Benjamin & Anor, R (on the application of) v Secretary of State for the Home Department

A person relying on the Surinder Singh principle must prove that the British citizen genuinely exercised qualifying EU rights in another Member State and that the exercise was sufficiently proximate to the return to the United Kingdom. Registration as self-employed, or possession of a residence card, does not by itself establish those matters. Border officials may verify whether the substantive EU-law conditions for entry are satisfied, although they may not impose an additional visa requirement on a person holding a valid Article 10 residence card. The time reasonably required to investigate a complex claim is lawful. A later successful application, supported by substantially fuller evidence, does not retrospectively invalidate an earlier refusal made on the evidence then available.

The claimants challenged refusals in November and December 2013 to grant Mrs Benjamin, a Kenyan national and spouse of a British citizen, an EEA family permit or entry clearance. They relied on regulation 9 of the Immigration (European Economic Area) Regulations 2006 and the Surinder Singh principle, asserting that Mr Benjamin had exercised Treaty rights while living in France.

The claims were initially stayed while related statutory appeal and CJEU proceedings were concluded. The defendant later granted Mrs Benjamin an EEA family permit and residence card, but the claimants continued to seek judicial review remedies and Francovich damages. The issues were whether the 2013 refusals were lawful, whether a residence card removed the need to establish the underlying right of entry, and whether the December refusal involved unlawful delay.

1. Claims dismissed. The defendant was entitled to refuse the applications on the evidence available in 2013. The burden lay on the claimants to establish entitlement to a Surinder Singh right of residence. The officials gave them a reasonable opportunity to provide documents or other proof, as required by Article 5(4) of Directive 2004/38/EC and regulation 11(4) of the Immigration (European Economic Area) Regulations 2006.
2. Registration as self-employed did not prove genuine and effective self-employment. The evidence showed little or no economic activity after 2010, and the work relied upon was insufficiently proximate to the return to the United Kingdom in 2012. Regulation 9 therefore did not apply on the evidence presented.
3. The later decision to grant an EEA family permit did not make the earlier decisions unlawful. The later application was supported by substantially more material and had to be assessed separately.
4. O & B confirmed that the principle could extend beyond work to qualifying residence based on self-sufficiency or permanent residence. It did not remove the burden of proving the relevant conditions, and possession of a residence card was not conclusive. Permanent residence under Article 16 required five years of legal residence satisfying the qualifying conditions in Article 7.
5. Under McCarthy, a valid Article 10 residence card could not lawfully be replaced by a requirement to obtain an EEA family permit. However, Article 1 of Protocol No 20 authorised verification of the authenticity of documents, possible fraud, and whether the person in fact fulfilled the EU-law conditions for entry. The officials were therefore entitled to investigate the asserted permanent residence and the underlying qualifying activity.
6. The approximately ten-hour investigation at Calais was not unreasonable. The claimants presented a complex and previously refused claim requiring separate interviews, examination of documents and senior authorisation. The delay was lawful.

• High Court (Administrative Court): the two judicial review claims were transferred from the Upper Tribunal, consolidated and stayed pending statutory appeal and related CJEU proceedings. The claims were ultimately dismissed.