I have completed the first stage of a project today, contemplated for exactly a year — an application under Surinder Singh route, relying on para 49 and 50 of the O and B v Netherlands judgement, e.g relying on self-sufficiency as basis for prior exercise of Treaty rights. I think this, on the eve of possible Brexit, is a big unanswered question in British terrifyingly poor interpretation of EU law.
The decision has been out for 2 years, we all know what it says, and yet Home Office pretends it doesn’t exist. Even August 2015 modernised guidance on EEA case law, even though it mentions the decision, mentions only the restrictive portions of it (HO appears to think that it somehow vindicates the “center of life” provisions, which is bizarre but beside the point).
So I have two theories — either they are quietly granting the applications under this argument, hoping that this will not be publicized, or my clients may go on to become a test case on this in the UK.
I have hand-picked this case because the client is a perfect test case in all other respects. The marriage has existed for years, the couple have children together, who are British, they have all lived overseas for years, for a number of years in Spain and then for a number of years in a 3rd country (Russia), as well as for some time equally between the two.
Residence in Spain lasted for years and is well established, the family own property there and the applicant holds a permanent residence card there under Free Movement as a family member of an EU citizen. The applicant has no UK immigration history whatsoever, except frequent travel here as a visitor, always short visits. But the basis of residence in Spain was always self-sufficiency only (the source of wealth was in Russia).
The couple are well to do and self-sufficiency is well established without a doubt. So this case is absolutely ideal as a test case on this, because there is absolutely nothing wrong with it, except this single question of law — UK govt recognising that Singh should be, like ECJ says, extended to self-sufficiency.
The applicant, naturally, qualifies for leave under an array of categories under the Immigration Rules, including under appendix FM, and would have no difficulty getting leave — but as someone who did in fact live in the EU under the Directive for years, he understands his EU rights and wishes to assert them.
I would never advise him to go through with this if I did not think he has 100% chance to prevail eventually — but the timing of this eventuality is, of course, a question. I am so psyched about this, I simply cannot keep this to myself. So, if anyone has thoughts or knows of other cases, please share )))