On the 9th of July 2012, the UK Home Office implemented major changes to the rules regarding family migration. These new rules make it much more difficult for British nationals to bring their non-EEA family members into the UK. The documentary requirements are cumbersome. The introduction of a £18,000 minimum income has caused a significant barrier with reports suggesting that 47% of the British population would not meet the minimum threshold. Further issues with the minimum income level arise due to the fact that the non-EEA nationals earning potential is not taken into account whatsoever. The rules regarding elderly dependant relatives make it almost impossible to unite with them. Where there is no cross border element to invoke European Union law, these tough and largely insurmountable domestic laws apply.
Paradoxically, if a UK citizen moved to Ireland for the purposes of economic activities, and wished to reunite with a non-EEA family member, EU free movement law applies, making the whole process much simpler and less cumbersome. An application for an EU Family residence card does not require excessive documentary evidence, and there is no minimum income level.
Basically, a case of reverse discrimination has been created between domestic Immigration law and the EU Free movement law. It is clearly more beneficial in terms of family reunification to be a UK citizen in Ireland, or an Irish citizen in the UK.
There is, however, an exception to this general rule.
The Case of Surinder Singh
The Court of Justice judgement in the case of Surinder Singh provides a means whereby EU Free Movement law can be applied for a Union citizen within their own member state. The basic principle derived from Surinder Singh states that the right for a Union citizen to move from one member state to another member state includes the right to return. If by returning, the Union citizen would not be able to take advantage of the more lenient free movement laws, it would be disadvantageous for them to return home. As such, the principle emerged that when the Union citizen returns to their home member state after exercising EU treaty rights in another member state, they are construed as exercising the rights of free movement under EU law. So, on their return, family reunification must be assessed under EU free movement law rather than domestic law.
The Effect of O V The Netherlands
The Surinder Singh principle was further developed by the Grand Chamber of the Court of the European Union in the case of O V The Netherlands. Despite not referring directly to the case, O V the Netherlands provides new, binding guidance on the Surinder Singh principle. Ultimately, O V the Netherlands set out that in order to take advantage of the Surinder Singh principle:
· A 3 month residence period is necessary;
· Holidaying or weekend visits do not qualify for the purposes of calculating the residence period;
· Any union citizen, not just workers or the self employed may benefit from the principle;
· During the required period of residence family life must have been ‘created or strengthened’;
· Abuse of the principle will not be allowed or tolerated.
This seeming ‘get out of jail’ card isn’t perfect. The UK Government’s official interpretation of the effect of Surinder Singh is set out in the Immigration (European Economic Area) Regulations 2006 at regulation 9 (as amended) – and it requires that the Union citizen’s “centre of life” has transferred to the other member State. For many people moving their whole life so as to invoke the Surinder Singh route just isn’t an option when considering jobs, families, mortgages, etc.
In Ireland, we do not have specific statutory measures, or even stated policy, on the Surinder Singh principle. From our experience here at Brophy Solicitors; where we are working on a number of these cases, the Department has accepted and applied the principle where evidence has been provided that the Union citizen genuinely exercised their EU treaty tights in the other member state.