Surinder Singh Advice Sought

[manseca]

Howdy folks,

I'm seeking a wee bit of advice regarding Surinder Singh:

Here are my stats:

Me: American, 29 Wife: British/Irish, 32 Daughter: American/British/Irish, 2

My wife and I just moved to Northern Ireland (her home) from the Republic of Ireland. We crossed no border of course and I have already begun work (employer took passport copy and I explained EU laws - cross checked that with their company attorney and all is fine so long as I keep them updated with process).

We lived in Ireland (Republic) continuously since May 2014 and before that we were in Ireland for almost a short period in late 2012/2013. In total, we have accumulated roughly 2 years residence in the Republic.

However, my wife has not worked during this time as she has been raising our child and although she did apply for a couple of jobs, it was unsuccessful.

We have submitted the paperwork for the residence card as of the 12th Feb and did bio-metrics on the 4th March (2016). This included:

- Leases
- Utility bills
- Electoral enrollment
- Local Memberships
- Payslips
- P45s
- References from work/social life
- Marriage Cert
- Birth Certs (me, wife, and daughter)
- Passports
- Irish IDs (PPS and Residence card - for me)
- Other Supporting Docs

It's clear our "center of life" was well-established in the Republic of Ireland; however, my wife is an Irish citizen and did not need to find work or seek work to stay (as other EU citizens would). Does anyone have experience of this whereas the British Citizen (dual in this case) did not work and was wanting to return back to the UK? This is the only caveat that I worry about. Any and all feedback is greatly appreciated.

Alex and Brigid

Timeline:

- 12 Feb 2016: Tracked Post Confirmed Delivery in Durham
- 02 Mar 2016: Bio-metric enrollment letter received
- 04 Mar 2016: Bio-metrics enrolled in Belfast

[Casa]

My understanding is that dual Irish/British nationals are unable to use the Surinder Singh route through residence in Ireland, as your wife would not be able to 'exercise her Treaty Rights' in a country of which she holds citizenship.

[noajthan]

Howdy folks,

I'm seeking a wee bit of advice regarding Surinder Singh:

Here are my stats:

Me: American, 29 Wife: British/Irish, 32 Daughter: American/British/Irish, 2

My wife and I just moved to Northern Ireland (her home) from the Republic of Ireland. We crossed no border of course and I have already begun work (employer took passport copy and I explained EU laws - cross checked that with their company attorney and all is fine so long as I keep them updated with process).

We lived in Ireland (Republic) continuously since May 2014 and before that we were in Ireland for almost a short period in late 2012/2013. In total, we have accumulated roughly 2 years residence in the Republic.

However, my wife has not worked during this time as she has been raising our child and although she did apply for a couple of jobs, it was unsuccessful.

We have submitted the paperwork for the residence card as of the 12th Feb and did bio-metrics on the 4th March (2016). This included:

...

It's clear our "center of life" was well-established in the Republic of Ireland; however, my wife is an Irish citizen and did not need to find work or seek work to stay (as other EU citizens would). Does anyone have experience of this whereas the British Citizen (dual in this case) did not work and was wanting to return back to the UK? This is the only caveat that I worry about. Any and all feedback is greatly appreciated.

Alex and Brigid
...[/i]

I can see 2 difficulties due to the sponsor's British/irish dual nationality..

1) If your sponsor (spouse) is Irish she can't exercise treaty rights in Ireland.
That is not unless she has exercised rights in a.n.other EU country (not Eire, not UK).

2) Your wife was not actually exercising treaty rights in Eire (even if she could, ie disregarding that she is Irish), unless perhaps she was self-sufficient.

If you have intended to return to UK under the SS-route then it is only EEA nationals who have exercised treaty rights as workers or self-employed who will be recognised by UK.
(In terms of free movement, as a non EEA-national your economic activity is immaterial).

Or have I misunderstood?
- is it that by having exercised rights in UK you had returned to Eire as returning SS-ers?

Then again the problem is that sponsor will not be recognised as able to exercise treaty rights in UK as she would only be treated as being British there
(ie for immigration purposes).

It's quite confusing and your immigration status in UK is very unclear; not sure what your next step may be.

