Upper Tribunal Warning to Legal Practitioners On Wider Applicability Of Surinder Singh Principles:With Doubt Cast On Co- Existence With Citizen’s Directive/ 2006 EEA Regulations

On 6 November 2015, the  Upper Tribunal notified their decision in Osoro ( Surinder Singh) [2015] UKUT 593 (IAC). They  concluded their  decision with observations  seeming to cast strong  doubt upon  the continuing  effectiveness  of Surinder Singh following  the coming into force of the EEA Regulations. Having raised  doubt  as to  the co-  existence of Surinder Singh with the Regulations, the Upper Tribunal  regrettably did not  take it upon  themselves to  answer the very  questions they had  unilaterally  raised. To top it all , there is an equally strong warning from the Upper Tribunal   to legal practitioners  and Judges to take care in considering what was actually decided in Surinder Singh. It seems  we do not appear to be understanding the ratio decidendi, in that judgement.  The  Appellant and Sponsor  in Osoro however appears  to  have been legally unassisted and  as such  the warning to legal practitioners might  perhaps have awaited  adjudication  upon a specific and appropriate  case both where  an appellant  was legally represented  and  where the raised issues could have been  fully ventilated   in relation to the  questions the Upper  Tribunal  have  regrettably deferred  to a  future case.

OSORO(SURINDER SINGH) ) [2015] UKUT 593 (IAC)

The question of law raised by the appeal concerned the ambit of the decision of the  ECJ in the case of R v Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department (Case C-370/90); [1992] ECR I-04265.

The facts:

The Appellant was a national of Kenya, aged 29 years. His application for a residence card  was dated 15 March 2014.  The Upper Tribunal observed that in  his application form, the Appellant  was required to provide particulars of his EEA national family member., who was his uncle, a   British national born in 1975. The Appellant  had been living with his uncle  and his family in London since 1996, when he was aged around eight and he had thus been a member of his uncle’s household ever since.  His uncle and his wife went to Belgium in mid-2013, returned  to the family home in London in December 2013  as the employment period which materialised was unexpectedly short. The Appellant  did not accompany his uncle and aunt to Belgium but remained in the family home in London.

The Applicant submitted an application dated 15 March 2014 for  a residence card and competed Section 5 of the application form, entitled “Surinder Singh Cases”.  In completing this section, the Appellant submitted that the British citizen family member (his uncle) had exercised Treaty rights as a worker in another EEA member state, Belgium; that the  appellant was the family member of the British citizen (his uncle) during such period.; that the  appellant did not reside with his uncle during such period; that his uncle worked in Belgium between 01 July and 15 November 2013, returning to the United Kingdom on 19 December 2013.

Refusal Decision and Appeal:

 The Home Office refused the application for the residence card on 30 April 2014. The Upper Tribunal   observed subsequently  that  the decision maker viewed the Appellant’s application exclusively through the lens of the EEA regulations and that notwithstanding the invitation in the Secretary of State’s application form to seek a residence card under the “Surinder Singh” route, there was no mention of this decision and no recognition of any such route in the decision.

The Secretary of State refused the application on the basis that the  Appellant’s uncle was  a British citizen and not an EEA national as claimed. The Appellant  was considered   to have no basis of application under the EEA Regulations as he had failed to provide evidence that  he was the family member of an EEA national.  In addition to the above, it was  noted that the Appellant  had  failed to provide any evidence of his dependency and/or residence with  his  sponsor prior to entering the United Kingdom pursuant to regulation 8(2)(a).  The Appellant’s application  was  therefore refused under Regulation 8(2)  as it was considered  that   that he had  not provided evidence that  he was  the relative of an EEA national.

The Appellant appealed the refusal decision  however the appeal was dismissed   by the First Tier Tribunal.  The Appellant  applied for permission to appeal the Tribunal’s decision. The decision of  the First Tier Tribunal was observed to  contain only a fleeting reference to the decision of the ECJ in Surinder Singh.  While the Judge recorded that the Appellant’s application was made on the basis of this decision, there was  no consideration of or engagement with the decision itself.  Permission to appeal to the Upper Tribunal was granted on the basis that ” It is arguable that the [FtT] erred in concluding that the decision in Surinder Singh was not applicable to the facts of this case and/or that its application was limited to cases where an appellant is a family member (as defined) of a British citizen.

The Upper Tribunal observed that  the “Surinder Singh” section of the Form required that the Applicant provide evidence to show that he resided in the EEA member state at a time when his  family member was exercising Treaty rights in that EEA member state. It was noted no such evidence was provided by the Appellant. Appended to his application were various materials, including his passport, his birth certificate and the Belgium identity card of his uncle. There was also a species of certification from the Kenya Ministry of Interior describing the relationship between the Appellant and the British citizen as nephew/uncle and representing that they lived together in London.

