Have I triggered my EC freedom of movement rights?

[thrope]

Hi all,

I am a British citizen since birth.

My wife is non-European, non-Commonwealth citizen with ILR (since 2007). We currently have her application for British Citizenship in progress.

She would like to apply for a civil service job. I am trying to understand this section of the guidance:

Exceptionally, the family members of a UK national who do not themselves meet the Nationality Rules may be eligible to join the Civil Service if the UK national has triggered his or her freedom of movement rights under European Community law (normally by working elsewhere in the EEA for a period). Where a department or agency thinks that an individual may be eligible on these grounds, the C abinet Office must be consulted in the first instance.

I lived in Germany for 1 year 11 months. Does this mean my EC freedom of movement rights have been triggered? (and hence that she is elligible to work in civil service)

Is there anywhere I can find out more about these rights and how they are triggered (I have not been able to find any other references online).

It seems very strange that she would be elligible for employment as a consequence of our time living outside of the UK, while if we had lived in the UK continuously she would not be elligible - but that is my understanding of the above and if it means she can apply we will happily take the opportunity

Any help apprecaiated.

[Mr Rusty]

That's an interesting conundrum, the answer to which I do not claim to know, so these are just a few random thoughts on the matter.

The "Surinder Singh" principle, which is what you are seeking to exploit, developed because it was thought that someone who had exercised the right to live and work in another country and have their non-EEA Family members with them should not have to jump through further hoops when returning to their own.

You don't say when you lived and worked in Germany - if it's recently, you might have a case. If it was some time before 2007 when your wife was granted ILR, it seems a bit ridiculous now to say that you were exercising a Treaty Right when she was admitted to the UK as a spouse under the Immigration Rules. Come to think of it, she couldn't have correctly qualified for British Citizenship now if she'd recently been living with you in Germany, so I assume it was a good while ago.

But in any case, consider the consequences of going down the EEA route. So, she's granted a Residence Card, spends 5 years qualifying for Permanent Residence and can then start to think about applying for British Citizenship - which she's already applied for. It doesn't make sense, to me at any rate.

I reckon she'd be better applying to McDonald's than the Civil Service......

[thrope]

It was recently that we were in Germany (2011-2012).

I was working and she was accompanying me. She does not qualify automatically for citizenship based on the absence, but is within the limits for which discretion can be allowed (I have other posts on this) and based on a careful reading of Ch 18 Annex B she qualifies for this discretion in two different ways, so I am hopeful for her application.

She doesn't need a residence card or anything - she has ILR and the legal right to work in the UK so we would not apply for anything more (I am not sure I understood your point in this paragraph). This is specifically a civil service policy. I understand that by spending time in the EU I have somehow upgraded myself to be considered as an EU citizen, and as such it may be illegal for them to discriminate against my spouse by refusing to employ her. But I am not sure.

Thanks for the input

[Mr Rusty]

She doesn't need a residence card or anything - she has ILR and the legal right to work in the UK so we would not apply for anything more (I am not sure I understood your point in this paragraph).

I think my point was that as your wife has never made an application under EEA Regulations she may perhaps not be judged to qualify for any perceived benefits of those regulations. But I agree that you have placed yourself in the position of a "UK national [who] has triggered his or her freedom of movement rights under European Community law (normally by working elsewhere in the EEA for a period)", which is the wording of the guidance you quote, and your wife is your family member regardless of her immigration status in the UK, so a literal interpretation seems to give you some grounds for hope.
I'm sure that a situation like yours was never imagined when they wrote that guidance, and of course the get-out for them is the word "Exceptionally". Presumably your wife (as well as you) had some sort of residence documents relating to her stay in Germany. If so, they could add some weight to your case.

Edit - a further thought posing a negative view. It could be argued that your wife is trying to have it both ways. She is arguing that she has met the qualifying period of residence for British citizenship at the same time as saying that she was established as an EEA Family Member resident with you in Germany. Some might say that's taking the P155, I honestly don't know.

I think if you google Surinder Singh you will get plenty of links which explain this part of immigration law. But it is immigration law, not employment law, and in the end the Civil Service can employ whom they like.

[thrope]

I would argue that the issues are quite independent (her elligibility for citizenship and my EU rights) and that the EU rights is something that applies to me as a UK national and not to her (she is not claiming any EU rights or looking to change her status, since she already has ILR).

But actually she has received notification that ILR is sufficient for her to apply for the post in question which renders this discussion rather academic (and anyway hopefully the citizenship applicaiton will be successsful!)

Thanks again for your help,

[Obie]

I dont think I agree with my Rusty and his reasons for adopting his interpretation of Sing.

I believe your wife falls within the ambit of Surinder Singh.

She accompanied you to Germany, you both lived there as man and wife, at a time when you worked there. Therefore your circumstance cannot be considered purely internal to the UK. The fact that she did not apply under EU law but rather national rules, makes no difference.

In the case of Surinder Singh, it was serval years after Mr Singh returned with his wife to the UK, that he sought to invoke his community law rights, following the difficulties in his marriage, which made it impossible for him to continue to rely on the immigration rules.

[Clubman]

Agree with Obie,

Lived and worked in another EEA state.
So the requirement was fore-filled.
In this respect, you turned yourself in to an European citizen, by living and working in Germany.
Your wife was along side you, and as such, she is granted the same rights as you.

The fact you did not apply the SS was that you didn't need to.

Oh ! it is still confusing.

[euroguys]

My understanding would also be that you would not have to have made any application under EU law for a right to exist. The right exists independant of any apllication to confirm it.

[Directive/2004/38/EC]

I dont think I agree with my Rusty and his reasons for adopting his interpretation of Sing.

I believe your wife falls within the ambit of Surinder Singh.

She accompanied you to Germany, you both lived there as man and wife, at a time when you worked there. Therefore your circumstance cannot be considered purely internal to the UK. The fact that she did not apply under EU law but rather national rules, makes no difference.

In the case of Surinder Singh, it was serval years after Mr Singh returned with his wife to the UK, that he sought to invoke his community law rights, following the difficulties in his marriage, which made it impossible for him to continue to rely on the immigration rules.

Very clear that she is covered by Singh.

And because of that, she enjoys equal treatment to British citizens (except for some national security related jobs).

Article 24 - Equal treatment

1. Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence.