Returning to the UK, Singh, mother?

[Ben]

Quick question folks,

With regards to the ECJ ruling on Singh, is it correct that only the spouse is entitled to return to the UK with the British citizen and be treated under EC law?

What about other family members, such as the mother of the British citizen (who herself has Pakistani nationality), who was a member of the British citizen's household in the country from which he has come (Ireland)?

Basically, a friend of mine has received a refusal letter from the UKBA, in respect of an EEA2 application for his mother. The refusal is because the applicant is the mother and not the spouse of the British citizen. They are quoting GC (China) v SSHD [2008] in the refusal.

[Obie]

That decision in theory is clearly incorrect. In Eind , the Judge states.

32 As was rightly pointed out by the Advocate General in points 101 to 106 of his Opinion, the right of the migrant worker to return and reside in the Member State of which he is a national, after being gainfully employed in another Member State, is conferred by Community law, to the extent necessary to ensure the useful effect of the right to free movement for workers under Article 39 EC and the provisions adopted to give effect to that right, such as those laid down in Regulation No 1612/68. That interpretation is substantiated by the introduction of the status of citizen of the Union, which is intended to be the fundamental status of nationals of the Member States.

I know a friend of mine who has the same problem. He lived with his Brother in the Netherlands and held a Residence Permit, but the British Authorities are refusing him residence on the grounds that he is not a spouse or Civil Partner, and that Regulation 8 does not apply to him.

This cannot be further from the truth of the Singh ruling, which states that a national has rights under Article 48 or 52 of the Treaty, now Article 39 and 43 respectively.

Therefore all the provisions provided for in Article 40 and 44 of the EC treaty to implements the rights conferred on them Article 48 and 52 applies to them.

I can't understand why the UKBA is behaving in such a lawless manner.

The caselaw you citated is right, as the Spouse had never lived with the EEA national in another member state, so there is no link with him and any of the community provisions.

[Ben]

Thank you Obie.

Nothing concrete though.

What I am trying to establish is, does the fact that the family member referred to in the case of Singh is the spouse of an EU national, cause to exclude family members who are not the spouse of an EU national, in the precedent set by this ruling?

[Obie]

No it doesn't. If it does, then you would have a three tier community law system.

1. An EU national who moves to another country besides, his or her own, who would easily be covered.

2. An EU national who returns back home after having exercised an economic activity in a member state, who will be partially covered.

3. An EU national, who hasn't exercised the right to move, who falls in the Purely internal matter, which is outside the scope of community law.

In the eyes of the EU, it is either you fall into one of the first two, in which case you are fully covered by the treaty and all the provision adopted to implement it (Directive 2004/38EC) or you fall into the last category, which is dealt with by national immigration rules.

The UK principal will be contrary to Citizen of the Union, which guarantee the same treatment in law regardless of one's nationality.

The court in Singh was giving a specific answer to a specific question. It doesn't mean the principal doesn't apply to other situation Mutatis Mutandis.

Also in Paragraph 19 of the judgement, the judge states that the conditions of entry and resident of the EU national who is returning home should be at least equivalent to that which he or she would receive in the territory of another member state.

Therefore, in light of all the above, the UK's refusal and restrictive interpretation is contrary to the principle of community law, and illegal.

If people are in any doubt as to the scope of Singh, you should read the content of Eind, which leave no doubt in one's mind that the scope is extensive, and puts the returning national in the sme position as an EU national seeks first entry into a member state. In fact the ruling makes that right much easier, by stating they don't even need to be working for their non-EU family membners to qualify.

The significiance in the judgement is the statement that the EU national has rights under Article 52 to return to the memberstate of her origin.

With that right, you can claim any community law provision.

You friend's case will survive on the face of UK law, without the need of dissecting the Singh or Eind ruling.

The UK regulation nine says, family members of Uk national, and not Spouse and Civil partner of British National.

Regulation 7 Defines Family members, which includes Dependant Relative in the Ascending line.

Therefore if your friend can show, mum was dependant on him, he is covered without any course to complain in Regulation 9.

It is people in Regulation 8(other Family Members) that might need to fight the UK in court, with their narrow interpretation.

[Ben]

You friend's case will survive on the face of UK law, without the need of dissecting the Singh or Eind ruling.

The UK regulation nine says, family members of Uk national, and not Spouse and Civil partner of British National.

Regulation 7 Defines Family members, which includes Dependant Relative in the Ascending line.

Therefore if your friend can show, mum was dependant on him, he is covered without any course to complain in Regulation 9.

Thank you Obie.

However, is it possible that "family member" in §9 of the EEA Regulations is repealed and replaced with "spouse", following GC (China) v SSHD [2008] which says, "Regulation 9 only grants EEA nationality rights to the spouse of a UK national who has returned here from another EEA state where they were living together"?

