As the projected day of the UK’s departure from the EU, many Britons chose to return to their home country following years of working or doing business in the EU.
Most of them already know that their non-EU family members can benefit from the landmark ruling in Surinder Singh and be admitted in the UK under EU law – ironically, much more reasonable and benign than UK immigration rules for family members joining British citizens in the UK. However, the Home Office made sure obtaining an EU family permit and establishing oneself in the UK upon return is extremely difficult – even if it means diverting from the Court of Justice of the European Union (CJEU) case law.
In a nutshell, in the case of Surinder Singh the European Court of Justice (ECJ – CJEU’s predecessor) established that due to the fact that the right of EU citizens to move and reside freely across the EU – including the right to be joined by family members – is governed by EU law, it must encompass one’s right to return to their home Member State. ECJ came to a logical conclusion that to state otherwise would discourage EU citizens from exercising their Treaty rights in the first place, thus undermining the very purpose of the freedom of movement. That is why British citizens coming back from Spain, Greece, Germany or the Republic of Ireland, can sponsor their family members (including dependent adult children and parents) under EU law – creating a serious dent in the prohibitive family visa policy introduced by the Home Office in 2012. Many families otherwise unable to stay together have benefitted immensely from Surinder Singh: be it for the reasons of not being able to meet the stringent financial requirement or their family members being excluded from the scope of Appendix FM to the Immigration Rules to begin with (such as children above the age of 18 or direct dependent ascendants).
Naturally, the government that vowed to bring the net migration numbers down no matter the cost, saw Surinder Singh as a way to circumnavigate UK immigration law. As a consequence, the principle, however enshrined in the Immigration (EEA) Regulations 2006 and 2016, has seen its scope gradually and severely limited – often based on dubious interpretation of, if not blatant disregard for EU case law.
Since the ruling in Surinder Singh was pronounced, the right of a returning EU citizen to be joined by his or her family members has been subject to further analysis by the ECJ/CJEU. In 2003 the ECJ confirmed that the mere fact the spouses moved to another Member State in order to benefit from Surinder Singh is not relevant to an assessment of their legal situation by the competent authorities of the latter State – provided the marriage is genuine. In 2007 the Court held that application of EU law by analogy to family members of returning EU citizens confers upon them the right to reside in the Member State of which the worker is a national whether or not that worker carries on working or running a business – even if that family member did not previously have a right under national law to reside in the Member State of which the worker is a national. Finally, in 2014 the CJEU have provided a new perspective for Surinder Singh applicants, including in its reasoning the recently introduced concept of EU citizenship.
The latter case accidentally contributed to the EEA Regulations 2006 being amended in 2014 to seriously narrow down the scope of Surinder Singh by introducing the ‘genuine residence’ test, which includes factors such as: whether the centre of the British citizen’s life transferred to the Member State; the nature and quality of their accommodation in the Member State; or the degree of their integration in the Member State. Interestingly enough, the amendment has generally been considered even though the inconsistent with EU law. This is due the fact UK had done so inspired by the opinion of the Advocate General – which, unlike the final judgement, is not binding upon the Member State – before the final judgement was pronounced.
Sadly – yet unsurprisingly – this has not convinced the Home Office to abandon the ‘genuine residence’ test in the 2016 Regulations. On the contrary, they pushed the boundary even further and introduced a potentially retroactive requirement for the returning British citizen to reside in the UK as a qualified person in order for their family member to enjoy their right to reside. This in turn has been considered by many to be against the principle coined in Eind.
Finally, even though the ECJ stated explicitly in Akrich that as long as the residence and family relationship are genuine, it is of no importance whether Surinder Singh is being used to circumnavigate domestic immigration law, the 2016 Regulations adamantly state that they are not applicable ‘where the purpose of the residence in the EEA State was as a means for circumventing any immigration laws applying to non-EEA nationals to which [the family member] would otherwise be subject (such as any applicable requirement under the 1971 Act to have leave to enter or remain in the United Kingdom)’.
Of course, one could ask how come the UK has been able to get away with such obvious violations of EU law unchecked. The truth is that the only way Britain could be forced to put her legislation in line with ECJ/CJEU case law is through litigation. In principle, every court in the UK is bound to give effect to EU law and disregard any conflicting national provisions. However, this path is timely, costly, and much to the Home Office’s hopes, most people are not in the position to challenge their decisions effectively.
It is worth noting that any challenge brought in since the amended Regulations took effect, will have still been considered. The government being busy appearing tough in Brexit negotiations is also unlikely to suddenly take a U-turn on their interpretation of EU case law.
What is there then for an average Briton, returning from Spain with their Bosnian husband or from Germany with their Indian mother? Alas, for the sake of speediness and cost-efficiency, it is recommended they comply with the 2016 Regulations – at least for a time being. MLC Immigration Lawyers have a wealth of experience helping the returning British citizens’ family members pass all the stringent legal tests and make sure that upon their arrival they are issued with residence documentation. In the meantime, we keep following UK case law closely – in the hope that EU law is finally applied where it belongs.
Blog by Aleksander Bucholski, Immigration Lawyer
MLC Immigration Lawyers