It may be your wife will have to renounce one of her nationalities in order to do this kind of thing between UK & Eire.
Or, as you have had a dry-run now, you could contemplate a move to somewhere else in EU, such as Malta.

In meantime, you can get up to speed on free movement here:
http://ec.europa.eu/justice/citizen/doc ... 013_en.pdf

[secret.simon]

I concur with the advice of CR001 and Noajthan.

The SS route has to be exercised through an EEA country of which you are not a citizen. If you are a citizen of an EEA country, your rights as a citizen of that country are more proximate than treaty rights.

As a British/Irish dual citizen, your wife should have exercised treaty rights in another EEA country, such as France or Germany. At a pinch, she could have even done so in Iceland, which is conveniently close to the US.

Secondly, treat rights does not mean just residence. Treaty rights involves doing one of the following;
a) working
b) seeking work
c) studying
4 self-sufficiency

The last two require Comprehensive Sickness Insurance (private health insurance) to count as exercising treaty rights. If she did not have insurance for both herself and all dependents, she has not exercised treaty rights at all.

So, the SS route fails on both scores.

[Obie]

I don't accept that Mccarthy can be read that far, such that EU law will be deprived of its usefulness.

If UK recognises a person who is a dual national as British, then it must be the case, that when they return home, they will be treated as British who was exercising treaty rights in another member state to all intense and purpose.

It will make a mockery of union citizenship if EU law cannot be applicable to a person in 2 memberstate.

That is not my reading of Mccarthy and the regulations.

It simply cannot be correct. I have yet to see a refusal and that basis. I will be interested to see one.

[lurli]

It was exactly the same point I was making yesterday, this forum is awash with so many members with very little knowledge of the law, what is the purpose of the forum when one could not rely on responses from members, it now seem to be perfectly acceptable to post an opinion, however misleading it might be is of no importance. This board has gone downhill from many years ago, in the days of Jambo, Directive2004, Ben, EUsmile, amongst many others, who actually try to know what they are talking about and real people benefited.

What you now have is a number of serial Google warriors. There is no UKVI policy interpreting Mccarthy in this way, how anyone could post this to mislead the OP and many other silent observers is pitiful and simply wrong.

It never used to be like this on this board.

[Obie]

Please show respect for others and their opinions. It is totally wrong for you to suggest the forum has gone down hill because people have differing view.

It will be wrong to say in court that the legal profession is going downhill because the views of your colleague or learned friend differs from yours.

Even though I disagree with the views , it does not in any way indicates that a coury may not accept it .

It may be challenged at an higher court, it is why we have an hierarchical justice system, as people may erred, judges get laws wrong, which is why there is appeal system. This says nothing about the legal system.

Please desist from acting in a dicourteous manner to moderators and other respected members.

[lurli]

Perhaps you will be correct Obie on what you said about members having a differing view if that differing view is actually the position in law. UKVI never interpreted Mccarthy in the way it is now presented on this board. It is actually malicious to say the least. Opinion do differs if it's regarding interpretation of the letter of the law, to the ones whom you accused me of discourteous, they are actually presenting an opinion which is at variance with government policy and doing so quite authoritatively.

I try to respect members of all kinds, being a mod does not and would not make me respect you more than I would respect a new member, please do not suggest to me to have respect for certain group of people as all members are the same to me.

[Obie]

My suggestion to you is based on this thread. It cannot be read as me indicating you have a passport to be rude to other.

Everyone should and must be respected. Your tone of writing is quite unacceptable and disrespectful.

You did not simply deal with the issues under discussion but went personal, comparing other member, talking about moderators in a demeaning manner.

Everyone ought to be respected and more so is the case of moderators, who run this forum and ensure that the rules are adhered to and the facilities are not abused.

If their view differ on an issue or inconsistent with your, it gives you no right to put them down .

Please calm down.

[lurli]

True that I didn't address the issue on the thread because it was the same matter being discussed in another thread yesterday before it got locked. The point you made was what I was making in the other thread yesterday.

