Note: I may continually update this page if some explanations are unclear, or readers' questions arise..
Did you know, with the exception of elections, I have more rights living in The Netherlands than the UK? And similarly a Dutch person has more rights in the UK than I do as a British citizen? In general, if you hold citizenship in one EEA state, you will have more migration rights living in a different EEA member state. This post describes what is known as the Surinder Singh route to restore that balance.
The clearest inequality is evident in family migration. An EEA citizen can bring his/her partner plus the family of the partner. Each person in the partner's family, including the partner, can be of any nationality, and they can reside on a permanent basis with the same rights (including work) as an EEA citizen. Only person in the entire entourage needs to hold citizenship of the EEA.
Why is this important or relevant to many people? Because for many countries, to bring a partner into the country usually requires some minimum income (not an insignificant amount!) plus language/cultural tests which are not that easy to pass either. In the context of The Netherlands, the income requirement is over €1600 per month, which I imagine would rule out many people!
All is enshrined in Directive 2004/38/EC . There are a few points in the Directive, which I try to summarise in non-legal terminology:
- All of what I'm saying saying on this page only applies to passport holders of European Economic Community. That is the 28 Member States of the European Union plus Iceland, Norway and Liechtenstein.
- For ease of reference, I'm using the term ‘EEA citizen' meaning a National of an EEA Member State who is living (and in most cases studying or working) in another EEA Member State. If you hold multiple citizenships of EEA Member States and are living in the country of one of your citizenships, then this brings complexities, which I'll mention in passing later.
- If you are living in your home EEA country, and have never lived in another EEA country, then you are not an EEA citizen. I will call you a ‘Host National' in this post.
- An EEA Member State, the host country, cannot be give less rights to an EEA citizen living there than its Host National.
- If you are an EEA citizen, you are governed by EEA law rather than national law, which gives that added flexibility for family migration.
- After 5 years the entire family, including the EEA citizen, is automatically granted permanent residence in the host country. There is no need to pass any language tests or submit another application for it.
For Directive 2004/38/EC to apply to the EEA citizen plus his family members, the EEA citizen, in addition to living in a country other than his own, be doing any of the following after 3 months of living in the new country:
- be employed by a company in the host country,
- be self-employed in the host country,
- be studying,
- be financially self-sufficient and with health insurance.
There is no other condition to yours and your family members' stay.
“How does a Host National become an EEA citizen in his home country?”
This case was famously contested by Surinder Singh in 1992. The European Court of Justice (ECJ) ruled that once you have activated/exercised your EEA citizen rights in another country first, you are entitled to move back to your home country as an EEA citizen, which means your entire family can come with you visa-free. The reason why you activated your EEA Treaty rights does not matter.
Understandably many countries are hesitant about this approach, and calls it an abuse of rights, but the ECJ slapped them all back with another ruling in 2003 in the Case of Akrich where the Judge ruled in paragraph 2:
Where the marriage between a national of a Member State and a national of a non-Member State is genuine, the fact that the citizen of the Union installed him or herself in another Member State in order, on their return to the Member State of which he or she is a national, to obtain for his or her spouse the benefit of rights conferred by Community law is not relevant to an assessment of their legal situation by the competent authorities of the latter State. The motives which may have prompted a worker of a Member State to seek employment in another Member State are of no account as regards his or her right to enter and reside in the territory of the latter State provided that he or she there pursues or wishes to pursue an effective and genuine activity, nor are they relevant in assessing the legal situation of the couple on its return to the Member State of which the worker is a national.
For further information about the Surinder Singh route, here is a BBC article, with videos, released in June 2013 about some real-life couples exercising this practice. A word of advice, don't bother watching the video at the top of the page as it is only a 2-minute summary. I would watch the 10 minute video near the end of the article which explains things in better depth.
For even more details about Surinder Singh route, plus the Directive as a whole, there is a well-researched blog called “Freedom of Movement in the EU” which serves as a great reference point.