European Operational Policy Team
Regulation 9 (Surinder Singh Cases)
01 January 2014
Purpose of Notice
1. This notice must be read alongside notice 05/11 and section 5.5 of chapter 5
of the ECIs. This notice provides guidance to case workers on how to
consider applications from the non-EEA national spouse or civil partner of a
British citizen who has exercised Treaty rights in another EEA member state.
2. The Immigration (European Economic Area) (Amendment) (No.2) Regulations
2013 were amended on 01 January 2014 to include a new threshold test to
tighten the circumstances in which family members of British Citizens can rely
on the Court of Justice of the European Union (ECJ) judgment in Surinder
C-370/90). The Surinder Singh
judgment was implemented into the
2006 Regulations by way of regulation 9.
3. The new requirement at regulation 9(2)(c) and 9(3) requires the British citizen
to have transferred the centre of their life to another EEA member state,
where they resided as a worker or self-employed person with their spouse or
civil partner before returning to the UK.
4. This change was made to ensure that a British Citizen engages in genuine
and effective use of the rights conferred by EU free movement law before a
right to reside in the United Kingdom is conferred on a non-EEA family
member. The principle behind Surinder Singh
is the need to ensure that
nationals of a Member State are not deterred from exercising Treaty rights
through not being able to return to their Member State of origin with third
country family members.
5. These amendments came into force on the 01 January 2014 and apply to all
applications for documentation on or after that date, however, see Annex A for
details of the transitional arrangements.
6. Regulation 9(2)(c) requires a British citizen to demonstrate that they have
transferred the centre of their life to another EEA member state where they
were residing as a worker or self employed person.
7. Regulation 9(3) specifies the factors to be considered when deciding whether
a British citizen has transferred the centre of their life to another member
state. These include, but are not limited to:
a. the period of residence in another EEA member state as a worker or
b. the location of the British citizen’s principal residence; and
c. the degree of integration of the British citizen in the host member state.
The criteria are indicative and it is not necessary to meet all three.
Period of residence in another EEA member state
8. In general, the longer the British citizen has resided in another EEA member
state as a worker or self-employed person, the more likely it is that they have
transferred the centre of their life to that member state.
9. For example, a British citizen who has lived and worked in another member
state for a period of two years is more likely meet the requirement of
regulation 9(2)(c) than a British citizen who was employed in another Member
state for a period of four months.
10. The principal residence is the place and country where the British citizen’s life
is primarily based.
11. For example, a British citizen worked in France for three months, staying in a
hotel during the week and returning to their main home in the UK at the
weekends. In this case they are unlikely to meet the requirements of
regulation 9(2)(c) as their principal residence would be considered to be the
Degree of integration
12. When considering the degree of integration in another EEA member state,
relevant factors may include:
a. Does the British citizen have any children born in the host member
state? If so, are the children attending schools in the host member
b. Does the British citizen have any other family members resident in the
host member state?
c. Has the British citizen immersed themselves into the life and culture of
the host member state? For example, have they bought property
there? Do they speak the language? Are they involved with the local
The more of these factors that are present on a case, the more likely the
British citizen is to be considered as having transferred the centre of their life.
13. For example, a British citizen is working in France, is fluent in French and has
bought a house there. Their children were born in France and are educated in
a French school where the British citizen sits on the school council. In this
example it is likely that the British citizen has moved the centre of their life to
France. Contrast with the example of a British citizen who will be working in
France for three months, who resides in a hotel and returns to the UK every
weekend. They don’t speak the language and educate their children in a
school in the UK. In this second example they are less likely to have moved
the centre of their life to the UK.
14. It should be noted that the factors set out in regulation 9(3) are not
determinative. The question as to whether the British citizen would be
deterred from exercising their free movement rights were their spouse/civil
partner refused, must be determined having regard to all relevant factors.
15. Where any of the above factors are not satisfied, the application should be
refused in line with regulation 9(2)(c).
16. All such refusals would attract an in-country right of appeal subject to the
restrictions in regulation 26.
17. If you have any queries about this notice, please contact [REDACTED –
] on [REDACTED – section 40(2)
], or email the European
Operational Policy Mailbox at email@example.com
[REDACTED – section 40(2)
Head of European Operational Policy
01 January 2014
1. The changes to regulation 9 come into effect on 01 January 2014. However,
transitional provisions which allow applicants to apply on the previous scope
of the regulation 9 will apply in certain circumstances.
2. The transitional provisions apply where the spouse/civil partner of the British
a) has a right to permanent residence in the UK on the 01 January
b) has a right to reside in the UK on 01 January 2014 and
Holds a valid registration certificate or residence card or
EEA family permit issued under the 2006 Regulations; or
Has made an application under the 2006 Regulations for
a registration certificate or residence card or EEA family
permit which has not yet been determined; or
Has made an application under the 2006 Regulations for
a registration certificate or residence card which has been
refused and in relation to which an appeal under
regulation 26 could be brought whilst the appellant is in
the UK (excluding out of time appeals) or an appeal is
3. If the above criteria are met, these transitional arrangements apply until the
occurrence of one of the following events:
a) the six month validity period to enter the UK in reliance on a family
permit has expired and the family member has not entered the UK;
b) An appeal (excluding out of time appeals) can no longer be brought
and no appeal has been brought;
c) Any appeal against the decision to refuse to issue residence
documentation is dismissed, withdrawn or abandoned;
d) The person ceases to be the family member or family member who
has retained the right of residence;
e) Any right of permanent residence is lost as a result of two more
consecutive years absence from the UK.