If you talk about differing view, we all live in a civilised society and anyone should at least be entitled to their view, but on a board like this, where members are authoritatively forming view which are glaringly not consistent with policy or case law. The hatred of EU law has encouraged certain members of the forum to willingly mislead posters in other for them not to take advantage of the law and this is not a problem if the primary legislators had intended this to happen but they didn't and it is simply wrong to suggest it is a differing view. The misinterpretation of Mccarthy in this case is simply malicious.

Back in the days on this board, we never used to post for fear of being wrong as there were members who understood the law and will quickly call one out, but now members are free to post personal opinion which clearly does not represent the law and this is acceptable now?

Sorry but I knew when many members registered on this forum and that includes you, the board was a more respectable board in those days and to see you trying to endorse your new friends with whom you now together run the board. I need not say much suffice to say I will reconsider how I spend my holiday and rather stare away from this board before I get the ban as it seems you now all have a free pass to gag members.

I truly feel sorry for unsuspecting posters coming to this board with the aim of getting real advice. What they are now likely to get are opinions from covert tory political activists who are unable to distinguish political views from immigration laws/view/opinion.

[noajthan]

...

Here are my stats:

Me: American, 29 Wife: British/Irish, 32 Daughter: American/British/Irish, 2

My wife and I just moved to Northern Ireland (her home) from the Republic of Ireland. We crossed no border of course and I have already begun work (employer took passport copy and I explained EU laws - cross checked that with their company attorney and all is fine so long as I keep them updated with process).

We lived in Ireland (Republic) continuously since May 2014 and before that we were in Ireland for almost a short period in late 2012/2013. In total, we have accumulated roughly 2 years residence in the Republic.

However, my wife has not worked during this time as she has been raising our child and although she did apply for a couple of jobs, it was unsuccessful.

...

This case is different from another recent case that was shared in the forum; that person contemplating a Surinder Singh exercise was solely a British national (at least they did not say they were a dual national).

The potential sponsor in this case has declared themselves to be a dual national who is not economically active.
The OP explains his sponsor/spouse has not been either a worker or a self-employed qualified person in either country of which the sponsor has nationality and in which the family has resided.

There is no indication this family has enjoyed a sojourn in any other EU country.

I would be very happy to understand how the sponsor can be viewed as a returning resident who has exercised treaty rights in another member state.
That is my understanding of what is required in order to claim to the privileges bestowed by following the Surinder Singh route.
However this sponsor does not appear to be a qualified person and has only resided in countries of which she is a national.

Regarding McCarthy C-434/09, my understanding is that was a case that was very limited in scope, the judge's remarks on the case reflected that.

The UK Immigration Regulations were consequently amended after that case;
However, the Regulations as amended do not limit themselves to persons who are economically-inactive (as Mrs McCarthy was said to be) nor to persons who never exercised free movement/treaty rights.

The impact of McCarthy case is conveyed quite clearly here:

The new Regulations do take an expansive approach to the Court of Justice case law to restrict the rights of people to reside in the UK. For example, family members of dual British/EEA can no longer enjoy residence rights under the Regulations (unless the British/EEA national has lived in another EEA State) and must rely instead on the increasingly restrictive Immigration Rules.

This is arguably an exaggerated interpretation of the judgment in Case C-434/09 McCarthy, which found that a dual British/Irish citizen who had never left the UK and had never been economically active or self-sufficient here was not exercising EU-law free movement rights.

Ref http://www.migrantsrights.org.uk/migrat ... tions-2006

HMG appear to have ignored the judge's remarks (made at the time of the McCarthy ruling) & incorporated the outcome of the McCarthy case into restrictive Regulations.

This seems clear in related guidance published on Gov UK as recently as end of last year:
https://www.gov.uk/government/uploads/s ... s_v2_0.pdf
- see page 45

"EEA national” means a national of an EEA State who is not also a British citizen

This is relevant because HO caseworkers, whom I do not understand to be trained lawyers, will use such guidance in their day to day casework.

By not exercising treaty rights in another memberstate (of which the sponsor is not a national) its hard to see how Surinder Singh has been invoked here.

This all suggests to me that OP may face cursory refusal on part of HO to recognise the OP's application as being a Surinder Singh case; the OP and sponsor may have to be prepared to prosecute their rights in a court case.