I.E., does GC (China) v SSHD [2008] cause §9 of the EEA Regulations to read:

9.—(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who
is the spouse of a United Kingdom national as if the United Kingdom national were an
EEA national.
(2) The conditions are that—
(a) the United Kingdom national is residing in an EEA State as a worker or self-employed
person or was so residing before returning to the United Kingdom; and
(b) the spouse of the United Kingdom national (his spouse or civil partner), the
parties are living together in the EEA State or had entered into the marriage or civil
partnership and were living together in that State before the United Kingdom national
returned to the United Kingdom.
(3) Where these Regulations apply to the spouse of a United Kingdom national the
United Kingdom national shall be treated as holding a valid passport issued by an EEA State for
the purpose of the application of regulation 13 to that spouse.

instead of:

9.—(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who
is the family member of a United Kingdom national as if the United Kingdom national were an
EEA national.
(2) The conditions are that—
(a) the United Kingdom national is residing in an EEA State as a worker or self-employed
person or was so residing before returning to the United Kingdom; and
(b) if the family member of the United Kingdom national is his spouse or civil partner, the
parties are living together in the EEA State or had entered into the marriage or civil
partnership and were living together in that State before the United Kingdom national
returned to the United Kingdom.
(3) Where these Regulations apply to the family member of a United Kingdom national the
United Kingdom national shall be treated as holding a valid passport issued by an EEA State for
the purpose of the application of regulation 13 to that family member.

?

[Wanderer]

No it doesn't. If it does, then you would have a three tier community law system.

1. An EU national who moves to another country besides, his or her own, who would easily be covered.

2. An EU national who returns back home after having exercised an economic activity in a member state, who will be partially covered.

3. An EU national, who hasn't exercised the right to move, who falls in the Purely internal matter, which is outside the scope of community law.

In the eyes of the EU, it is either you fall into one of the first two, in which case you are fully covered by the treaty and all the provision adopted to implement it (Directive 2004/38EC) or you fall into the last category, which is dealt with by national immigration rules.

The UK principal will be contrary to Citizen of the Union, which guarantee the same treatment in law regardless of one's nationality.

The court in Singh was giving a specific answer to a specific question. It doesn't mean the principal doesn't apply to other situation Mutatis Mutandis.

Also in Paragraph 19 of the judgement, the judge states that the conditions of entry and resident of the EU national who is returning home should be at least equivalent to that which he or she would receive in the territory of another member state.

Therefore, in light of all the above, the UK's refusal and restrictive interpretation is contrary to the principle of community law, and illegal.

If people are in any doubt as to the scope of Singh, you should read the content of Eind, which leave no doubt in one's mind that the scope is extensive, and puts the returning national in the sme position as an EU national seeks first entry into a member state. In fact the ruling makes that right much easier, by stating they don't even need to be working for their non-EU family membners to qualify.

The significiance in the judgement is the statement that the EU national has rights under Article 52 to return to the memberstate of her origin.

With that right, you can claim any community law provision.

You friend's case will survive on the face of UK law, without the need of dissecting the Singh or Eind ruling.

The UK regulation nine says, family members of Uk national, and not Spouse and Civil partner of British National.

Regulation 7 Defines Family members, which includes Dependant Relative in the Ascending line.

Therefore if your friend can show, mum was dependant on him, he is covered without any course to complain in Regulation 9.

It is people in Regulation 8(other Family Members) that might need to fight the UK in court, with their narrow interpretation.

[Obie]

I think that judgement deals with something completely different.

That man was hoping to benefit from the free movement rights, when he had never lived in another member state with the wife, on whom he is depending.

Their is nothing linking him to two EU country, and the wife could not have been deterred from going to Ireland, on the basis that he will not be able to return to the UK with the husband, when he never left the UK, he was undocumented, and held such status in the UK before his wife left and returned.

That judgement does not change anything in Singh, and the scope has not been changed. What changed the scope of singh and make it much clearer is the Eind Judgement, which was more detailed and gives a clear picture of what the EU judges are thinking.

Regulation 9 has not been touched, therefore in all respect it remains the same.

The bottom line is a returning national is covered by the directive in its entirety.

People don't qualify for residence card based on Regulation 9 or only it. Regulation 9 simply states that people who meets it conditions will be qualified for a Residence card, or would have a successful appeal under it.

The Directive has direct effect, which can be applied directly in court if the UK fail in the process of transposition.

As things stand, that woman is qualified.

If the UK insist she isn't and refuse a right of appeal, then a JR claim could be made on them, which i don't them they will have the appetite to pursue.

[Ben]

I think that judgement deals with something completely different.

Indeed it does, but it didn't stop the UKBA referring to a small part of a single sentence in it, and using this as the sole reason to refuse my friend's mother's application for a Residence Card.

I believe the UKBA took that quote and used it out of context intentionally, as an excuse to refuse the application.

My friend submitted an appeal anyway, or rather his mother did. But what are they going to say? "Oh yes, you're quite right. The officer did indeed pluck that text and used it out of context, purely so as not to grant the Residence Card. How naughty. We'll overrule it.". Somehow, I can't see that happening. Or can it?

[Obie]

It can be overruled in court for sure. The UKBA is just testing people's tenacity to fight, thats all.

