 67 does not preclude them from being covered by 67 regs. ndeed, even entering the 67 illegally, or living there illegally at the time of marriage cannot be used against the applicant. &inally, if the non/669 family member was already in the 67 country when s2he met their future 67 national spouse, that is fine F to ta!e a literal interpretation of join or accompany would be too restrictive. Ihere an immigration policy has been breached, that doesnt involve the fundamental interest of society or are not fraud <such as a sham marriage=, could lead to a fine but this does not translate into interference with the free movement rights. The discrimination issue addressed whereby citi8ens who have not exercised free movement rights are treated less favourably than citi8ens <of the same or a different 5ember 3tate= who have. This was left to the individual countries to decide on, as it was deemed to be a wholly internal rule. http>22www.bailii.org2cgi/ bin2mar!up.cgiD docE2eu2cases2676.*2-11@2.+-)1@. htmlGAueryEmetoc!GmethodEboole an +- 5ar -1+J ./JH? " G B 4ight to return to country of nationality <3urinder 3ingh= applies to all 67 citi8ens who have genuinely exercised free movement rights including self/sufficient persons F right thus not limited to wor!ers. However right is contingent on showing genuine residence and creation or strengthening of http>22curia.europa.eu2juris2document2 document.jsfD textEGdocidE+J,1@-GpagendexE1 - family life. 5oving to another 67 country in order to create or strengthen family life does not constitute abuse. The judges ruled that the conditions for granting right of residence to a non/669 family member in the 67 citi8ens country of nationality should not in principle be more strict than that for a family member of an 67 citi8en exercising treaty rights in an 67 member state other than that of which s2he is a national. GdoclangE6'GmodeElstGdirEGocc EfirstGpartE+GcidE@H?1, http>22www.freemovement.org.u!2suri nder/singh/immigration/route2 +J #ec +,,H ./JJJ2,0 5egner ./H02@+ (evin This relates to the case where the plaintiffs wor!ed a max of +1 hours a wee!, receiving less than +2) th of the average monthly salary. f wor!erKs earnings do not cover all his needs this does not prevent him from being considered a wor!er. f employment yields income lower than minimum reAuired for subsistence <.ase H02@+ (evin v 3taatssecretaris van *ustitie L+,@-M= does not prevent the person from being regarded as a wor!er, as long as wor! was genuine and effective. + #itto if wor! does not exceed +@ hours a wee! <.ase ./+1-2@@ 4u8ius/Iilbrin! L+,@,M= or +- hours a wee! <.ase +0,2@H :empf v 3taatssecretaris van *ustitie L+,@?M= or even +1 hours a wee! <see .ase +)+2@@ 4inner/:Nhn L+,@,M= But wor! must be more than ancillary and purely marginal. .laiming benefits whilst wor!ing does not render the wor! not genuine or ineffective. http>22www.bailii.org2cgi/ bin2mar!up.cgiD docEeu2cases2676.*2+,,H2.JJJ,0.h tmlGAueryEmegner http>22eur/lex.europa.eu2legal/ content26'2TOT2$#&2D uriE.6(6O>?+,@+.*11H0P375Gfr omE6' ++ #ec -11) 6ind 'o reAuirement for a person returning to their country of nationality, having exercised free movement to wor! in another member state, to underta!e genuine and effective activities also in their own country of nationality. 5r 6ind is a #utch citi8en who returned to 'etherlands after over a year wor!ing in the 7:, with his non/669 daughter. "n his return to 'etherlands he was claiming social assistance and suffering from ill/health, thus had not sought employment. 6ind was covered by the national sic!ness insurance and had indicated steps ta!en to re/enter the wor!force. However his daughters application was refused on the basis that 6ind was not engaged in genuine and effective activities. The court ruled that that was not acceptable as such barriers to family reunification undermine the right to free movement, as long as the family member is under -+ years old or dependent on the 67 http>22www.bailii.org2cgi/ bin2mar!up.cgiD docE2eu2cases2676.*2-11)2.-,+1H. htmlGAueryEtitleQ <QeindQ=GmethodEboolean https>22www.whatdothey!now.com2re Auest2thePeindPcasePcasePnumberPc P-,+1Rincoming/01-H+0 + Ior!er as defined in 9rticle J@ <(evin and :empf cases= or 9rticle ++, of 66. Treaty <4inner/:Nhn case= or for purposes of #irective ),2) <4u8ius/Iilbrin! case=. 0 citi8en. Ihether or not the family member had the right to reside in the 67 citi8ens country of nationality before the initial exercise of free movement has no bearing. *!