If that leads to further clarifications by virtue of case law then I am sure many members and others would welcome such an outcome.

[Obie]

I don't quite agree with the above.

The definition of an EEA national, as a national of another memberstate , who is not also a British, is designed to prevent dual national who had never exercised treaty rights in another member state from relying upon EU law in the UK. It has nothing to do with Surinder Singh.


The whole purpose for doing that, is that in the case of a Dual national in their memberstate of origin only the nationality of their state of origin will be accepted, unless Surinder singh applies..

[lurli]

Family members of United Kingdom nationals
9.—(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a United Kingdom national as if the United Kingdom national were an EEA national.

[noajthan]

Family members of United Kingdom nationals
9.—(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a United Kingdom national as if the United Kingdom national were an EEA national.

Yes I concur, that is a relevant test condition in the Regulations.

Even if it is possible for the OP's sponsor to exercise treaty rights in their own second country (Eire), the OP's sponsor/spouse clearly fails these conditions:

(2)
(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;

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

[Obie]

Well clearly P will be recognised as a British Citizen in another member state.

The legislation cannot have it both ways. This will breach EU law on discrimination.

The UK cannot lawfully say, you are not recognised as an EEA national because you are British, and then say when you are in another memberstate exercising treaty right, I will not recognise you as British, I will recognise you as a National of another memberstate.

The effect will be so absurd , that no reasonable secretary of state will adopt such measure.

They once use to define a British Citizen in Regulation 2 as a person who falls to be treated as a British citizen for the purpose of the community treaties. That definition has been removed. Even in that scenerio, it will be absurd for any reasonable secretary of state, in the light of EU jurisprudence to deny a UK national the rights under the treaty in these circumstances.

[lurli]

Yes I accept the prospect of the application on the second limb is not good. I was not against that part of the previous statement, my point was the interpretation of McCarthy. It seems if Ireland can accept a dual Irish-British to rely on their British citizenship in Eire in other to rely on EC law then there the case rests. On return to the UK, by relying on their British citizenship to avail of SS, then UKVI cannot have any complaint if Reg 9 (1) (2) (3) are met.

If any complaint is to be made in regards to McCarthy it lies the Irish authorities and the circumstances will play a crucial part in the decision-making. If a dual Irish-British has always lived in the UK, it may well be the case that they can argue that by moving to Eire, the Irish authorities could not invoke McCarthy against them of course this represent my personal opinion, there is no Irish government policy on this matter.

P.S I was not accusing you noajthan of misleading the poster or misinterpreting McCarthy.

[Obie]

The fact that the Court of Appeal has decided to refer this case to the European Court of Justice, indicates that the answer to the question in this thread is not hear or there.

However, I believe common sense will prevail.

http://www.bailii.org/ew/cases/EWHC/Admin/2016/436.html

[lurli]

Whilst there are some similarities , the questions in the case cited and the circumstances are different.

The question turns on this:- Article 21 TFEU is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State, provided that the situation of that citizen does not include the application of measures by a Member State that would have the effect of depriving him of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen or of impeding the exercise of his right of free movement and residence within the territory of the Member States."

@ 42, Therefore, it can be seen that the CJEU did not exclude all Union citizens from the scope of the Directive simply because they had acquired citizenship of the host country, as well as another EU nationality. Mrs McCarthy fell outside the scope of the Directive because she had "never exercised her right of free movement" as she had always resided in a Member State of which she was a national, namely, the U.K. Mrs Ormazabal's position is clearly distinguishable because she has exercised her right of free movement, to move from her native Spain to the U.K.

A dual British-Irish citizen who has always lived in the UK, who then moves to the Republic has no connection with this in my view, they have simply gone to Eire to exercise that right, the Irish may pick an issue but not the UKVI, however in my view as shown above, they cannot be precluded by the Irish as they have not always lived in Eire.

In fact, the CJEU considered that the fact of dual nationality was irrelevant to the question of the applicability of the Directive. It stated:
"40. That finding cannot be influenced by the fact that the citizen concerned is also a national of a Member State other than that where he resides.
41. Indeed, the fact that a Union citizen is a national of more than one Member State does not mean that he has made use of his right of freedom of movement."