Britse rechter: voor de Belgie-route moet je er wel echt gewoond hebben en niet alleen een pasje kunnen laten zien

Dat pasje kan je gebruiken om werkelijk verblijf aan te tonen maar er moet wel echt daar verbleven zijn voor langder dan drie maanden.

 Alexander Schymyck writes:

Surinder Singh route still requires genuine residence abroad

The Court of Appeal has confirmed that in order to benefit from the Surinder Singh principle, the family involved must have genuinely resided in another EU country and have created or fortified their family life there. In Kaur and Ors v Secretary of State for the Home Department [2020] EWCA Civ 98 it rejected the argument that, as a result of the Court of Justice decision in C-202/13 McCarthy No.2, anyone with a residence card from another member state is entitled to have their family come and live with them in the United Kingdom.

The facts of this case are not attractive. Mr Singh and Mrs Kaur had previously been married but divorced in 2004. The following year Mr Singh married a Polish national, obtained residence rights in the UK and became a British citizen in 2012. In 2013 he divorced his Polish wife and re-married Mrs Kaur. The couple went to live in Bulgaria with their children for 19 days in 2017 and Mr Singh obtained a residence permit. Then the family returned to the UK.

The couple sought to rely on the Surinder Singh principle to get residence rights for Mrs Kaur and their children. That principle allows EU citizens to obtain residence rights for family members in their home country if they move elsewhere in the EU and then return. The idea is to ensure that EU citizens are not discouraged from moving to other European countries.

To prevent abuse, the residence abroad must be genuine and in some way create or fortify family life.

At their initial appeal the First-tier Tribunal, perhaps unsurprisingly, found that the residence in Bulgaria was not genuine and there was no attempt to develop a family life there. Nonetheless, it allowed the appeal on the ground that, following the decision in McCarthy No.2, any EU citizen with a residence card must be permitted to enter with their family members.

The Upper Tribunal rejected that argument and the Court of Appeal was equally dismissive, ruling that McCarthy No. 2 was concerned with the procedural requirements on entry and not the substantive rules for residence rights:

Lees hier verder:  https://www.freemovement.org.uk/surinder-singh-route-still-requires-genuine-residence-abroad/?utm_source=rss&utm_medium=rss&utm_campaign=surinder-singh-route-still-requires-genuine-residence-abroad&utm_source=Free+Movement&utm_campaign=016c4f7692-Daily+emails+everything&utm_medium=email&utm_term=0_792133aa40-016c4f7692-116334469&mc_cid=016c4f7692&mc_eid=b72b4a153a


  Kaur and Ors v Secretary of State for the Home Department [2020] EWCA Civ 98
 Zie: https://www.bailii.org/ew/cases/EWCA/Civ/2020/98.html

Directive 2004/38/EC

1. The obvious place to look for such rights is the Citizenship Directive which (as Article 1(a) explains) "lays down the conditions governing the exercise of the right of free movement and residence within the territory of member states by Union citizens and their family members".


2. Rights of residence are dealt with in Article 6 (rights of residence for a period up to 3 months) and Article 7 (rights of residence for a longer period for workers, the self-sufficient and students). These articles deal with the rights of Union citizens (and their family members) in member states other than the citizen's home state: McCarthy v SSHD Case C-434/09 [2011] ECR I-3375 at [29], [2011] All ER (EC) 729, and O v Minister voor Immigratie, Integratie en Asiel at [29] and [37] to [43]. In the latter case the CJEU stated (emphasis added):



"37. It follows from a literal, systemic 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.

38. Article 3(1) of Directive 2004/38, defines the 'beneficiaries' of the rights conferred by it as 'all Union citizens who move to or reside in a member state other than that of which they are a national, and … their family members as defined in [article 2(2)] who accompany or join them'.

39. Accordingly, Directive 2004/38 establishes a derived right of residence for third country nationals who are family members of a Union citizen, within the meaning of article 2(2) of that Directive, only where that citizen has exercised his right of freedom of movement by becoming established in a member state other than the member state of which he is a national: see Metock's case, para 73; Dereci v Bundesministerium für Inneres (Case C-256/11) [2011] ECR I-11315; [2012] All ER (EC) 373, para 56; Iida's case, para 51; and para 41 below.

40. Other provisions of Directive 2004/38, in particular article 6, article 7(1)(2) and article 16(1)(2), refer to the right of residence of a Union citizen and to the derived right of residence conferred on the family members of that citizen either in 'another member state' or in 'the host member state' and thus confirm that a third country national who is a family member of a Union citizen cannot invoke, on the basis of that Directive, a derived right of residence in the member state of which that citizen is a national: see McCarthy's case, para 37; and Iida's case, para 64.

