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.

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