Introduction

In the case of Kaur & Ors v. Secretary of State for the Home Department ([2020] EWCA Civ 98), the England and Wales Court of Appeal addressed significant issues pertaining to the rights of non-EEA family members seeking entry and residence in the United Kingdom under EU law. The appellants, Mrs. Harvinder Kaur and her two children, challenged the refusal of entry clearance based on their possession of Bulgarian residence permits. Their objective was to join Mr. Kulwant Singh, Mrs. Kaur's husband and a British citizen, thereby asserting their rights as family members under the EU's free movement principles.

Summary of the Judgment

The Court of Appeal upheld the decision of the Upper Tribunal, dismissing the appellants' appeal against the refusal of entry clearance. Lord Justice Males, delivering the judgment, concluded that Mrs. Kaur and her children did not qualify for admission under Regulation 9 of the Immigration (European Economic Area) Regulations 2016. The primary reasons were the non-genuine nature of their temporary residence in Bulgaria and the inability to invoke broader EU rights beyond the 2016 Regulations. Consequently, the appellants' attempt to circumvent UK immigration laws through the "Surinder Singh" route was unsuccessful.

Analysis

Precedents Cited

The judgment extensively referenced several key precedents that shaped the Court's reasoning:

• R v Immigration Appeal Tribunal ex parte SSHD Case C-370/90 ("Surinder Singh"): Established that family members could gain residency rights in the UK by exercising free movement rights in another EU member state.
• McCarthy v SSHD (No. 2) Case C-202/13: Clarified that procedural requirements for entry do not extend to conferring substantive rights of entry or residence.
• O v Minister voor Immigatie, Integratie en Asiel Case C-456/12: Emphasized that genuine residence is essential for family members to derive residency rights upon return to the EU citizen's home state.
• Coman v Inspectoratul General pentru Imigrari Case C-673/16 and SSHD v Banger Case C-89/17: Reinforced the necessity of genuine residence and adherence to established free movement principles.

Legal Reasoning

The Court's legal reasoning pivoted on the interpretation of EU law, particularly Directive 2004/38/EC and the Treaty on the Functioning of the European Union (TFEU). Key points include:

• Directive 2004/38/EC ("Citizenship Directive"): Governs free movement and residence rights of EU citizens and their family members. Articles 3(1), 5, 6, 7, and 10 were particularly pertinent in determining eligibility and procedural requirements.
• Regulation 9 and 11 of the Immigration (European Economic Area) Regulations 2016: Regulation 9 pertains to the rights of family members treated as family members of EEA nationals, while Regulation 11 addresses the rights of family members of EEA nationals to enter the UK.
• Genuine Residence Requirement: The appellants' 19-day stay in Bulgaria was deemed insufficient to establish genuine residence or to create/fortify family life, crucial for deriving residency rights under Directive 2004/38.
• Definition of "EEA National": As clarified, British citizens are excluded from the "EEA national" definition for the purposes of these regulations, negating the applicability of Regulation 11 to this case.
• Abuse of Rights under Article 35 of the Directive: The court determined that the appellants' actions constituted an attempt to circumvent UK immigration laws, which falls under the scope of rights abuse.

Impact

The judgment reinforces the stringent requirements for non-EEA family members seeking residence in the UK based on their ties to British citizens. Key impacts include:

• Clarification of "EEA National" Status: British citizens are explicitly excluded, limiting the applicability of certain regulations intended for EEA nationals.
• Limited Scope of the "Surinder Singh" Route: Emphasizes that temporary and non-genuine residence in another EU member state does not suffice to confer broader residency rights in the UK.
• Strengthening of Fraud Prevention: Reinforces the judiciary's stance against using EU regulations to circumvent national immigration laws.
• Guidance for Future Cases: Provides a clear precedent on evaluating the genuineness of residence and the creation of family life as prerequisites for deriving residency rights.

Complex Concepts Simplified

Genuine Residence

Genuine residence refers to a true and substantial period of living in a member state for the purposes of exercising Treaty rights, such as employment or study, rather than a mere formality to gain immigration benefits in another state.

Surinder Singh Route

The Surinder Singh route allows British citizens who have exercised their free movement rights in another EU country to bring their non-EEA family members to the UK under EU law, provided certain conditions, like genuine residence, are met.

Directive 2004/38/EC ("Citizenship Directive")

This EU directive outlines the rights of EU citizens and their family members to move and reside freely within the territory of the member states, specifying conditions and procedures for entry and residence.

Regulation 9 and Regulation 11

• Regulation 9: Applies to family members of British citizens treated as family members of EEA nationals, granting them similar free movement rights, provided their residence in an EEA state was genuine.
• Regulation 11: Relates to the right of entry into the UK for family members of EEA nationals who present valid residence cards issued by other EEA states.

Abuse of Rights under Article 35

Abuse of rights involves using rights in a manner that goes against their intended purpose, such as entering into sham marriages or temporary residences solely to gain immigration benefits.

Conclusion

The decision in Kaur & Ors v. SSHD underscores the necessity for non-EEA family members to establish genuine and substantial residence alongside their EEA national family members to derive residence rights under EU law. The Court of Appeal meticulously delineated the boundaries of existing regulations, affirming that mere possession of a residence permit from another EU state, without genuine residential and familial ties, does not confer the right to enter or reside in the UK. This judgment not only reinforces the integrity of national immigration laws against potential EU law circumventions but also provides clear guidance on the interpretation and application of free movement rights for family members within the EU framework.