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Courts foil Home Office attempt to hamstring Surinder Singh rights
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Courts foil Home Office attempt to hamstring Surinder Singh rights

The Court of Appeal in Secretary of State for the Home Department v Christy [2018] EWCA Civ 2378 has comprehensively rejected an argument by the Home Office seeking to limit the obligation to consider “Surinder Singh” applications by extended family members. Ben Collins QC appeared pro bono for Ms Christy.

Free Movement readers will likely be familiar with the Surinder Singh immigration route already. If not, you can read about it in this post. Essentially, it allows a British citizen returning from the continent to bring certain non-EU relatives into the UK as well, relying on more liberal EU rules on family migration.

An important recent development has been the Court of Justice of the European Union decision in Banger, which concluded that the Surinder Singh principles could apply to “extended family members”. That would include, for example, unmarried partners in a durable relationship.

Home Office attempts to get around the Banger decision

Ms Christy is a US national who had established a “durable relationship” with Mr Jones, a UK citizen, while the two lived in Poland. But Ms Christie did not rely on that status to reside in Poland. She had been granted a right to stay under Poland’s domestic immigration rules, independently of any right to reside under EU law.

This distinction formed the basis for the Home Office’s argument before the Court of Appeal: that there was no obligation on a member state to “facilitate” a Surinder Singh application in circumstances where the applicant had not been granted a right to reside in the EU member state where the relationship was formed and on the basis of that relationship.

It is important to note that to “facilitate” entry and residence primarily means to consider an application in these circumstances. A member state would still have discretion to refuse an application, following an extensive examination of the personal circumstances of the applicant. What the Home Office was seeking to argue in Ms Christy’s case was that there was no obligation to even consider an application.

Court of Appeal sees no good reason to limit Surinder Singh facilitation right

Lord Justice Sales (with whom Sharp LJ and Underhill LJ agreed) forensically demolished that argument, based on a close analysis of EU law and the relevant judgments. The core of the Surinder Singh principle is that an EU national, contemplating residence in another EU state and exercise of their free movement rights, might be discouraged from going if they believed that they would not be able to return to their home state with a spouse or partner they had developed or created a family relationship with whilst abroad. It could not be said that the hypothetical EU national’s attitude to this might differ depending on whether their family member would have a right to reside under EU law or domestic law in that state:

Mr Lask [for the Home Office] was unable to identify any coherent policy rationale why the derived right of facilitation sought to be relied on by Ms Christy in this case, on the authority of the Banger judgment, should be limited to cases in which the third country national who is the durable partner has in fact made an application to the immigration authorities of the relationship Member State relying on Article 3(2) of the Directive and has obtained an immigration decision from those authorities based on that provision. As I have said, there will be many cases where the third party national is lawfully in the relationship Member State by virtue of its ordinary domestic immigration rules, without having any need or occasion to make an application for residence relying upon the right of facilitation in Article 3(2), at the time when the durable relationship is created or strengthened.

Ms Christy’s case is one of these. It would be inconsistent with the rationale given by the CJEU for the derived right of facilitation, in particular at para. [28] in the Banger judgment, to deny the existence of a derived right of facilitation in such a case. To limit the derived right in this way would also mean it operated in an arbitrary manner which could never have been intended by the CJEU, since for the reasons given above it may be entirely adventitious whether the durable partner ever thought it necessary to rely on their rights under Article 3(2) or not.

It was of course important that the relationship was durable, and that the relocation of the EU national and the exercise of their treaty rights was genuine.

Sales LJ concluded with two important points for the Home Office to bear in mind:

  1. Even though an application to reside on the basis of the relationship in the host EU state was not a pre-requisite, the Home Office might legitimately consider the refusal of such an application to be a relevant but not determinative factor in a subsequent consideration by the Home Office.
  2. However, the absence of an application in the host member state for status under EU law based on the relationship could not be a relevant factor, given that it was not a pre-requisite.

A good day for freedom of movement

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The decision seems entirely sensible. It must be an extremely common scenario for a UK citizen to meet and form a relationship with a non-EU national living in the EU with their own independent right of residence. To impose a requirement that the non-EU national was granted a right of residence based on the relationship and invoking the Citizen’s Directive, even when they had their own right to reside under the relevant domestic law, would be unnecessarily obstructive.

This is all the more so given the wide variety of procedures, protocols and statuses in the different EU member states. Indeed in many cases it might not be possible to tell on what basis a right was granted, or whether a domestic right was favoured even if an EU law right existed.

Final thought: despite the Home Office’s willingness in this case to embark upon a complex and legal nuanced argument which seeks to limit the scope of Banger, it is yet to incorporate any reference to this important judgment in the relevant policy guidance.

 

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