R (Secretary of State for the Home Department) v Immigration Appeal Tribunal and Surinder Singh

R (Secretary of State for the Home Department) v Immigration Appeal Tribunal and Surinder Singh [1992] 3 CMLR 358 is a UK immigration law and EU law case involving the right of entry and residence into a nation state.

Facts

Singh was a British citizen. He had married an Indian citizen who was then living in India. He wanted her to live with him in the UK. He was unable to satisfy the domestic UK immigration requirements to sponsor a visa for his foreign spouse. He then decided to make use of EU free movement rules to solve this problem. Under EU law [today, Art 3(1) of the Citizens' Rights Directive], a Union citizen has the right to move to a Member State other than that of his nationality, and has the right to bring certain family members, including his non-EU national spouse, with him when he does so. Singh therefore moved to Germany temporarily, and his spouse was granted a German residence permit. The couple then sought to move to the UK, arguing that Mrs Singh had a retained right of residence in the EU stemming from her status as the spouse of an EU citizen returning from another Member State to his Member State of nationality.

Judgment

It was held that Mrs Singh had a retained right of residence and accordingly had to be admitted to the UK under EU free movement rules. It did not matter that Mr Singh had expressly moved to Germany for the purpose of getting a visa for Mrs Singh: he was entitled to do so under EU law and this did not amount to an abuse of process.

Significance

This case established a precedent for British citizens to secure UK immigration rights for their non-European spouses, who are unable to join their partners because of several changes in UK immigration law aimed at reducing net migration. Through EU Regulations on Free Movement of Peoples, it provides a window of opportunity to reunite UK citizens with their spouses in the increasing number of cases where the new rules on income and other additional measures mean that such spouses of UK citizens would otherwise be separated by the requirements of increasingly strict visa controls.

The Surinder Singh route involves living and working elsewhere in the European Economic Area for a period of three or more months (there is no actual time period required by EU law but instead it is based on previous case law and its application) and then asserting the rights associated with EEA citizenship and free movement to gain access to their own country while being covered by European law.[1]

In so doing, the Surinder Singh route triggers European rights of free movement that have otherwise been removed from UK citizens by UK legislation.

In principle, the Surinder Singh route applies to all EU citizens, not just UK citizens. For example, a French husband could bring his Mexican wife into France by exercising his treaty rights in Spain. It also applies to qualifying dependent family members as well as spouses.

There are several petitions circulating throughout the UK and to expats abroad that are asking people to fight this recent "government clarification" and an example is 'British people want equal rights to bring their family to the UK ' on government petition website.[2][3]

See also

The Upper Tribunal of the Asylum and Immigration Tribunal, comprising Immigration Judges Mr Haddon-Cave, J, and Mr Kopieczek have ruled that the Surinder Singh principles apply to unmarried partners (and by analogy, other members of a British returning worker's "extended family")- Kamila Santos Campelo Cain v Secretary of State for the Home Department[4] (IA/40868/2013).

Notes

  1. ↑ Catrin Nye (25 June 2013). "The Britons leaving the UK to get their relatives in". BBC News.
  2. ↑ "Aliens: EC rights -- R v Immigration Appeal Tribunal and Surinder Singh ex p Secretary of State for the Home Department". UK Law Gazette. 2 June 1993.
  3. ↑ Ying Hui Tan (17 July 1992). "Law Report: Spouse entitled to residence under Community law: Regina v Immigration Appeal Tribunal, Ex parte Secretary of State for the Home Department - European Court of Justice, Luxembourg, 7 July 1992". The Independent.
  4. ↑ http://uk-immigration-blog.com/2014/10/21/judges-thwart-uk-governments-attempts-to-make-british-second-class-citizens-surinder-singh-applied-to-extended-family/
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