41. As regards the teleological interpretation of Directive 2004/38, it should be borne in mind that whilst it is true that Directive 2004/38 aims to facilitate and strengthen the exercise of the primary and individual right to move and reside freely within the territory of the member states that is conferred directly on each citizen of the Union, the fact remains that the subject of the Directive concerns, as is apparent from article 1(a), the conditions governing the exercise of that right: McCarthy's case, para 33.

42. Since, under a principle of international law, a state cannot refuse its own nationals the right to enter its territory and remain there, Directive 2004/38 is intended only to govern the conditions of entry and residence of a Union citizen in a member state other than the member state of which he is a national: see McCarthy's case, para 29.

43. In those circumstances and having regard to what is said in para 36 above, Directive 2004/38 is therefore also not intended to confer a derived right of residence on third country nationals who are family members of a Union citizen residing in the member state of which the latter is a national."

3. Thus the Directive itself confers no right to reside in the United Kingdom on the appellants.


4. I come now to Article 5 of the Directive, on which the appellants rely. It provides that member states shall grant leave to enter to family members of a Union citizen without requiring an entry visa or equivalent formality. Possession of a residence card issued by a member state exempts family members from the requirement to have an entry visa. In McCarthy v SSHD (No. 2) the CJEU held that Article 5 (unlike Articles 6 and 7) is not limited to states other than the Union citizen's home state but applies also to the conditions for entry by a family member to the Union citizen's home state:



"41. Article 5 of Directive 2004/38 refers to 'member states' and does not draw a distinction on the basis of the member state of entry, in particular in so far as it provides that possession of a valid residence card as referred to in article 10 of the Directive is to exempt family members of a Union citizen who are not nationals of a member state from the requirement to obtain an entry visa. Thus, there is nothing at all in article 5 indicating that the right of entry of family members of the Union citizen who are not nationals of a member state is limited to member states other than the member state of origin of the Union citizen.

42. Accordingly, it must be held that, pursuant to article 5 of Directive 2004/38, a person who is a family member of a Union citizen and is in a situation such as that of Ms McCarthy Rodriguez is not subject to the requirement to obtain a visa or an equivalent requirement in order to be able to enter the territory of the Union citizen's member state of origin."

5. However, this decision does not mean that the effect of Article 5 is to confer a right to reside on a family member of a Union citizen merely because that family member is in possession of a residence card:



(1) Rights of residence were not in issue in McCarthy (No. 2). Mr McCarthy (a British citizen) and his wife were resident and wished to remain resident in Spain. Nor was there any issue about rights of entry. It was not disputed that the family member, Ms McCarthy Rodriguez, had a right of entry. The only question was whether, in order to exercise that right, she was required to go through the tedious and inconvenient formality of obtaining a "family permit" in advance every time she wished to accompany her husband on a visit to the United Kingdom. That would have required her to travel from their home in Marbella to the United Kingdom diplomatic mission in Madrid. The CJEU held that she was not required to do this and that the United Kingdom was not entitled to impose such a requirement as a general measure under Article 35 of the Directive, without regard to the circumstances of the individual family member, because of a concern about widespread abuse by those wishing enter this country, for example sham marriages. (2) It is in any event apparent from the terms of Article 5 considered as a whole, which I have set out above, that the Article is concerned with the documents which must be produced by a person having a right of entry. See for example the terms of Article 5.4. It does not purport to confer any new right of entry, let alone residence.
(3) It would make no sense to say that a person has a right of entry but not a right to reside. The two are inextricably linked. Thus, as Article 10 of the Directive makes clear, the purpose of a residence permit to a family member is to evidence a right of residence. When asked what the appellants would be entitled to do in the United Kingdom once they had exercised a right of entry, Mr de Mello could only say that they would be entitled to reside here for a period of up to three months in accordance with Article 6. But as the citation from O v Minister voor Immigratie, Integratie en Asiel set out above demonstrates, Article 6 does not confer any such right on a family member in the Union citizen's home state.
(4) To have held that an unqualified right of entry for the family member of a Union citizen in the latter's home state (or for that matter in any member state as the decision in McCarthy (No. 2) was that Article 5 draws no distinction between different member states) can be derived from Article 5 would have run counter to the scheme of Articles 6 and 7 with their careful distinction between temporary residence and more permanent residence for the purpose of exercising rights of free movement.