+, - national of a Member State could be deterred from leaving that Member State in order to pursue gainful employment in the territory of another Member State if he does not have the certainty of being able to return to his Member State of origin, irrespective of whether he is going to engage in economic activity in the latter State( *!6, 7hat deterrent effect would also derive simply from the prospect, for that same national, of not being able, on returning to his Member State of origin, to continue living together with close relatives, a way of life which may have come into being in the host Member State as a result of marriage or family reunification( -H *ul -11- ./JH,2,, 549O n the absence of a valid # card or passport, a third country national cannot be refused entry where they can prove their identity and conjugal ties with an 67 national, and the authorities cannot evidence a refusal on public policy2security2health grounds. 3uch applicants cannot be refused the issuance of a residence permit on the sole ground that they entered the country unlawfully, or that their visa expired before the issue of said permit F although unlawful entry could lead to proportionate sanctions e.g. monetary fine. http>22eur/ lex.europa.eu2(ex7ri3erv2(ex7ri3er v.doD uriE.6(6O>?+,,,.*1JH,>6'>HT5 ( +@ *un +,@) .ase 0+?2@H (ebon Benefits should not affect status of dependencyS this came about in relation to a claim for minimex <minimum level of subsistence in Belgium=. 4eason for dependency is not relevant nor is whether the applicant would be able to support themselves by ta!ing up paid employment. *."(, 8t must be pointed out, in the first place, that a claim for the grant of the minime9 submitted by a member of a migrant wor$er:s family who is dependent on the wor$er cannot affect the claimant:s status as a dependent member of the wor$er:s family ( 7o decide otherwise would amount to accepting that the grant of the minime9 could result in the claimant forfeiting the status of dependent member of the family and consequently /ustify either the withdrawal of the minime9 itself or even the loss of the right of residence ( Such a solution would in practice preclude a dependent member of a wor$er:s family from claiming the minime9 and would, for that reason, undermine the equal treatment accorded to the migrant wor$er ( 7he status of dependent member of a wor$er:s family should therefore be considered independently of the grant of the minime9(; http>22www.bailii.org2eu2cases2676.* 2+,@)240+?@H.html http>22eur/ lex.europa.eu2resource.htmlD uriEcellar>JH)@a+?0/H,aa/J+,a/@)af/ J01cb?0c@fbd.111-.102#".P+Gfor matE$#& +) "ct -1+J 92J1@?@2-1+0 .ain 7pper Tribunal rules 3urinder 3ingh can apply to extended family, such as unmarried partners. 6ssentially thereby ruling against H"s restrictive application of 3urinder 3ingh to only direct family https>22u!visaandimmigrationforum.fi les.wordpress.com2-1+J2+12!amila/ J members. Bnotwithstanding that Surinder Singh concerns family members as defined by the Directive, we cannot see any distinction in principle between *it, and the case of the appellant before us( 8n our /udgement, the e9ercise of the right of free movement by an 33- national is as li$ely to be adversely affected by the inability of a durable partner to reside with the 33- national in the host State, as it would be were his or her spouse to be denied residence status( we do consider that the Surinder Singh principle does e9tend to persons such as the appellant who are in a durable relationship santos/campelo/cain.pdf http>22u!/immigration/ blog.com2-1+J2+12-+2judges/thwart/ u!/governments/attempts/to/ma!e/ british/second/class/citi8ens/surinder/ singh/applied/to/extended/family2 +J #ec -11, .02-11,21+-, $edro .ase of a $ortugese national living with her son in the 7:S mostly financially dependent on him, whose claim for 3tate $ension .redit was refused. .ourt ruled she was entitled to $ension .redit irrespective of whether the applicant was dependent on her son in the country of origin and that the point the dependency arose did not matter, as long as there is actual dependency. http>22www.bailii.org2ew2cases26I. 92.iv2-11,2+0H@.html +, "ct -11J ./-1121- .hen 9 minor 67 citi8en exercising free movement rights has the right to reside in another 5ember 3tate for an indefinite period, with his2her non/67 primary carer, if the minor has appropriate sic!ness insurance and the primary carer has sufficient resources for the minor not to become a burden on public finances. This is in accordance with 9rticle +@ and #irective ,120?