Surinder Singh Immigration Rights and Case Law

Richard Loweth made this Freedom of Information request to Home Office This request has been closed to new correspondence. Contact us if you think it should be reopened.

The request was refused by Home Office.

Dear Home Office,

Is the Home Office aware of the judgement in the immigration case of Surinder Singh European Court C-370/90?

Is it aware of the questions put in the case?

That were concerned with what status should be afforded an British Citizen and his spouse returning to the UK from a third EU Memeber State and if that British Citizen should in fact be regarded IN THE SAME SITUATION AS THE NATIONAL OF ANOTHER MEMBER STATE.

In which at paragraph 13: "Mr Singh and the Commission submit that a national of a Member State who returns to establish himself in that State after having pursued an economic activity in another Member State is in the same situation as a national of another Member State who comes to establish himself in that country. In their view he must be treated in the same manner, in accordance with the prohibition of discrimination laid down in Article 7 of the Treaty, and he may therefore rely on Article 52 of the Treaty, particularly in relation to the right of residence of his spouse when the latter is not a national of a Member State".

And at paragraph 14 "The United Kingdom, on the other hand, submits that a Community national who returns to establish himself in his country of origin is not in a situation comparable to that of nationals of other Member States, because he enters and remains in that country by virtue not of Community law but of national law. Article 52 of the Treaty and Directive 73/148 are not therefore applicable to him".

And at paragraph 23 which in effect states that under the Surinder Singh case THE RIGHTS ENJOYED BY A BRITISH CITIZEN IN THAT CIRCUMSTANCE MUST BE AT LEAST THE SAME AS WOULD BE GRANTED TO HIM UNDER COMMUNITY LAW IF HIS OR HER SPOUSE CHOSE TO RESIDE IN ANOTHER MEMBER STATE?

Paragraph 23 stating: "However, this case is concerned not with a right under national law but with the rights of movement and establishment granted to a Community national by Articles 48 and 52 of the Treaty.

These rights cannot be fully effective if such a person may be deterred from exercising them by obstacles raised in his or her country of origin to the entry and residence of his or her spouse.

Accordingly, when a Community national who has availed himself or herself of those rights returns to his or her country of origin, his or her spouse must enjoy at least the same rights of entry and residence as would be granted to him or her under Community law if his or her spouse chose to enter and reside in another Member State.

Nevertheless, Articles 48 and 52 of the Treaty do not prevent Member States from applying to foreign spouses of their own nationals rules on entry and residence more favourable than those provided for by Community law".

What legal opinion has the Home Office received subsequent to that case of the effect of paragraph 23 and the "Operative Part" in judgement in the Surinder Singh case as below?

"Article 52 of the Treaty and Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services, properly construed, require a Member State to grant leave to enter and reside in its territory to the spouse, of whatever nationality, of a national of that State who has gone, with that spouse, to another Member State in order to work there as an employed person as envisaged by Article 48 of the Treaty and returns to establish himself or herself as envisaged by Article 52 of the Treaty in the State of which he or she is a national.

And in particular the last part of that "Operative Part" as noted here below?

A spouse must enjoy at least the same rights as would be granted to him or her under Community law if his or her spouse entered and resided in another Member State".

What advice (and what is that advice if it has been received) has the Home Office taken as to how the doctrine of case law in the case of Eind C-291/05 and the paragraph in the Eind case, paragraph 43 that means that subsequent cases can and do affect the rights that a British Citizen and his spouse using the Surinder Singh case to (as in paragraph 23 of that case: "...enjoy at least the same rights of entry and residence as would be granted to him or her under Community law if his or her spouse chose to enter and reside in another Member State"?

"According to settled case-law of the Court of Justice, secondary Community legislation on movement and residence cannot be interpreted restrictively (see, inter alia, in respect of Regulation No 1612/68, Case 267/83 Diatta [1985] ECR 567, paragraphs 16 and 17, and Case C-413/99 Baumbast and R [2002] ECR I-7091, paragraph 74)".