Consideration by  the Upper Tribunal:

 Apart from considering the facts and principles arising out of Surinder Singh, the Upper Tribunal  also  observed that  there had been some evolution in the case law of the ECJ since Surinder Singh was decided. In Akrich, (Case C-109/01); [2003] ECRI – 9607, the ECJ made clear that the right identified in Surinder Singh arises where the national concerned returns to his Member State of origin in either an employed or self employed capacity. The focus is on re-entry to the EU citizen’s Member State, rather than departure therefrom. The concept of deterrence, or discouragement, features strongly in the Court’s judgment.

It was also noted that the Citizens Directive (2004/38) governed the exercise of movement between and residence within the territories of Member States by EU citizens and their family members. The Directive is not constitutive of the rights of movement and residence. Such rights are conferred by primary EU legislation.

The Upper Tribunal stated that where an EU citizen has, pursuant to and in conformity with the provisions of the Directive relating to a right of residence for a period exceeding three months, genuinely resided in another Member State and, during such period, a family life has been created and/or fortified, the effectiveness of Article 51 TFEU requires that the citizen’s family life in the host Member State continue upon returning to his Member State of origin. In such cases, the third-country national who is a member of the EU citizen’s family may qualify for the grant of a derived right of residence. An essential prerequisite is that the third-country national must have had the status of family member of the EU citizen during at least part of the period of residence in the host (or second) Member State.

The Questions posed by the Upper Tribunal and left Unanswered:

Having stated that the measure of domestic law which implements the Citizens Directive in the United Kingdom is the EEA Regulations, the Upper Tribunal noted that it was instructive to reflect on the question of whether the decision in Surinder Singh survives the advent of the Directive and the Regulations. The Tribunal said that since these measures apply only to those who are in the territory of a Member State other than that of their nationality, the decision in Surinder Singh, which focuses on the second element of the matrix viz the return of the Union citizen from the host Member State to the Member State of which the citizen is a national, is of no import. However, it was stated that the decision would appear to have some continuing impact in the context of the application of the primary Treaty provisions. The Upper Tribunal however stated that the issue did not generate any argument before them  and  that it was best reserved for consideration in a suitable future case.

The Upper Tribunal’s Decision:

The Tribunal noted that Regulation 9 of the EEA regulations,  is concerned with the conferral of rights of ” family members” of British citizens.

It had been argued before the First Tier Tribunal that the Appellant qualified for a residence card under regulation 9 of the EEA Regulations and that the Secretary of State had erred in law in considering, and refusing, the application under Regulation 8. The Upper Tribunal considered  that the First Tier Tribunal had been correct in deciding that the Appellant did not fall within the scope of Regulation 8 because his uncle was  a United Kingdom national by virtue of the definitions contained in Regulation 2. Further and in any event, the Appellant was  unable to satisfy any of the disjunctive requirements enshrined in Regulation 8(2)(a), (b) and (c) or (3), (4) or (5). The Appellant did  not fall within the scope of Regulation 9 since he did not satisfy any of the other relationships or other requirements in Regulation 7.

The Appellant’s case was considered to  be  confined to the single proposition that he qualified for the grant of residence in the United Kingdom pursuant to the decision in Surinder Singh. The Upper Tribunal   stated that the EU citizen concerned, his uncle, made the two movements in question viz from the United Kingdom to another EU Member State and, some months later, the reverse, without the Appellant. The EU citizen in the matrix exercised and enjoyed his Treaty rights fully and without interference of any kind. Nor was  there any element of discriminatory treatment. In short, the principles of efficacious enjoyment of Treaty rights and non-discrimination, the twin cornerstones of the decision in Surinder Singh,  were fully satisfied.

The Upper Tribunal found find no error of law in the decision of the First Tier Tribunal  and dimissed the Appellant’s appeal.

The Warning By the Upper Tribunal:

“25.We would add, finally, that the linguistic formulation ” the principle in Surinder Singh” requires particular care and circumspection on the part of both practitioners and judges in their consideration of what was actually decided in Surinder Singh, which was a fact sensitive case decided by the CJEU by resort to the free movement provisions of primary Community law. The case was decided accordingly and its rationale, or ratio decidendi, has the twofold doctrinal components of the principle of efficacious enjoyment of Community law rights and the principle of non-discrimination. These are the two principles which demand attention in any given context. It is not clear to us that Surinder Singh is authority for some principle of wider application. In law, discipline is everything”.

