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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. $ride is a strange thing%
&urthermore, Home "ffice is notoriously slow in updating its regulations to reflect recent court decisions it is not happy with. t is also not un!nown for Home
"ffice to adopt the most restrictive interpretation where possible, leaving it to another case years down the line, to shed clarity or hold it accountable.
'oted below is the !ey message as understand it. (in!s are provided so readers can form their own opinions and as always, when in any doubt, you are strongly
advised to see! specialist immigration advice.
Date of
Reference Key message Relevant links
) *ul
3urinder 3ingh
4uled that having exercised free movement rights to wor! in another 5ember 3tate, the 67 citi8en
on his2her return to the 5ember 3tate of which s2he is a national has the right to his2her spouse to
enjoy at least the same rights as would be granted were the family to move to another 5ember 3tate.
6.g. 9 British man moves to &rance for wor! and lives there with his wife. He wants to move bac! to
the 7:. 7: cannot impose more restrictions on this couple than say ;ermany or reland would.
<however see 6ind which removes the condition to engage in employment on return to home 5ember
01 5ay
.ommission of
.ommunities v
5ember states cannot reAuire that 67 nationals state purpose and duration of stay and financial
means available for it.
where a Member State requires nationals of another Member State to answer questions
concerning the purpose and duration of their stay and the financial means at their disposal for it
before being permitted to enter its territory, it is in breach of its obligations under Directive 68!6"
on the abolition of restrictions on movement and residence within the #ommunity for wor$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()
-0 3ep
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
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(
-H *uly
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.
+- 5ar
./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
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.
+J #ec
./H02@+ (evin
This relates to the case where the plaintiffs wor!ed a max of +1 hours a wee!, receiving less than
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.
++ #ec
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
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=.
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
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.
+@ *un
.ase 0+?2@H
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(;
+) "ct
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
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
+J #ec
.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 $ension .redit irrespective of whether the applicant was dependent on
her son in the country of origin and that the point the dependency arose did not matter, as long as
there is actual dependency.
+, "ct
9 minor 67 citi8en exercising free movement rights has the right to reside in another 5ember 3tate
for an indefinite period, with his2her non/67 primary carer, if the minor has appropriate sic!ness
insurance and the primary carer has sufficient resources for the minor not to become a burden on
public finances. This is in accordance with 9rticle +@ and #irective ,120?-. These provisions extend
the right to reside with the child, to the primary carer as well.
- *uly
."5<-11,= 0+0
;7here is no abuse where 3< citi=ens and their family members obtain a right of residence under
#ommunity law in a Member State other than that of the 3< citi=ens nationality as they are
benefiting from an advantage inherent in the e9ercise of the right of free movement protected by the
7reaty, regardless of the purpose of their move to that State( >y the same to$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()
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
treated the same as domestic citi8ens.
9rticle H F 669 nationals to be afforded the same access to employment assistance as domestic
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
-11J20@26. <the
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
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>
"ther law clinics are listed here>
Wou may also contact a local law centre <those in Harrow, .oventry and ;lasgow reportedly have a lot of experience in 67 law=>
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.
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>

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