EU court ruling in any case supersedes any Court of appeal or Supreme court ruling in the UK.


Since there has not been any ammendment to their guidance or legislation, caseworker cannot quote a Court of Appeal ruling as a basis for refusal. The governement has to study the ruling and make necessary legislative ammendment, without that, the rules in play remains.

The statement only says the appealant representative, concedes that Regulations 9 only apply Eu citizenship right to the Spouse of a British Citizen who has lived with the British citizen in another EU state.
That is not a statement of the court, or the court specifying who the different beneficiary of Regulation 9 is.

Besides, this seems contrary to the guidance issued by the government.

5.5. Non-EEA family members of British Citizens (Surinder Singh ruling)
A third country national who is the spouse / civil partner / partner or other family member of a British citizen can be availed by European law if they have resided with the British citizen in another Member state, and the British citizen was either employed or self-employed in the other Member state, prior to travelling to the U.K.

[Ben]

Interesting reply from the UKBA here:

My question:

Dear UK Border Agency,

This request for information is made in accordance with the Freedom
of Information Act.

In ECJ Case C-370/90 (Surinder Singh), the court ruled that a
citizen of the Union, having pursued economic activity in the
territory of another Member State, has the right to be treated as
an EEA national upon his return to his state of citizenship, and
his family members have the right to be treated as family members
of an EEA national for the purpose of European Union Directive
2004/38/EC and national transposition.

In Case C-370/90, the family member of Surinder Singh was his
spouse. However, it is widely accepted by the Member States of the
European Union, the United Kingdom included, that this does not
cause to exclude family members who are not the spouse of the Union
citizen, in the precedent set by this judgement.

For example, there are several instances in the UKBA European
Casework Instructions which refer to "Singh" applications, where
the applicant may be the spouse or other family member of a
returning UK national. I refer specifically to § 1.3 of Chapter 1,
§ 2.5.1 and § 3.2 of Chapter 2, § 5.5 of Chapter 5 and to § 3.11 of
Chapter 9. The UKBA European Casework Instructions are available
for download at this link:
http://www.bia.homeoffice.gov.uk/siteco ... dlaw/ecis/

The information I require from the UKBA is as follows:

Whilst the UKBA European Casework Instructions correctly refer to
the rights of family members of a returning UK national, are there
any circumstances in which the UKBA may refuse to recognise the
right of a family member of a returning UK national if that family
member is not the spouse of a returning UK national (for example,
if the family member is a child of a returning UK national or is a
dependent direct relative in the ascending line of a returning UK
national)?

Thank you.

Yours faithfully,

Benjamin Wilson.

Their reply:

Dear Mr Wilson

Thank you for your email of the 12 April 2010 to the UK Border Agency
requesting information regarding the implementation of the "Surinder
Singh" Ruling. Although you have requested information under the terms
of the Freedom of Information Act, it has been decided that we can
respond routinely and here is our response.

The terms of the Surinder Singh judgement you refer to have been
incorporated into domestic legislation as regulation 9 of the
Immigration (European Economic Area) Regulations 2006. As you will be
aware, the provisions in this regulation are not confined to just
spouses and civil partners. The wording of the regulation confirms it
applies to 'family members of a United Kingdom national'. Family members
in the European context are defined by regulation 7 of the EEA
regulations.

In terms of situations where it would be appropriate to refuse an
application made under regulation 9, the criteria to be met are detailed
in Chapter 5, section 5.5 of the European Casework Instructions which is
available from the UKBA website. Where the relevant criteria are not
met, then any such application is likely to be refused. Equally, as is
common throughout the EEA regime refusals can also be based where
appropriate on the basis of public policy, security or health.

Regards

Isra Hussain
Freedom Of Information Team
UKBA

I think friends, that nails it.

[Obie]

I was in no doubt that the refusal will not hold up in court, even by UKBA's standards.

The problem is Article 3(2) family members, who may have lived with the UK national in another memberstate and have received a Residence Card of family members of Union Citizen in another member state.

The directive will not be complete, if UK nationals in that situation, were precluded from that provision.

Article 12 precludes discrimination on ground of Nationality, within the scope of the Treaty and the provisions adopted to give it effect.

Therefore if a UK national has rights under Article 39, 0r 43 to enter the UK, he or she must be placed in the same situation as nationals from other EU states who come to establish themselves in the UK.

This is exactly the essence of the Singh judgement. It just uses that principal to answer the question of the referring court.

[Ben]

Update:

A hearing has been called, not sure when for.

Why would they request a hearing for this type of case I wonder? Surely they know straight away that the fella who refused the application was chancing his arm..

[Ben]

Update:

The hearing was yesterday. The UKBA withdraw their decision to refuse the residence card for the reasons stated pre-hearing (so the hearing never went ahead).

What happens now?

Could the UKBA attempt to now refuse the residence card for another reason? Or does the very fact that they have withdrawn their decision to refuse the residence card for the reasons stated cause to suggest that the residence card will be issued?