6. Accordingly the decision in McCarthy (No. 2) is solely concerned with the procedural question of the formalities with which a family member must comply in order to exercise a right of entry. It has no bearing on the present case and does not confer a right of entry on a person who has no right to come here.


7. I note that this understanding of McCarthy (No. 2) accords with the analysis of Lang J in Benjamin v SSHD [2016] EWHC 1626 (Admin). She said:



"83. Accordingly, while McCarthy establishes that it is unlawful for the Defendant to insist on the possession of an EEA family permit by a family member of a UK citizen seeking to enter the UK, where that family member holds a valid residence card under Article 10 of the Directive, it remains lawful for the Defendant to determine, before granting entry, whether the family member in question in fact fulfils the conditions for entry provided by EU law. The legal position as clarified in McCarthy is reflected in regulations 11(2)(a) and 19(2)(b) of the 2006 Regulations, which together make clear that the family member of an EEA national may be admitted to the UK on presentation of a valid passport and a 'qualifying EEA state residence card', but only provided that the EEA national has a 'right to reside in the United Kingdom under these Regulations'. The relevant regulation in this case was regulation 9."

Article 21(1) TFEU

8. However, the terms of the Directive are not an exhaustive statement of a family member's right to enter and reside in an EU state. In some circumstances, even where the terms of the Directive itself do not apply, they have been held to apply "by analogy" in order to render effective the fundamental Treaty provisions concerning free movement.


9. This can be seen in O v Minister voor Immigratie, Integratie en Asiel. O, a Nigerian national, was resident in Spain and had a Spanish residence card. He was married to a Dutch citizen, who lived in the Netherlands. She lived with him in Spain for two months after their marriage, but otherwise only visited him there for holidays. He sought the right to reside in the Netherlands, his Union citizen spouse's home state. The position of O was therefore very similar to that of Mrs Kaur.


10. The CJEU held that O could not rely on Articles 6 and 7 of the Directive as they are concerned with the legal situation of the Union citizen in a member state of which the citizen is not a national (see [29] and [37] to [43], quoted above).


11. However, there could be a derived right of residence for a family member based on Article 21 TFEU, the basic Treaty provision concerning freedom of movement. That would arise because to deny a right to reside in the Union citizen's home state to a family member could act as a deterrent to the exercise of freedom of movement by the Union citizen (see [49]). For example, a French citizen might be deterred from going to work in Germany by the thought that, if he developed a family life in Germany, his family members might not be able to accompany him when he returned home to France. This is the Surinder Singh principle. In such circumstances, although the Directive did not apply directly, it should be applied "by analogy":



"50. So far as concerns the conditions for granting, when a Union citizen returns to the member state of which he is a national, a derived right of residence, based on article 21(1)FEU, to a third country national who is a family member of that Union citizen with whom that citizen has resided, solely by virtue of his being a Union citizen, in the host member state, those conditions should not, in principle, be more strict than those provided for by Directive 2004/38 for the grant of such a right of residence to a third country national who is a family member of a Union citizen in a case where that citizen has exercised his right of freedom of movement by becoming established in a member state other than the member state of which he is a national. Even though Directive 2004/38 does not cover such a return, it should be applied by analogy to the conditions for the residence of a Union citizen in a member state other than that of which he is a national, given that in both cases it is the Union citizen who is the sponsor for the grant of a derived right of residence to a third country national who is a member of his family."

12. However, for this analogy to operate, the residence of the Union citizen in the host member state had to be "sufficiently genuine so as to enable that citizen to create or strengthen family life in that member state":



"51. An obstacle such as that referred to in para 47 above will arise only where the residence of the Union citizen in the host member state has been sufficiently genuine so as to enable that citizen to create or strengthen family life in that member state. Article 21(1) TFEU does not therefore require that every residence in the host member state by a Union citizen accompanied by a family member who is a third country national necessarily confers a derived right of residence on that family member in the member state of which that citizen is a national on the citizen's return to that member state."

13. As the CJEU put it at [56]:



"Accordingly, it is genuine residence in the host member state of the Union citizen and of the family member who is a third country national, pursuant to and in conformity with the conditions set out in article 7(1)(2) and article 16(1)(2) of Directive 2004/38 respectively, which creates, on the Union citizen's return to his member state of origin, a derived right of residence, on the basis of article 21(1) FEU, for the third country national with whom that citizen lived as a family in the host member state."