-. These provisions extend the right to reside with the child, to the primary carer as well. http>22www.bailii.org2eu2cases2676.* 2-11J2.-111-.html - *uly -11, .ommissions guidance ."5<-11,= 0+0 ;7here is no abuse where 3< citi=ens and their family members obtain a right of residence under #ommunity law in a Member State other than that of the 3< citi=ens nationality as they are benefiting from an advantage inherent in the e9ercise of the right of free movement protected by the 7reaty, regardless of the purpose of their move to that State( >y the same to$en, #ommunity law protects 3< citi=ens who return home after having e9ercised their free movement rights( 7herefore residence in e9cess of three months constitute genuine residence and therefore achieves the purpose of the 3< rules on free movement( 8f the purpose of the 3< rules is achieved then there is no need to loo$ into the motives that motivated you to move to another 3< country() http>22eur/ lex.europa.eu2(ex7ri3erv2(ex7ri3er v.doD uriE."5>-11,>10+0>&'>6'>$#& 4egulation +?+-2?@ 9rticle + F free movement for purposes of employment for 669 national 9rticle -, 0 F no discrimination towards 669 nationals in employment <linguistic restrictions can be applied where relevant to role= 9rticle J F cannot have Auotas applied to number of 669 nationals employed. 669 nationals to be http>22eur/lex.europa.eu2legal/ content26'2TOT2HT5(2D uriE.6(6O>0+,?@4+?+-GfromE6' H treated the same as domestic citi8ens. 9rticle H F 669 nationals to be afforded the same access to employment assistance as domestic citi8ens 9rticle ? F Tocational tests permitted where specified in employment offer but they cant be expressly applied on discriminatory grounds. 9rticle ) F 669 wor!ers entitled to same conditions of employment, social and tax advantages as locals including access to training and vocational schools. 9rticle @ F 669 nationals eAual treatment as regards to membership of trade unionsS specifies conditions on management roles. 9rticle , F 669 nationals same access to housing benefits and rights as domestic citi8ens. 9rticle +1 F family members covered by free movement ....... -, 9pr -11J #irective -11J20@26. <the U.iti8ensK #irectiveU= 9rticle +/conditions governing exercise of free movement and residence of 669 citi8ens and their family membersS 9rticle - / definitions 9rticle 0 / eligibility 9rticle J / 4ight to travel to another member state with valid identity card, of 669 nationals and family members 9rticle H/ ;ranting of leave to enter 9rticle ?<+= F 669 citi8ens have a right of residence on the territory of another 5ember 3tate for a period of up to three monthsV 9rticle ) F .onditions for right of residence for longer than three months ....... http>22eur/ lex.europa.eu2(ex7ri3erv2(ex7ri3er v.doD uriE"*>(>-11J>+H@>11))>1+-0>en>$# & http>22eumovement.wordpress.com2di rective/-11J0@ec2 Legal advice: Wour local university may operate a law clinic where you can get free legal advice. 5any clinics <including some outside the 7:= are listed on the website of (awIor!s at the bottom of the page> http>22www.lawwor!s.org.u!2list/of/lawwor!s/member/clinics "ther law clinics are listed here> http>22www.encle.org2membership/directories2mdir Wou may also contact a local law centre <those in Harrow, .oventry and ;lasgow reportedly have a lot of experience in 67 law=> http>22www.lawcentres.org.u!2 Where a solicitor or barrister is instructed, readers are advised to ensure they specialise in EU immigration hich is very different to UK immigration! ? The mmigration (aw $ractitioners 9ssociation is an association of immigration specialists, many of which are solicitors but some of their member organisations include (aw .entres that provide free advice. http>22www.ilpa.org.u!2directory2webdirect.html Wou can search for solicitors on the (aw 3ociety s website F enter your postcode and select immigration law from the area of practice drop/down menu> http>22solicitors.lawsociety.org.u!2D$roETrue . )
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Interuniversitary Consortium on Migration and Integration: Qualitative Research Part Migrants’ Political and Social Participation in Belgium The case of Visé (Liège Province, Wallonia) and Antwerp (Antwerp, Flanders)