 CONSIDERATIONS

 Artificial Consideration of the Residence Card Application by the Secretary of State:

In the first place, the Secretary of State   artificially  chose to  consider   the Appellants’ application only under Regulation  8 ( as from an extended family member of an  EEA national)  and concluded  that  he   had not met the requirements as  his uncle was a British national rather than an EEA national.  It  seems from the  Upper Tribunal’s judgement that  no consideration at all was had to paragraph 9  of the Regulations( and Surinder  Singh)  in the refusal decision. It may be thought that  as it was clear that  the Appellant was not a  direct family member of an EEA national then  no regard should have been paid  at all  to the applicability of Regulation 9 in the refusal decision.  Clearly, the application  having made by reference to Regulation 9, Surinder  Singh, the  Secretary of State should have considered  first of all whether or not   the Appellant met   Regulation 9  and  where the application was to be refused, should have  provided  reasons  for the decision and then gone on to consider the applicability  of  Regulation  9, Surinder Singh.

Requirements within an EEA Application Form not a Prerequisite as No Need to Complete An EEA application  form:

At paragraph   4 of  their decision, the Upper Tribunal in Osoro observe that , the “Surinder Singh” section of the Form requires that an applicant  “must provide evidence  to show  that they resided in the EEA member state at a time when their  family member was  exercising Treaty rights in that EEA member state.

It is surprising that the Upper Tribunal only had regard  to what an EEA  application form required to decide a legal evidential  point when it is  clear  that there is no obligation to complete an application form  in an EEA application.

Home Office Guidance, “ Direct family members of European Economic Area (EEA)  nationals – v3.0  published on 29 September 2015”, states, Direct family members do not have  to apply for documentation using one of the EEA applications forms. You can accept a letter  asking to be  considered under  European law. You must not reject an application because an  application form  has not been used or fully  completed”.

Home Office Guidance “ Extended family members of European Economic Area (EEA)  nationals – v2.0 Valid from 7 April 2015 also states,” It is not compulsory to complete an application form but  extended family members can apply for a document using the following forms…..”

This therefore begs the question, had  the application form not been  completed  by  the  Appellant  and  reliance only placed upon written submissions, would the Upper Tribunal still have been justified in referring solely  to the requirements in a home office EEA application form in considering an EEA appeal?

Is it only the family member spouse/ civil partner that is  required to live with the British  national in the other  EEA Member State?:

Where the Appellant had been a direct family member, perhaps  the Upper Tribunal would not have made the observations they  made  and if so,  then  the effect of their statements can be  construed as  wishing to serve as a deterrent to even  wider  and “remote”  extended family members seeking  to  rely upon Surinder Singh  principles.

Even if the Appellant is not to be viewed as a direct family member, a question arises  having regard to the actual wording in Regulation 9 whether  it is only spouses  or civil  partners that are required to have resided with the British national in the EEA state.

Regulation 9 of the EEA Regulations provides:

9.-” Family members of British citizens

(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a British citizen as if the British citizen (“P”) were an EEA national.

(2) The conditions are that-”

(a) P is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom;

(b) if the family member of P is P’s 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 the EEA State before the British citizen returned to the United Kingdom; and

(c) the centre of P’s life has transferred to the EEA State where P resided as a worker or self-employed person…….”

Surely Regulation 9 upon its proper reading  requires that only   the  family member spouse or civil partner must  have resided with  the British citizen in the EEA  state and not any other  family members such as parents or grandparents?  Where that is indeed correct as a matter of law, the Upper Tribunal should have made this clear in their  interpretation of Regulation 9 regardless  of whether  or not the Appellant in Osoro was to succeed in his claim.

 But Doesn’t Regulation 9 Codify Surinder  Singh ?:

The Upper Tribunal also concluded at paragraph 18 of their  decision that neither the First  Tier Tribunal nor the Upper  Tribunal received any argument on the question of the “enduring impact” of the decision in Surinder Singh in the wake of the Citizens Directive and EEA Regulations.  The Upper Tribunal observes  that while it is at least conceivable that the decision will continue to apply in context where the applicant’s case is based on resort to primary Treaty provisions,  they  reserved  questions such as these to an appropriate future case.

Having raised   these  issues, for the sake of certainty, surely  the Upper Tribunal  should  have sought  to  decide the question they  had raised themselves?  As matters stand,  their inchoate decision  may leave future applicants in a state of  some uncertain  hesitation as regards  how following this decision  the  Home Office may decide   Surinder  Singh applications  generally or  if the application  is refused, whether  the First Tier Tribunal will follow  the Upper Tribunal’s  lead in seeking to  cast doubt upon the continuing legal effectiveness of Surinder   Singh and  narrow the applicability of Surinder Singh  even more.

