It is a common occurrence for a British citizen to meet and form a relationship with a non-EU national living in the EU with their respective right of residence. The principle established in the Surinder Sigh allows a British citizen returning from the continent to bring certain non-EU relatives into the UK. It is important to note that this is a European Union law and not the domestic rules of a particular member state that also applies to any family members.
In the recent case of Secretary of State for the Home Department v Christy EWCA Civ 2378 the Home Office has made an attempt to limit the obligation to consider the right established in Surinder Sigh. Ms. Christy established a strong relationship with Mr. Jones, a British citizen whilst they were residing in Poland under Poland’s domestic immigration rules and not under EU law.
The Home Office argued that they had no obligation on a Member State to even consider a Surinder Sigh application where the applicant was not granted a right to remain in the member state where the relationship was formed on the basis of that relationship.
Although a member state will still have the freedom to refuse an application after full examination on the personal circumstances of the applicant, Lord Justice Sales stated in his judgment
“it would be inconsistent with the rationale given by the CJEU …. to deny the existence of a derived right of facilitation in such a case”
Lord Justice goes on to affirm that the Home Office must bear in mind that the absence of an application in the host member state for status under EU law based on the relationship could not be a relevant factor, given that it was not a pre-requisite.
The decision made is entirely sensible and fair as it would be wrong to impose a requirement on a non-EU national when they had their own right to reside under the appropriate domestic law.
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