There has been a lot of talk about the European right to free movement lately and, while we still remain members of the EU, nationals of EU member states maintain their rights to freely live and work throughout the Union.

It is also the case that, further to the landmark case of ‘Surinder Singh’ back in 1992, if (for example) a British national were to work in another EU member state and form a relationship whilst there with a non-EU national, that family member would be entitled to return to the UK with the British national and the couple would be treated as EU nationals who had exercised their free movement rights.

So, if you were to get a job in Spain and meet the love of your life whilst working there, who happened to be Australian, they could simply apply for a permit confirming they were your partner from the Home Office and then come back with you if you later decided to relocate back to the UK. This application is also free!

This means that, in these limited circumstances, British nationals can avoid the expense and additional financial thresholds that have to be met to bring back a spouse under domestic law where you need to be earning over £18,600 and the application fee alone is over £1,500!

The Home Office under the Conservatives did not like this, believing it to be a loophole to avoid harsher immigration control, and added what was known as the ‘Centre of Life’ test. That meant if you did try to use this route you would have to provide additional evidence to show that you and your partner were living in the EU genuinely and had integrated into the local community.

It isn’t enough to provide wage slips and tenancy agreements. They would want your gym membership, proof your children were in local schools, etc. Negative inference could also be made if you had maintained or owned a property in the UK whilst living overseas.

The EU didn’t agree – this approach would mean that those who lived in one EU state but worked in another (i.e. if you lived in France but commuted to Belgium) would lose the benefits of free movement. The European Court of Justice upheld this in 2014, stating that such a restriction would put workers off from seeking employment throughout the EU, which was the whole point of free movement in the first place.

Regardless, the Home Office remained steadfast in their approach and continued to force the ‘Centre of Life’ test on homebound Brits.

The new case of ‘ZA’ has finally challenged the status-quo, arguing that what must be genuine for the migrant is their qualifying activity and not their motive in moving country.

For example, if you can show your employment overseas was your main source of income and not an additional stream of income, then it doesn’t matter why you chose to leave the UK in the first place.

A detailed analysis of the case is available here at the (always excellent) Free Movement blog. The key paragraph is clear, concise and damning:

‘The requirement to have transferred the centre of one’s life to the host member state is not a requirement of EU law, nor is it endorsed by the CJEU (Court of Justice of the European Union).’

Ultimately, it is not necessary to live every aspect of your life in the target country in order to be enjoying free movement. Free movement is not limited in these aspects. According to these rulings, what is significant is the exercising of the treaty rights. This means things like working in an EU member state, studying, or being self-sufficient.

As Brexit looms, it seems unlikely the Home Office will be making major changes to the current regulations or issuing their Entry Clearance Officers with new operational guidance.

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