UK to leave EU - Surinder Singh consequences?

[Casa]

You may find this article by JCWI.org informative
https://www.jcwi.org.uk/blog/2016/02/22 ... es-foreign

and this background from Free Movement posted in 2014
https://www.freemovement.org.uk/outcome ... of-appeal/

MM are the initials of the appellant v Secretary of State for the Home Department [2014] EWCA Civ 985

[Jellybean105]

My husband currently has a 5 year EU family permit through the SS route, its valid till Dec 2019 but 5 years complete in Feb. Do you think he will be able to acquire PR through transitional arrangements?
If not, what would be the process after his current family permit?

[CR001]

My husband currently has a 5 year EU family permit through the SS route, its valid till Dec 2019 but 5 years complete in Feb. Do you think he will be able to acquire PR through transitional arrangements?
If not, what would be the process after his current family permit?

How does 5 years complete in Feb when he has not been in the UK on the EEA route for 5 years?

[Jellybean105]

I meant in Feb 2019. We returned to the UK in Feb 2014 but received the permit in Dec 2014.

[Richard W]

My husband currently has a 5 year EU family permit through the SS route, its valid till Dec 2019 but 5 years complete in Feb. Do you think he will be able to acquire PR through transitional arrangements?
If not, what would be the process after his current family permit?

If we are still in the EEA (Norwegian or Liechtensteinian model) in February 2019, he will still get it by the current rules. If we leave the EEA, I don't know, for negotiated transitional arrangements will be designed to protect EEA citizens in the UK, and you and your husband won't be EEA citizens.

[Jellybean105]

Sorry, I'm just a little confused. Would I not be considered an EEA citizen? The family permit says Residence card of a Family Member of an EEA National.

Thanks

[Richard W]

Sorry, I'm just a little confused. Would I not be considered an EEA citizen? The family permit says Residence card of a Family Member of an EEA National.

I assumed you were British. If you're British and the UK leaves the EEA, you won't be an EEA citizen. Why should the EU negotiate to protects the rights of British citizens in the UK? Whether any transitional arrangements cover you will be quite random. As the Home Office have no love for users of the SS route and you are not explicitly covered in Directive 2004/38/EC ('SS rights apply by analogy'), you could very easily be overlooked or deliberately left out.

[CR001]

Sorry, I'm just a little confused. Would I not be considered an EEA citizen? The family permit says Residence card of a Family Member of an EEA National.

I assumed you were British. If you're British and the UK leaves the EEA, you won't be an EEA citizen. Why should the EU negotiate to protects the rights of British citizens in the UK? Whether any transitional arrangements cover you will be quite random. As the Home Office have no love for users of the SS route and you are not explicitly covered in Directive 2004/38/EC ('SS rights apply by analogy'), you could very easily be overlooked or deliberately left out.

The OP is indeed a British Citizen.

[Jellybean105]

Thank you for the reply. So, where do we stand now? Do you think my husband would have to apply for a spouse visa and wait another 5 years before getting naturalised? In that case, will the 4.75 years of the EU family permit count towards the 5 years lawful residence?

We've been through so much and for it to come to down to this is just tragic. It seems as though when we have finally reached the end.. it moves further away.

[gillacious_505]

Sorry, I'm just a little confused. Would I not be considered an EEA citizen? The family permit says Residence card of a Family Member of an EEA National.

I assumed you were British. If you're British and the UK leaves the EEA, you won't be an EEA citizen. Why should the EU negotiate to protects the rights of British citizens in the UK? Whether any transitional arrangements cover you will be quite random. As the Home Office have no love for users of the SS route and you are not explicitly covered in Directive 2004/38/EC ('SS rights apply by analogy'), you could very easily be overlooked or deliberately left out.

I would like to differ with above. If the transitional arrangements are meant for EU nationals in the UK, then the same should be applicable for the family members of British citizen who are deemed to be EU national(SS category). It just doesn't make sense. At the end of the day the family member of EU national and the family member of SS based british citizen would have the same passport stamp i.e EEA2. So as long as the rules for permanent residence card doesnt change for the former, the latter should be fine. In my opinion the threshold is to have atleast EEA 2 residence card before article 50 gets concluded. That should be considered safe enough.

[logical_1]

Sorry, I'm just a little confused. Would I not be considered an EEA citizen? The family permit says Residence card of a Family Member of an EEA National.

I assumed you were British. If you're British and the UK leaves the EEA, you won't be an EEA citizen. Why should the EU negotiate to protects the rights of British citizens in the UK? Whether any transitional arrangements cover you will be quite random. As the Home Office have no love for users of the SS route and you are not explicitly covered in Directive 2004/38/EC ('SS rights apply by analogy'), you could very easily be overlooked or deliberately left out.

I would like to differ with above. If the transitional arrangements are meant for EU nationals in the UK, then the same should be applicable for the family members of British citizen who are deemed to be EU national(SS category). It just doesn't make sense. At the end of the day the family member of EU national and the family member of SS based british citizen would have the same passport stamp i.e EEA2. So as long as the rules for permanent residence card doesnt change for the former, the latter should be fine. In my opinion the threshold is to have atleast EEA 2 residence card before article 50 gets concluded. That should be considered safe enough.

I believe S.Sers should be fine as long as they hold EEA2.
But what about people on Family permits and ongoing EEA2 applications before and after Article 50 ?

[Obie]

After Article 50 is invoked, which unfortunately is unlikely to happen anytime soon, other provision of ECHR may come into play, which will enable you to stay.

[secret.simon]

After Article 50 is invoked, which unfortunately is unlikely to happen anytime soon, other provision of ECHR may come into play, which will enable you to stay.

