Centre of Life test within the EEA Regulations 2016 held unlawful

On 23 July 2019, the Upper Tribunal (Immigration & Asylum chamber) in the case of ZA (Reg 9. EEA Regs; abuse of rights) Afghanistan [2019] UKUT 281 (IAC), held that the ‘centre of life’ test through Regulation 9 (3) of the Immigration (EEA) Regulations 2016 (EEA Regulations) is not a requirement of EU law.

The ‘centre of life’ test was inserted into Regulation 9 of the EEA Regulations on 25 November 2016 and allowed the Home Office to use new criteria when assessing whether the stay by a British Citizen (BC) and his family member in another member state is ‘genuine’ through Regulation 9 (2) of the EEA Regulations prior to return to the UK. It applied to BC’s who live in another EU state and exercise an EEA Treaty Right through:

• working as an employee
• self-employment
• self-sufficiency or
• study and then return to the home state with their non-European spouse.

The UK government modified the EEA Regulations 2006, by introducing the ‘centre of life’ test allowing the Home Office to look at the following factors such when assessing Regulation 9 (3) of the EEA Regulations:

       i.          length of stay

      ii.          quality of the residence and whether it is his principal place of residence in the EU state

     iii.          degree of integration and

    iv.          the lawfulness of the stay when assessing whether the period stay in another state was genuine.

This led to the Home Office refusing applications on an unknown, but perhaps not insignificant scale.

In a lengthy determination, the Tribunal noted the leading case of Surinder Singh, which decided that a BC national should not be ‘deterred’ under EU laws from going to exercise a Treaty Right in another EU host state, if he felt that he would be unable to return to his home state with a family member – and became known as the Surinder Singh route under EEA law. The facts in this case were broadly similar.

The Tribunal outlined the Court of Justice of the European Union’s jurisprudence through the following cases Levin where it decided that the ‘motive’ of an individual is not relevant and thereby affirming it’s decision of Akrich and Bangar where it observed a citizen should not be ‘discouraged’ from leaving the home state if he is ‘uncertain’ of the position of family members on return and, finally in O and B which did not lay down any specific criteria to which an authority should refer to when carrying an assessment, but requires a ‘fact-sensitive’ approach.

The Tribunal noted that the ‘centre of life’ had no reference in EU:

• case law
• definition in an article or
• law.

It also observed that a challenge using the ‘doctrine of abuse’ could be made in the exercise of the Treaty Right itself and provided example of a company relocating to avoid tax and through unlawful employment.

The judgement clarifies the ‘centre of life’ test does not apply and the only restriction on ‘freedom of movement’ is if the exercise of a Treaty Right is ‘ancillary’ or ‘marginal’ or an ‘abuse’ of EU laws in the exercise of EU Treaty Rights, but the burden lies on the Secretary of State.

It remains to be seen, as to whether the Home Office will amend the EEA Regulations to reflect this position in its entirety. The Home Office were quick to amend the EEA Regulations in July 2019 to make it clear that the non-EEA family member had to be lawfully resident in the EU state, but the ‘centre of life’ test text remains and was not amended.

The EEA Regulations still have significance as they are in force and will remain in place through the proposed transition period, assuming the EU Withdrawal Bill is enacted. Legal advice should be sought from an immigration lawyer if you require legal advice relating to this area of immigration law.