Case No. UKUT-00593-(IAC)

Singh ex parte Secretary of State for the Home Department [1992] ECR I-4265 is formed by two principles, namely the principle of the efficacious enjoyment of Treaty rights and the principle of non-discrimination. (ii) These are the two principles to which Tribunals must have particular regard in deciding cases in which the appellant does not satisfy any of the provisions of the Immigration (European Economic Area) Regulations. (iii) The co-existence of the decision in Surinder Singh with Directive 2004/38/EC (“the Citizens Directive”) raises questions which may require to be determined in some appropriate future case. DECISION AND REASONS I ntroduction 1.This appeal has its origins in a decision made on behalf of the Secretary of State for the Home Department (hereinafter the “Secretary of State”), the Respondent, dated 30 April 2014 whereby the Appellant’s application for a residence card under the Immigration (EEA) Regulations 2006 (hereinafter the “EEA Regulations“) was refused. The Appellant’s appeal against this decision was dismissed. The central question of law raised by this appeal concerns the ambit of the decision of the European Court of Justice (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 (hereinafter Surinder Singh). F actual M atrix 2. The material facts are uncontentious. The Appellant is a national of Kenya , aged 29 years. His application for a residence card is dated 15 March 2014. In his application he was required to provide particulars of his EEA national family member. He id entified this person as his uncle, a male British national born in 1975. Section 5 of the application form, entitled “ Surinder Singh C ases”, recognises, by implication, that the decision in “Surinder Singh” provides a specific route to the acquisition of a residence card. In completing this section, the Appellant made the following representations: (a) His British citizen family member (his uncle) had exercised Treaty rights as a worker in another EEA member state, Belgium . (b) The Appellant was the family member of the British citizen (his uncle) during such period. (c) The Appellant did not reside with his uncle during such period. (d) His uncle worked in Belgium between 01 July and 15 November 2013, returning to the United Kingdom on 19 December 2013. 3. At the hearing before us the uncontenti ous factual matrix was amplified somewhat. The Appellant’s uncle explained that the Appellant had been living with him and his family in London since 1996, when he was aged around eight . The Appellant has been a member of his uncle’s household ever since. When the uncle went to Belgium in mid-2013 he was accompanied by his wife. At that time their plan, stimulated mainly by the apparent prospect of long term employment, was to reside there for some considerable time. However, the employment period which materialised was unexpectedly short and, further, some family problems develop ed in London . As a result, they returned to the family home in London in December 2013. Throughout the intervening period the Appellant lived in the family home with other members of the uncle’s family. The uncle added that his spouse has an EEA family permit. 4. Th e “ Surinder Singh ” section of the Form contains the following instruction: “ You must provide evidence to show that you resided in the EEA member state at a time when your family member was exercising Treaty rights in that EEA member state. ” No such evidence was provided. 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 relationsh ip between the Appellant and the British citizen as nephew/uncle and representing that they lived together in London . None of this is contentious. The Secretary of State’s Decision 5. The Secretary of State’s reasons for refusing the Appellant’s application were formulated in the following terms: “ It is noted that your sponsor … is a British citizen and thus not an EEA national as claimed. This therefore means that you have no basis of application under the [EEA Regulations] as you have failed to provide evidence that you are the family member of an EEA national. … In addition to the above, it is noted that you have failed to provide any evidence of your dependency and/or residence with your sponsor prior to entering the United Kingdom pursuant to regulation 8(2)(a). ” The decision also articulates the following omnibus reason for refusal: “ Your application is therefore refused under regulation 8(2) .. as you have not provided evidence that you are the relative of an EEA national. ” As these passages indicate , the decision maker viewed the Appellant’s application exclusively through the lens of the EEA regulations. Notwithstanding the invitation in the Secretary of State’s application form to seek a residence card under the “Surinder Singh” route, there is no mention of this decision and no recognition of any such route in the determination. We shall revisit this issue presently. The Decision In Surinder S ingh 6. Mr Singh, a national of India , married a British national in the United Kingdom in 1982. From 1983 to 1985 both were employed in Germany , following which they returned to the United Kingdom in order to establish a business. In 1986 Mr Singh was granted limited leave to remain in the United Kingdom as the husband of a British national. The following year Mr and Mrs Singh were divorced. This was the impetus for a decision refusing to grant him indefinite leave to remain. Subsequently, at a stage when he had no leave to remain a deportation order was made against him under section 3(5)(a) of the Immigration Act 1971. 7. The provisions of EU law raised by this preliminary reference from the United Kingdom High Court for a preliminary ruling were Articles 48 and 52 of the EEC Treaty and Council Directive 73/148. The two Treaty provisions are concerned with the freedom of movement of EU citizens throughout EU Member States for the purpose of working or establishing oneself. The Court also considered the prohibition of discrimination prescribed by Article 7 of the Treaty. The subject matter of the Council D irect ive , which is complimentary to the substantive Treaty provisions, is 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. The EU law framework has altered subsequentl y. Regulation 1612/68 was repea led by Regulation 492/2011, Article 41 while Directive 68/360 was repelled and replaced by Directive 2004/38/EC, the so-called “Citizens Directive”. These measures were designed to, inter alia , develop and fortify the free movement principles enshrined in the Treaties. 8. What did Surinder Singh decide? The essence of the decision of the Immigration Appeal Tribunal was that Mr Singh had a Community l aw right as the spouse of a British citizen who, in turn, had a Community l aw right to set up business in the United Kingdom . This decision was challenged by the Secretary of State by an application for judicial review, giving rise to the reference to the ECJ for a preliminary ruling. The ECJ ruled in favour of Mr Singh. Its decision was that Article 52 of the Treaty and the Council Directive, in tandem, 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 in circumstances where both have travelled to another Member State in order to work, following which the national concerned returns to the Member State of which he or she is a national for the purpose of establishing a business. Vis-à-vis the British citizen concerned (Mrs Singh), both movements were protected by T reaty provisions. The first was protected by Article 4 8 of the Treaty. The second was protected by Article 52. 9. The Court further held that, b y virtue of the prohibition against discrimination, the non-national 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 . In [21], notably, family members were clearly at the heart of the Court’s thinking. What is the essential reasoning of the decision ? The Court reasoned, in [23] , that the rights conferred by Articles 48 and 52 of the Treaty: “ …. cannot be fully effective if [an EU citizen] 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 choose to enter and reside in another Member State. ” Within this passage one readily identifies the familiar principle of efficacious enjoyment of Community law rights and the related concept of dissuasion, or deterrence , coupled with the principle of non-discrimination . This, viewed through a common law prism, is the ratio decidendi . 10. Summarising, the effect of the decision of the ECJ was to grant to the third country spouse of a EU citizen the right of residence under EU law in the country of the EU citizen provided that the third country spouse had accompanied the EU citizen from the “first” EU state to the “second” EU state, the object of the transition being to pursue employment or self-employment on the part of the EU citizen, and further accompanied the EU citizen spouse on the reverse journey undertaken with the same purpose. The central breach of EU law found by the Court was that the conditions in the United Kingdom applicable to Mr Singh upon return were less favourable than those from which he benefited when the first movement was made . In thus deciding, the ECJ rejected the argument of the United Kingdom Government that the position of the returning spouse of the EU citizen was governed by national law, holding that the rights engaged were those conferred by Articles 45 and 49 of the Treaty. Post – Sur inder Singh 11. There has been some evolution in the case law of the ECJ since Surinder Singh was decided. In