European Union law facilitates the free movement of its citizens within its borders, allowing European Treaty rights to be exercised anywhere in that area. Being no great fan of Europe, foreigners, or of free movement into UK borders, UK governments have not always been keen to play the Euro game.
Consequently, UK domestic law intended to give effect to these European principles has tended to be mean and minimalistic; draftspersons have strained the meaning of words and principles almost to breaking point in order to minimise the number of foreigners allowed to this Green and Pleasant Land. (And they accuse immigration barristers of being devious and cunning!)
Surinder Singh – EU rights extended to cover family members of British citizens
A peculiar result was that, whilst citizens from other EU states, working in the UK, could (under EU law) bring their 3rd country spouses to the UK, British citizens could not do the same. The argument was a technical one to do with construction of the words used in the EU Treaty (rather than its spirit or intention). It was a mean and silly point and the UK was taken to the EU Court of Justice over it and then forced to change the Regulations.
If you want the detail, have a look at the case of Surinder Singh.
Following the judgement in Surinder Singh, the UK again made minimal changes, declining to extend the principle to give UK citizens the full rights available to non-UK Europeans working in the UK.
One result was this: under EU law, a worker who wanted to bring her unmarried 3rd-country partner to live with her in the UK could do so- as long as that worker was not British! If she was British, argued the Home Office, she was in the UK under UK law, not EU law (and I can do what I want with my own subjects, so there!).
Some British citizens felt this was an unfair (and bizarre) situation.
But the Home Office stuck to its guns.
Once again, the matter has come before the courts.
Kamila Santos Campelo Cain – Surinder principles applied to extended family
In a determination promulgated on 17-Oct-14 (unreported at the time of writing), the Upper Tribunal (Immigration and Asylum Chamber), Mr Haddon-Cave, J, and Mr Kopieczek considered the question whether an unmarried partner is entitled to the benefit of the decision of Surinder Singh [1992] EUECJ C-370/90 … and the extent to which a third country national family member of such a British citizen is entitled to reside in the UK under EC law. (Kamila Santos Campelo Cain v Secretary of State for the Home Department IA/40868/2013).
The first instance judge had allowed an appeal against the Home Office's decision to refuse a residence card to the Brazilian national wife of a British citizen returning worker. There had been no dispute that the relationship was genuine and enduring or that the family (including the couple's 2 children) had lived together in other EU state's whilst the partner had worked there.
Instead of accepting the judgement and issuing the card, the Home Office appealed on the basis that the EEA Regulations (i.e. the UK law) didn't cover extended families.
Actually, as the Upper Tier noted, the judge had "manifestly not made this mistake"- in fact, noting the Regulations didn't cover the situation, he had applied the Directive directly (i.e. European law).
Although the Home Office's Grounds of Appeal were flawed, they were granted permission to appeal; after noting the same the tribunal went on to consider the wider merits of the case.
Immigration barristers Jan Doerfel and Jeremy Chipperfield argued that the effect of the Surinder Singh judgement was that British citizens exercising treaty rights should, on their return to the UK, be treated no less favourably than any other European nationals- and this means the EU rights cover extended family as it does with other EU nationals.
The effect of the domestic Regulations was unfairly to discriminate against British nationals.
The Upper Tribunal noted: notwithstanding that Surinder Singh… concerns family members as defined by the Directive, we cannot see any distinction in principle between [it] and the case of the appellant before us. In our judgement, the exercise of the right of free movement by an EEA national is as likely to be adversely affected by the inability of a durable partner to reside with the EEA national in the host State, as it would be were his or her spouse to be denied residence status. … we do consider that the Surinder Singh principle does extend to persons such as the appellant who are in a durable relationship…
I will report the Home Office response (if any) on the UK Visa and Immigration blog.
Update:
Following requests and with the kind permission of the Appellant, here is the determination in the above (presently unreported) case:-
Kamila Santos Campelo Cain v Secretary of State for the Home Department.