Will Surinder singh route be available for next few years?

[Santyroger]

I just have some doubts on surinder singh route.

If UK leaves EU in 2017, will there be any chance of surinder singh route getting abolished? I mean is there any possibility of surinder singh route to be removed in the near future?

I am planning to bring my parents to UK using surinder singh option, once I gets my British citizenship.

Moreover a 6 months contract job in Ireland or any other eu countries, be sufficient to get my parents into UK?

Kindly advice.

[PrestonLancs]

Who knows.

[Casa]

There's no doubt that the Government will want to tighten the current conditions for the Surinder Singh route, with claims that those using this bring family in to settle here is circumventing the UK Immigration rules. There may be more refusals in the future but this doesn't mean that the decisions won't be over-ruled in court appeals.
2017 is only scheduled for a UK referendum on EU membership...not for a proposed date for leaving the EU.

[Obie]

I don't believe Surinder Singh is part of David Cameron ' s agenda for Negotiation, as he has been informed that Free movement is not up for negotiation.

I believe UK will likely ease the restrictive immigration rules it were to leave the EU. So it may be a win win situation.

[Casa]

I thought you may have an opinion Obie

[Obie]

I thought you may have an opinion Obie

I must say , it is quite something that you can read me like a book.

For the time being Mr Cameron cannot do much about those category of swarms yet..

[Wanderer]

I thought you may have an opinion Obie

I must say , it is quite something that you can read me like a book.

For the time being Mr Cameron cannot do much about those category of swarms yet..

Strikes me as odd to that there is more uproar over a dead lion then a dead migrant.

RIP Cecil of course, also RIP the unknown migrant....

[Obie]

In that regards, suffice to say, that British People and its political establishment and institutions has to do some soul searching.

I must say I am surprised by your post Wanderer. You didn't strike me as someone who will post that.

Germany and Sweden can raise their head high up in the midst of this situation.

However i think one has to ensure we don't get carried away and deviate this thread, into something which it was not.

I am not sure David Cameron in in any mood to grant that poor Sudanese man Posthumous honoury citizenship award.

[Casa]

I thought you may have an opinion Obie

I must say , it is quite something that you can read me like a book.

For the time being Mr Cameron cannot do much about those category of swarms yet..

Strikes me as odd to that there is more uproar over a dead lion then a dead migrant.

RIP Cecil of course, also RIP the unknown migrant....

+1 Wanderer

[Wanderer]

In that regards, suffice to say, that British People and its political establishment and institutions has to do some soul searching.

I must say I am surprised by your post Wanderer. You didn't strike me as someone who will post that.

Germany and Sweden can raise their head high up in the midst of this situation.

However i think one has to ensure we don't get carried away and deviate this thread, into something which it was not.

I am not sure David Cameron in in any mood to grant that poor Sudanese man Posthumous honoury citizenship award.

Last post from me on this!

I know I'm a hard liner on immigration (I should like a politician!) but it's because I genuinely feel UK plc is full and too easy to get into - but that's not for now.

A human life is not worth any of this, it's precious and this man's death really hurts me to the core, really. I don't want to see that, and I was going to say no one does but they do, some people really do not care, they've been desensitised by the dehumanisation of people so desperate to escape countries that the UK has most probably wrecked or pillaged with in Colonial days and recently, it's a real tragedy.

Normal service will be resumed as soon as possible!

And vote Corbyn!

[Obie]

Is this really Wanderer or someone hacking with his details?

I don't believe UK is easy to get to. Otherwise all the people that you see in Calais would have been here.


The British Government calling instabilities in these countries is a huge contributing factors to these people's ordeal.

[Wanderer]

Is this really Wanderer or someone hacking with his details?

I don't believe UK is easy to get to. Otherwise all the people that you see in Calais would have been here.


The British Government calling instabilities in these countries is a huge contributing factors to these people's ordeal.

Haha!

