Wycliffe Osoro v The Secretary of State for the Home Department

The Surinder Singh rationale rests on the efficacious enjoyment of Treaty rights and non-discrimination. A third-country family member cannot rely on that decision where the Union citizen exercised free-movement rights without that person and the refusal of residence neither deterred the citizen’s exercise of those rights nor produced discriminatory treatment.

The decision is not authority for a wider free-standing route to residence. Tribunals must examine the two underlying principles where an applicant cannot meet the Immigration (European Economic Area) Regulations 2006. The interaction between Surinder Singh and Directive 2004/38/EC was left for a suitable future case.

The appellant, a Kenyan national, applied for a residence card under the Immigration (European Economic Area) Regulations 2006. He relied on his British-citizen uncle, who had worked in Belgium for a short period before returning to the United Kingdom. The appellant remained in London throughout that period.

The Secretary of State refused the application. The First-tier Tribunal dismissed the appeal, holding that the appellant could not satisfy the relevant provisions of the Regulations. On appeal to the Upper Tribunal, the appellant accepted that position and relied solely on R v Immigration Appeal Tribunal and Surinder Singh ex parte Secretary of State for the Home Department, [1992] ECR I-4265. The central issue was whether that decision nevertheless conferred a right of residence.

1. Appeal dismissed. The First-tier Tribunal made no error of law in dismissing the appeal. Its conclusions that the appellant could not qualify under the Immigration (European Economic Area) Regulations 2006 were correct and were not challenged before the Upper Tribunal.

2. R v Immigration Appeal Tribunal and Surinder Singh ex parte Secretary of State for the Home Department, [1992] ECR I-4265, was a fact-sensitive decision founded on two connected principles: the effective enjoyment of Treaty rights and non-discrimination. The rule protects a Union citizen from obstacles which may deter the exercise of free-movement rights, including obstacles arising from the refusal of residence to a qualifying family member on return to the citizen’s Member State of nationality.

3. Those principles did not assist this appellant. His uncle travelled from the United Kingdom to Belgium and returned without him. The uncle exercised and enjoyed his Treaty rights without interference. Refusal of the appellant’s residence application therefore created neither deterrence to the uncle’s exercise of those rights nor discriminatory treatment.

4. The Tribunal declined to treat Surinder Singh as establishing a broader, free-standing principle of residence. It stated that the coexistence of that decision with Directive 2004/38/EC and the domestic Regulations may raise questions under primary Treaty law, but reserved them for a future case.

5. Secretary of State for the Home Department v Cain, [IA/40868/2013], had no bearing on the appeal. On the Tribunal’s understanding, the relevant exercise of Treaty rights was absent in that case. Its observations concerning durable partners and regulation 9 could not determine this materially different case.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and affirmed the First-tier Tribunal’s decision.
• First-tier Tribunal: dismissed the appellant’s appeal against the refusal of a residence card. No citation is stated in the judgment.