Could these be elaborated on? How does Article 50 interact with the ECHR?

[Obie]

After Article 50 is invoked, which unfortunately is unlikely to happen anytime soon, other provision of ECHR may come into play, which will enable you to stay.

Could these be elaborated on? How does Article 50 interact with the ECHR?

The premise of your question or understanding or reading of my post is inconsistent with my post,which unfortunately did not suggest a link between Article 50, and ECHR, so it is not sensible to drag it that far.

My post is confined to the fact that if a person who currently benefit from EU law cease from benefiting from it, due to a contracting state opting out, then individuals who had resided in that state will have a case under Article 8 ECHR or the Vienna Convention.

That in my view, is different from a suggestion, that Article 50 and Article 8 are linked.

[gillacious_505]

The main ambiguity is what is the current status of the freedom of movement 'during' Article 50 period. It will take 2 years minimum to withdraw from the EU. So does that means during this period of 2 years the status quo of free movement remains? If so, then I guess Surinder SIngh can still be exercised in these 2 years.

[CR001]

The main ambiguity is what is the current status of the freedom of movement 'during' Article 50 period. It will take 2 years minimum to withdraw from the EU. So does that means during this period of 2 years the status quo of free movement remains? If so, then I guess Surinder SIngh can still be exercised in these 2 years.

Yes, after invoking Article 50, then during the 2 years free movement should be unaffected.

[Jellybean105]

The main ambiguity is what is the current status of the freedom of movement 'during' Article 50 period. It will take 2 years minimum to withdraw from the EU. So does that means during this period of 2 years the status quo of free movement remains? If so, then I guess Surinder SIngh can still be exercised in these 2 years.

Yes, after invoking Article 50, then during the 2 years free movement should be unaffected.

Hopefully, that will be the case. But then what will happen to all current EEA2 holders & those who get it in the next 2 years who won't be able to apply for PR in time?

[CR001]

The main ambiguity is what is the current status of the freedom of movement 'during' Article 50 period. It will take 2 years minimum to withdraw from the EU. So does that means during this period of 2 years the status quo of free movement remains? If so, then I guess Surinder SIngh can still be exercised in these 2 years.

Yes, after invoking Article 50, then during the 2 years free movement should be unaffected.

Hopefully, that will be the case. But then what will happen to all current EEA2 holders & those who get it in the next 2 years who won't be able to apply for PR in time?

None of us know. This will likely be part of the many discussions in parliament/government in the coming months and the negotiations with Brussels.

[gillacious_505]

I am pretty assure the future of EEA2 holders would be safeguarded because the criteria for the settlement of EEA2 cannot be changed retrospectively.

[ouflak1]

I am pretty assure the future of EEA2 holders would be safeguarded because the criteria for the settlement of EEA2 cannot be changed retrospectively.

The UK has implemented retroactive changes concerning settlement before (admittedly with mixed success), and they might decide, or be forced, to do so again. And I don't think there is anything at all about this contingency in the EEA agreement. If there were, somebody surely would have just quoted that section by now and this thread of discussion would have ended right then and there.

I believe there will have to be some kind of reasonable transitional arrangement in place because this affects so many British citizens living outside the UK as well as EU citizens. But right now, all of the EU politicians seem to be taking hard line stances and are unwilling to publicly suggest or consider reasonable compromises that would benefit everybody, or atleast that everybody could live with. So we just don't know.

[aledeniz]

I’m sure their entry would be covered under Article 8. This is likely to be the view of the ECJ as the UK will not be withdrawing from the Human Rights Act.

This argument has already been made and failed. The counter argument being that the UK citizen can always go live with their spouse in the spouse's country with no restriction.

My wife is now a British citizen, but before that it was never the case I could go living in her country, Turkey, with no restrictions, they wouldn't give me a work permit even with a solid offer by a multinational in place.

[noajthan]

My wife is now a British citizen, but before that it was never the case I could go living in her country, Turkey, with no restrictions, they wouldn't give me a work permit even with a solid offer by a multinational in place.

Not clear why it is expected that people can go 'anywhere' and have unfettered free access to 'everything' in that country without restriction;
each sovereign country will naturally govern such entry and access to foreigners by implementing a visa system to service the self-interest and the wants and needs of that country.
Including UK.

Anything else requires a collectively agreed. collaborative approach between a grouping of countries - sound familiar?
And it is a free market/single market/free movement type of system that is now being systematically dismantled.

[Richard W]

Anything else requires a collectively agreed. collaborative approach between a grouping of countries - sound familiar?

Yep, we used to have the principle - a wife could live with her husband in his country in much of the world.

The EU has never supported that principle, and the Commission claimed to be ready to overrule the Metock judgement, which underpins most use of Surinder Singh. I'm still not sure it won't happen - it isn't just the UK government which dislikes the Metock judgement.

[ouflak1]

I’m sure their entry would be covered under Article 8. This is likely to be the view of the ECJ as the UK will not be withdrawing from the Human Rights Act.

This argument has already been made and failed. The counter argument being that the UK citizen can always go live with their spouse in the spouse's country with no restriction.

My wife is now a British citizen, but before that it was never the case I could go living in her country, Turkey, with no restrictions, they wouldn't give me a work permit even with a solid offer by a multinational in place.

You do not have a human right to work. That's a country-by-country thing. The UK is exceptional in its generosity on this point concerning spouses, and even here there many notable restrictions. When I said 'no restriction', I meant that the UK is not restricting you from being with your spouse in their country. Hence their is no valid Human Rights claim. I did not mean that the spouse's country would allow you in with no restrictions.