greatscott wrote: ↑
Sat Sep 09, 2017 5:09 pm
And SS according to EU law is perfectly understood by all of the EU, except the UK.
That is not entirely correct if taken at an EEA level. Most of the EU has a more cohesive immigration system, even for non-EEA citizens. The UK (and Ireland and Denmark, if I am not mistaken) opted out of this unified immigration system.
Even other countries in the EEA that have independent immigration policies have alternate interpretations of the Surinder Singh and other case-based legal constructs. See this thread
about a Norwegian couple being questioned by the Norwegian UDI over their use of the SS route (in particular, see points 4 & 5. They seem to be eerily similar to the UK's interpretation).
Just to clarify on a later post, the SS route comes from a court judgment. The UK is required to abide by the judgments of the ECJ. But the UK had no political vote on it (though there was a Scottish judge on the bench).
This post on the LSE Brexit blog
is about financial services, but it highlights (in my opinion) the reason why the SS and other case-based legal constructs have a rough ride in the UK.
But it is also a question of legal tradition. EU legal interpretation is purposive not literal and the wording of provisions is seen as an approximation to what is enacted, with the true force often being wider than what is written on the page. Such an approach is shunned in successful financial centres for its lack of certainty, which has a chilling effect on business.
EU legal interpretation is significantly different from the way an English court would interpret law. Which is why UK laws (and court judgments) are written in a much more detailed manner. Compare the detail of the UK Immigration Rules to the brevity and generality of the EU DIrective 2004/38/EC. We are of course entirely different legal systems. The civil law system of the Continent is only now developing jurisprudence constante
, which we had (as binding precedent) for centuries.
Conversely, the UK has a tradition of sticking to the text of the law (or binding judgment), while the EU and other civil law systems allow judges much more latitude in interpreting the laws according to the intent of the legislature
. Given that it is practically impossible to divine the collective intent of any group of people (like Elizabeth I, we have no window into other people's souls), that essentially allows the judges to rewrite the law to fit their belief system, irrespective of the actual tenor of the law. For instance, Directive 2004/38/EC has nothing about EEA citizens returning to their home countries after a stay in another EEA member-state. A British judge would not have given that argument any regard. But European judges, steeped in a different legal system, interpreted the Directive so as to include the returning EEA citizens.
You may disagree with this post, but I hope you gain a better understanding why there are differences between the UK and the EU when it comes to interpretation of case-based legal constructs. It is not just a Brexit thing, it goes back centuries (tempted to say "time immemorial", but some people here may know that that phrase has a specific legal meaning. Google it).
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.