Was there a real need for the Upper Tribunal to  seek to  question  the  enduring  impact  of Surinder Singh   in the awake of the EEA Regulations?  No  preliminary regard was paid  to Home Office policy Guidance as regards  the Home Office’s  own current take of  how Surinder Singh  sits with Regulation 9.

Home Office Guidance Direct family members of European Economic Area (EEA) nationals – v3.0, published on 29 September 2015” states:

Non-EEA national family members of British citizens (Surinder Singh cases)

This page tells you about British citizens who have exercised free movement rights as a worker or self employed person in another member state and are accompanied by their non-European Economic Area (EEA) national family members when they return to the UK.

Under regulation 9 of the Immigration (EEA) Regulations 2006 (the Regulations) a non-EEA national who is the spouse or civil partner or other direct family member of a British citizen may have rights under European law if certain conditions are met.

This is in line with the Court of Justice of the European Union (ECJ) judgment in the case of Surinder Singh (C370-90). For further information on the judgment, see related link: ECJ cases of Surinder Singh and Eind.

For the family member of a British citizen to have a right of admission and residence under the regulations, the following conditions must be met:

  • the British citizen exercised free movement rights as a worker or self-employed person in another EEA member state
  • the family member is the spouse or civil partner of the British citizen and they:
  • are living together in the EEA state
  • entered into the marriage or civil partnership and were living together in the EEA state
  •  the British citizen had transferred the centre of their life to the EEA state where they were residing as a worker or self-employed person

 If the conditions above are met, the family member of the British citizen will be treated as the family member of an EEA national for the purposes of the regulations”.

Further the Home Office have issued a Notice,  “Regulation 9 (Surinder Singh Cases) 01 January 2014, 02/2014currently on the home office website, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/294755/FOI_30270_-_Annex_B_-_Notice_02-2014_-_Surinder_Singh_-_redacted.pdf

The Notice states by way of background:

 “2.The Immigration (European Economic Area) (Amendment) (No.2) Regulations 2013 were amended on 01 January 2014 to include a new threshold test to tighten the circumstances in which family members of British Citizens can rely on the Court of Justice of the European Union (ECJ) judgment in Surinder Singh C-370/90). The Surinder Singh judgment was implemented into the 2006 Regulations by way of regulation 9.

 3.The new requirement at regulation 9(2)(c) and 9(3) requires the British citizen to have transferred the centre of their life to another EEA member state, where they resided as a worker or self-employed person with their spouse or civil partner before returning to the UK.

4.This change was made to ensure that a British Citizen engages in genuine and effective use of the rights conferred by EU free movement law before a right to reside in the United Kingdom is conferred on a non-EEA family member. The principle behind Surinder Singh is the need to ensure that nationals of a Member State are not deterred from exercising Treaty rights through not being able to return to their Member State of origin with third country family members”.

Regulation 9 therefore   in effect appears to  have  codified the Surinder  Singh judgement  and as recently as  January 2014  the Home Office sought  not to  do away with Surinder   Singh but rather  to  introduce a tighter test into Regulation 9(the arguments in relation to that  tighter test are for another occasion). The Upper Tribunal themselves note  at paragraph 2  of their decision,  that Section 5 of the relevant  application form that was before them, entitled “Surinder Singh Cases”, recognised, by implication, that the decision in “Surinder Singh” provides a specific route to the acquisition of a residence card. The Tribunal also  state at paragraph 17 of their decision that Regulation 9 is concerned with the conferral of rights of ” family members” of British citizens, and is  couched in terms which “resonate” strongly with the decision in Surinder Singh.   But having regard to how  the Home Office currently view Regulation  9 and Surinder Singh, this is simply  not mere resonation –  simply put, the Home Office saw it fit  to implement the Surinder Singh judgement  into the 2006 Regulations and unless  the home office decide otherwise,  that is indeed currently in practice  the enduring impact of the decision in Surinder Singh in the wake of the Citizen’s Directive and EEA Regulations.

CONCLUSION

There might by other avenues open  to the Appellant in Osoro, to  seek to regularise his status. Having  been  in the UK since 1996, in the absence of any  countervailing  circumstances and also subject to having  the relevant evidence, perhaps  he can have resort in a matter of months in 2016,  to Paragraph 276ADE(1) (iii)  of the Immigration Rules,  in relation to showing that he has been  in the  UK continuously  for at least 20years and thus  ask to be granted  leave to remain on the basis of his private life in the UK.

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