The non-EEA national family members of EEA nationals/British citizens, who resided in EEA countries with their British citizen/EEA national sponsors (persons who support their non-EEA national family members to enter the UK), are subject to the same rights as their sponsors under EU free movement law. However, the non-EEA family members of EEA nationals/British citizens who apply for residence permits UK have been facing refusals from the Home Office on the basis that they do not satisfy the conditions of the ‘centre of life’ test.

The concern we aim to address is whether ‘Centre of life’ tests are relevant to determine the ‘genuine’ intention of EEA or UK nationals in exercising their free movement rights under the Charter of Fundamental Rights of the European Union (EUCFR).

To better understand the circumstances in which this question would arise, let us consider the facts of ZA (Reg 9. EEA Regs; abuse of rights) Afghanistan [2019] UKUT 281 (IAC).

In the case in point, ZA is a non-EEA national spouse of a British citizen (were married in 2003). ZA had applied to enter the UK as the spouse of a British national in 2006 and 2008, the said applications were refused.

Subsequently, in May 2015, ZA’s husband moved to Ireland intending to settle there (to avoid the stress and hustle of London) and took up employment in Ireland. During the course of his employment, he learned that it would be possible for him to bring his wife to Ireland under EU regulations. He managed to successfully apply for and obtain a family permit for his wife, who eventually joined him in Ireland.

In May of 2016 his employment in Ireland came to an end, he along with ZA and her children moved back to the UK. Thereafter, ZA unsuccessfully applied for a residence permit in the UK, the Home Office refused her UK Spouse Visa application stating that ZA and her husband’s residence in Ireland were not ‘genuine’ and were solely for the purpose of circumventing UK immigration laws. ZA appealed against the decision of the Home Office to refuse her application, to the First-Tier Tribunal (FTT).

The FTT judge considered the appeal and stated that the family’s residence in Ireland was, in fact, not ‘genuine’. He stated that the conditions of their residence in Ireland did not satisfy the ‘centre of life’ test (as stipulated under Regulation 9(3)(a) of the Immigration (European Economic Area) Regulations 2016).

Regulation 9(3)(a) of the Immigration (European Economic Area) Regulations 2016 states the following:

‘(3) Factors relevant to whether residence in the EEA state is or was genuine include –

Whether the centre of British Citizen’s life transferred to the EEA state;’

ZA further sought permission to appeal against the decision of the FTT judge, to the Upper Tribunal (UT). The UT allowed ZA’s appeal and considered the matter and determined that the phrase ‘centre of life’ is not mentioned in any case laws nor is it defined in European law.

The judge reaffirmed that there is no requirement under EU law that the ‘centre of one’s life be transferred to the ‘host state’ (in the case in point, Ireland); Thus, it cannot be concluded that the family’s residence in Ireland is not ‘genuine’.

In light of the above-mentioned facts, we understand that the ‘centre of life test’ as stipulated under Regulation 9(3)(a) of the Immigration (European Economic Area) Regulations 2016 is in contravention of European laws and may not be applied in the determination of EEA applications. This is great news for EEA family members applying for UK residence permits.

If you got your EEA application refused and want to apply for EEA Family Permit Visa in the UK, you can speak to our UK EEA Family Permit Visa Experts on  +91 98191 27002 or [fusion_tooltip title=”Email to info@smi.legal” class=”” id=”” placement=”top” trigger=”hover”]info@smi.legal[/fusion_tooltip] and book your consultation appointment with our UK immigration advisor for further clarifications and queries.

You can also walk-in in our offices at Mumbai, Delhi, Bangalore, Chandigarh and London with prior appointment.

As of 31st October 2019 (the date on which Britain is exiting the European Union), inches closer the EEA nationals presently residing in the UK or looking to exercise their treaty rights in the UK have numerous concerns that need to be clarified.

One of these concerns is whether self-employed (in the UK) EEA nationals would retain the right to remain in the UK during their maternity leave or would they lose such right along with the welfare benefits (such as, child benefit, tax credits, homelessness assistance, social housing and other related benefits) they are otherwise entitled to.

The said concern was first raised in 2012! The concern was raised in the case of Saint Prix v SSWP (Secretary of State for Work and Pension). Ms Saint Prix (a French national) who was employed as a nursery teacher (in the UK), had applied for an income grant while she had to be unemployed by reason of her pregnancy (11 weeks before her due date). Her request for the said grant was refused in 2008. The claimant decided to file an appeal with the First-Tier Tribunal against the refusal decision.

The matter eventually reached the Supreme Court which referred it to the First Chamber. The decision made in the said case stated:

“Article 45 TFEU must be interpreted as meaning that a woman who gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth retains the status of ‘worker’, within the meaning of that article, provided she returns to work or finds another job within a reasonable period after the birth of her child.”

This clarified the UK government’s position on this issue or so people thought. The said issue was raised again in C‑544/18 HMRC v Dakneviciute. In the said case, the appellant was a Lithuanian national, residing in the UK and self-employed as a beauty therapist as of 25th December. She got pregnant in the same month and applied for maternity benefit in 2014. Since 11th May 2014, she started receiving maternity allowance. She was unemployed for the period between 22 July 2014 and the end of October 2014, during which she made an application for child benefit on 27th August 2014. The said application was refused and Ms Dakneviciute filed an appeal with the First-Tier Tribunal.

The matter then went on to the Upper Tribunal which referred the matter to the Court of justice. The court decided that:

“Ms Dakneviciute ceased and then resumed a self-employed marginal activity due to the physical constraints of the late stages of pregnancy and the immediate aftermath of childbirth, she had, under EU law, the right to reside in the United Kingdom.”

This decision was made pursuant to Under EU law (Directive 2004/38/EC), Article 8(1) of which provides that:

‘The Member States shall take the necessary measures to ensure those female self-employed workers… may, in accordance with national law, be granted a sufficient maternity allowance enabling interruptions in their occupational activity owing to pregnancy or motherhood for at least 14 weeks.’
“In that regard, it should be noted that Directive 2004/38 is a single legislative act codifying and revising earlier instruments of EU law in order to facilitate the exercise of the primary and individual right of Union citizens to move and reside freely within the territory of the Member States”

Therefore, it has been finally re-affirmed (hopefully for the last time) that self-employed (in the UK) EEA nationals are entitled to a right of residence and entitled to welfare benefits (such as child benefit, tax credits, homelessness assistance, social housing and other related benefits) during their maternity leave.

If you want to apply for EEA Family Permit Visa in the UK, you can speak to our UK EEA Family Permit Visa Experts on +91 98191 27002 or [fusion_tooltip title=”Email to info@smi.legal” class=”” id=”” placement=”top” trigger=”hover”]info@smi.legal[/fusion_tooltip] and book your consultation appointment with our UK immigration advisor for further clarifications and queries. You can also walk-in in our offices at Mumbai, Delhi, Bangalore, Chandigarh and London with prior appointment.