14. The CJEU added at [60]:



"So far as concerns Mr O, who, according to the order for reference, holds a residence card as a family member of a Union citizen pursuant to article 10 of Directive 2004/38, it should be borne in mind that Union law does not require the authorities of a member state of which the Union citizen in question is a national to grant a derived right of residence to a third country national who is a member of that citizen's family because of the mere fact that, in the host member state, that third country national held a valid residence permit. … A residence card issued on the basis of article 10 of Directive 2004/38 has a declaratory, as opposed to a constitutive, character …"

15. It is unnecessary in this appeal to consider what counts as "genuine" or "sufficiently genuine" residence. A derived right of residence on the basis of Article 21(1) TFEU is not available to the appellants in view of the unchallenged (and, I would add, unsurprising) findings of fact by the FTT that their residence with Mr Singh in Bulgaria was not genuine and that there was no creation or fortification of family life there.


16. Moreover, the CJEU's statement at [60] that the mere possession of a Spanish residence permit did not provide Mr O with a right to reside with his spouse in her home state applies equally to the appellants. There is nothing in the decision to suggest that a family member whose residence in another member state is not "genuine" has a right to enter or reside in the Union citizen's home state merely because of possession of a residence permit and [60] of the judgment is inconsistent with any such suggestion.


17. Mr de Mello submitted that O v Minister voor Immigratie, Integratie en Asiel can be distinguished on the basis that the sponsor in that case, Mrs O, was not exercising Treaty rights in Spain. While that may be a point of factual distinction, it played no part in the reasoning of the CJEU, which was as I have summarised it above.


18. There is in my judgment no basis for thinking that the CJEU in McCarthy (No. 2) intended to overrule the decision in O v Minister voor Immigratie, Integratie en Asiel. It did not say so and the two cases were dealing with very different issues. O v Minister voor Immigratie, Integratie en Asiel is referred to repeatedly in the McCarthy (No. 2) judgment (see [31], [34], [36], [54] and [62]), at one point being cited as "settled case law", while at [62] the CJEU even referred to [60] of the judgment in O v Minister voor Immigratie, Integratie en Asiel as confirming that residence permits issued on the basis of EU law declare and do not create rights. It added that "the fact remains that … the member states are, in principle, required to recognise a residence card issued under article 10 of Directive 2004/38, for the purposes of entry into their territory without a visa", going on to say at [63] and [64] that the United Kingdom was entitled to verify the correctness of the data appearing on the Spanish residence permit in that case, although it could not impose further conditions on entry additional to those provided for by EU law.


19. In the present case, therefore, the United Kingdom was entitled to investigate whether the appellants had a right to enter and to conclude that, because their residence in Bulgaria was not "genuine", they did not.

Later authorities

20. Moreover, cases decided after McCarthy (No. 2) have continued to adopt the analysis in O v Minister voor Immigratie, Integratie en Asiel. See Coman v Inspectoratul General pentru Imigrari Case C-673/16 [2019] 1 WLR at [20], [23] and [24] and Case C-89/17 SSHD v Banger [2019] 1 CMLR 6 (extending the reasoning to same sex and unmarried partners of a Union citizen).

Conclusions

21. In the light of the discussion above I return to the way in which Mr de Mello puts the appellants' case, as summarised above. I accept the first step in his argument (that Mr Singh was exercising Treaty rights as a worker in Bulgaria) and I am prepared to assume (without deciding) that the appellants were his "family members" who had joined him there and were therefore "beneficiaries" of the Directive within the meaning of Article 3.


22. However, even accepting this, the question remains whether the Directive conferred relevant rights upon them. Undoubtedly it conferred some rights, for example (subject to any question of abuse) a right to reside with Mr Singh in Bulgaria while he was exercising Treaty rights there. But it did not confer on them a right to reside in the United Kingdom, Mr Singh's home state, because (as I have explained) Articles 6 and 7 do not confer any such right. Nor did it confer on them any right of entry to the United Kingdom pursuant to Article 5, whether characterised as "free-standing" or otherwise, because Article 5 confers no such rights, but rather is concerned with the documents which must be produced by a person who has such a right.


23. Further, the appellants cannot benefit from any application of the Directive "by analogy". The findings of the FTT rule out any such possibility.


24. For these reasons I conclude that the Upper Tribunal reached the right conclusion. The appellants did not have the right to enter pursuant to the 2016 Regulations. Nor do they have any more extensive right to enter under the provisions of EU law which the 2016 Regulations have failed to confer on them.

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