Is the Home Office aware of the case of Metock C-127/08 and how that case has declared that under the application of that case THAT CITIZENSHIP DIRECTIVE 2004/38 IMPOSES NO CONDITION THAT FAMILY MEMBERS CAN ONLY JOIN ON FIRST ENTRY IF THEY ALREADY RESIDENT WITHIN THE EUROPEAN UNION?

What advice (and what is that advice if it has been received) has the Home Office taken as to how the doctrine of case law in the case of Metock C-127/08 affect the rights that a British Citizen and his spouse using the Surinder Singh case to (as in paragraph 23 of that case): "...enjoy at least the same rights of entry and residence as would be granted to him or her under Community law if his or her spouse chose to enter and reside in another Member State"?

What legal opinion has the Home Office received (and what is that opinion) to suggest that the words in paragraph 23 of Surinder Singh: "...enjoy at least the same rights of entry and residence as would be granted to him or her under Community law if his or her spouse chose to enter and reside in another Member State" mean something other than what they say?

I now refer to the UKBA document "European Economic Area (EEA) and Swiss Nationals: Free Movement Rights" V 7.0 valid from 15 February 2013.

On what basis does the Home Office believe that the doctrine of case law and the Metock case therefore does not render for a British Citizen, and his spouse, using the Surinder Singh case the requirement to have been living together in the EEA country before returning to the UK?

This is requirement being stated by the Home Office on page 34 and page 37 of the document EEA and Swiss National: Free Movement Rights V 7.0 valid from 15 February 2013?

On what legal basis does the Home Office still believe that the doctrine of case law and in particular the Metock case does not render it now illegal for the UKBA to require a spouse residence requirement where on "at least the same rights of entry and residence as would be granted to him or her under Community law" a British Citizen seeks to exercise his Surinder Singh rights in relation to him and his non-resident in the EU non-EU spouse?

Yours faithfully,

Richard Loweth

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Freedom Of Information Team ( IND ), Home Office

Dear Richard Loweth

Re:26550 Surinder Singh Immigration Rights and Case Law

Thank you for your recent e mail concerning the above matter. We are dealing with your enquiry and will respond shortly.

Kind Regards

UKBA
FOI Team

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European Operational Policy Enquiries, Home Office

1 Attachment

Dear Mr. Loweth,

Thank you for your email dated 23 February in which you made a request for information under the Freedom of Information Act 2000. Please see attached for the UK Border Agency response to your request.

Yours sincerely,

European Operational Policy Team
UK Border Agency

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Dear Home Office,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Home Office's handling of my FOI request 'Surinder Singh Immigration Rights and Case Law'.

That the UKBA may have grounds to refuse the actual content of their legal advice may be debatable.

However I see no reason why they have refused the actual CONCLUSION that that legal advice came to in the matter of whether Surinder Singh is now modified by Metock.

That they have refused the request leads to the conclusion that the UKBA legal advice in fact supports my position that Surinder Singh MUST be now taken in conjunction with Metock and that a British Citizen returning to the UK from an EU Country must (as per Surinder Singh) enjoy the same rights with his spouse as any other EU Citizen and that, further, those rights must be the same as now clarified by Metock.

That it is now no longer lawful for the UK to require that the spouse be resdient in that, or indeed any other, EU Country.

As stated by Metock.

Therefore I ask that this request be reviewed as to bot he refusal to give both the content of the leal advice and also the conclusion made by that legal advice.

A full history of my FOI request and all correspondence is available on the Internet at this address:
http://www.whatdotheyknow.com/request/su...

Yours faithfully,

Richard Loweth

FOI Requests, Home Office

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FOI Requests, Home Office

Richard Loweth

 

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FOI Requests

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FOI Requests, Home Office

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Richard Loweth

 

Thank you for contacting the Home Office and please see attached response

 

thank you

 

FOI Requests

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Alan Damper left an annotation ()

This is a totally unacceptable situation. There is an understandable case for not disclosing actual advice, but to deny access to a conclusion or even to disclose whether advice has been sought is a dereliction of their duty to operate immigration policy.

Metock is a ruling that must be incorporated into the Immigration Rules' as it affects Surinder Singh. How on earth can anyone with a spouse outside the EU at present know if that person needs to be resident in an EU state before entry is allowed? Just why can't the Home Office state it's position in the rules?