You're probably right actually - just the perception one gets from being 54 now, born in Bolton, back in the 60's even Manchester (12 miles away) seemed like the Moon. Suddenly (to me) it all changed and everything went cosmopolitan, I think I struggled to keep up.

I like to think I can adjust myself though, and Corbyn's leadership challenge has lit my fuse, reignited me to my old Socialist self, my core beliefs. Believe it or not I used to give out leaflets in front of Bolton Central Library for CPGB (Communist Party of Great Britain) and was a confirmed Marxist.

Mellowed a bit now and probably went a bit too far the other way, readjustment is ongoing now tho!

Anyway, what did the OP want to know?!!!

[Obie]

I hope you are not one of the Tories for Corbyn.

Just to get back on to the topic.

The ECJ in singh ruled that UK citizens who return home , has the right to do so under the treaty. This right cannot be eroded by the UK.

I don't believe it is a purely internal matter, and don't believe it is up for discussion..

[secret.simon]

Strikes me as odd to that there is more uproar over a dead lion then a dead migrant.

I do not have any intention to cause offence, but there are fewer lions in Africa than there are illegal migrants at Calais.

In point of law, I would defer to Obie due to his superior knowledge of law. But as this thread is opinion-based, I will differ with him about the long term availability of the Surinder Singh route.

The Surinder Singh route is based on the judicial interpretation of a Directive of the European Union. Both the judicial interpretation and the Directive can be modified much more simply than the treaties themselves. An amendment or a new Directive in this field only requires Qualified Majority Voting, not unanimity and neither treaty change nor ratification.

There are a few ways I can foresee it being done
a) A straightforward repeal of Directive 2004/38/EC
b) As a compromise, an explicit amendment that would bring the requirements for family members in line with those for extended family members. That would make them subject to national laws, not EU law.
c) Move it from being a part of the EU acquis to being part of the Schengen acquis, making it applicable to Schengen countries only.

I would think that getting rid of the Surinder Singh route is a low lying fruit that David Cameron would capitalise on getting rid of, to show the British people that he has got some concessions on immigration, without compromising on the freedom of movement of EU citizens themselves.

[Obie]

The courts have made clear that the rights that derive from Singh , originate directly from the treaty and not secondary legislation like the directive or a regulation..

For your preposition to be accepted, there will have to be a treaty change on free movement .

It will have to be made explicitly clear, that a national of a memberstate can never be able to invoke the treaty provision against their memberstate of origin, irrespective of whether they has resided in another memberstate.

Not sure Germany will accept a change that goes that far. It will go against their red line position on Free movement of people.

[secret.simon]

@Obie
In response to your argument, I read the original Surinder Singh judgment and the Articles of the EEC treaty referenced in it.

The Court seems, in my interpretation, to have looked at the issue as having two aspects;
a) If a British citizen worked in the rest of the (then) EEC and then moved back, would he continue to exercise treaty rights?
b) Would a spouse of such a person come under the purview of the treaty rights?

The Court undeniably agrees that the first question must be answered in the affirmative based on Articles 48 & 52 of the treaty.

What it then goes on to say is that the rights of the spouse are based on the fact that s/he accompanied the British citizen based on EEC Regulations allowing for the same. This then created the right of the spouse to accompany the British citizen back to the UK, based on their accompanying the now EEC citizen into the UK.

The wording in the judgment is

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 chose to enter and reside in another member-State.

(emphasis mine)

The second leg of the argument, from my reading of the judgment, is based on the fact that the spouse accompanied the British citizen out of the UK based on EEC regulations. But if there are no EU regulations that allow for it, the Surinder Singh route for non-EEA family members will fail, without in any way affecting the rights of full British citizens to move across the UK.

In other words, if a non-EEA spouse has to accompany the EEA citizen on national visas, rather than based on EEA Regulations, the Surinder Singh Route is dead.

The second leg of the Surinder Singh route, extending it to non-EEA family members, is wholly dependent on EU regulations and directives and I offer you the proposition that that is much simpler than amending treaties.

For the avoidance of doubt, I am not a lawyer and have based my argument on an ordinary English interpretation of the text of the judgment and treaty articles.

[Obie]

Well i have difficulty in accepting that view.

Even if it might have been argued , that it is correct in 1992, the case of OB (C456/12) in 2014, makes clear that your views cannot be correct.

The court in the later case , made clear that the right derives directly from the treaty and not the directive , and that memberstates should apply the directive ananalogously and not directly.

[secret.simon]

Again, I would respectfully disagree.

The judgement you referred to still refers to Article 21(1) TFEU to be read with Directive 2004/38/EC.

Paragraph 39 states that the rights of non-EEA spouses of EEA citizens is established by Directive 2004/38/EC and it therefore stands to reason that repeal or amendment of the Directive would remove those rights.

Paragraph 35 states that the reason to create the Directive was to facilitate the freedom of movement of the EEA citizen. But, logically, there would be no need for such a directive if the treaty itself created rights for the non-EEA family member of the EEA citizen.

Reading Paragraph 39 and 35 together, one could conclude that the freedom of movement for EEA citizens could still be facilitated if the Directive was modified to allow national governments to issue national visas to non-EEA family members on more favourable terms that it would to purely non-EEA citizens.

Even Paragraph 55 of the judgment, which is the strongest statement on your position, seems dependant on a visa being issued under the terms of the Directive. If there is no such visa, the judgment falls to pieces.

As an aside, I would read some of this judgment as obiter dicta. Paragraph 42 seems to abolish any distinction in British law between British Citizens and other categories of British nationalities (such as BNO, BOC, etc), as regards the right to reside in the UK.

[Obie]

I believe there might have been an oversight on your part.
I am not sure how paragraph how paragraph 37 slipped your peripheral view.

If you read paragraph 37 of that judgement, then you will get a better understanding of what I was seeking to convey to you .

Then again it does to matter. You are entitled to hold the view you wish.

[secret.simon]

Paragraph 37 only states Directive2004/388/EC does not apply to family members of Union Members who have not resided in another EU country. I'm not sure of the relevance of that paragraph to this discussion.

I hope I am not offending you by pursuing this matter. I like to understand both sides of the argument and I am trying to understand the entirety of your argument. Hence the probing and questions. It is only to help me understand the issue in greater depth.

[Obie]

Itfollows from a literal, systematic and teleological interpretation of Directive 2004/38 that it does not establish a derived right of residence for third‑country nationals who are family members of a Union citizen in the Member State of which that citizen is a national

The above is what Paragraphs 37 says.

My reading of it is quite different from yours.

I am not annoyed with you at all.

[secret.simon]

Could you expand on your interpretation of the Paragraph? I fail to see any alternate interpretation of that Paragraph.

[Obie]

Well it is self explanatory .

Directive 2004/38EC does not provide a derivative right of residence to the family member of a Union Citizen in the memberstate in which they are a national.

However in circumstance where they reside in another memberstate and return home, article 21 provides for a right of derivative residence to their family, and in those circumstances, the directive should apply by analogy.

[secret.simon]

It takes a leap of faith, unaided (it seems to me) by anything in the text, to come to the conclusion you have.

It is almost as bad as the US Supreme Court finding rights in the penumbra of the Constitution (such as in Griswold v. Connecticut), not based on anything in the text, but based on what the justices seem to think is missing from the text.

I have a feeling that we will continue to disagree on this specific point.

Thank you for the courtesy of continuing to respond to my queries, in spite of disagreeing with me.

[mkhan2525]

I don't think we will see the end of Freedom of Movement in Britain if we decide to leave the EU. Brussels will simply impose the requirement on Britain as a condition in return for access to the EU market as it has done with Switzerland?

If this is the case then David Cameron's idea of grabbing back power from Brussels and to control the numbers coming into the UK from the EU countries is nothing more than a myth.