Dear Sir,

Thank you for getting in touch with Your Europe Advice.

We understand that your query relates to having to prove whether you fall under the scope of application of the Surinder Singh case, in relation to your wife as the spouse of a UK citizen returning to the UK, where you live together in Germany, and where you have both resided in Germany for approximately 9 months.

Your wife is an Israeli citizen and she now hold a Residence Card issued by the German authorities by virtue of Article 10 Directive 2004/38 (as the spouse of an EU citizen).

Subject to the comments made below with respect to the application of Article 5 paragraph 4 Directive 2004/38, which is transposed under UK law, your wife is advised to process a UK entry visa, under the UK transposition of the Surinder Singh caselaw.

Also note that we focus in this post on the admission into the UK, not residence. Once in the UK, we invite you to send us a follow up query concerning residence in the UK under the Surinder Singh caselaw.

Note also that the UK does not recognize the application of the visa exemption under article 5 paragraph 2 Directive 2004/38, given that you are a UK citizen. The family members of UK citizen cannot rely on the visa exemption under the provision cited above, according to the 2006 EEA Regulations. This is the case even though by way of exception, the German residence card held by your spouse could be used by way of reliance upon the visa exemption by virtue of Article 5 paragraph 2.

1. Entry in the UK without a UK Visa: Article 5 paragraph 4 Directive 2004/38.

As an Israeli citizen, your wife is not required under UK law to process an entry visa, where she intends to visit the UK.

Under EU law, your wife may be entitled to rely on Regulation 11 of the EEA 2006 Regulations, which precludes UK immigration officers to deny your wife entry in the UK, provided she is able to demonstrate that she falls under the scope of EU free movement rules (see below for more details).

Regulation 11 of the EEA Regulation transposes Article 5 paragraph 4 of Directive 2004/38 which provides:

4. Where a Union citizen, or a family member who is not a national of a Member State, does not have the necessary travel documents or, if required, the necessary visas, the Member State concerned shall, before turning them back, give such persons every reasonable opportunity to obtain the necessary documents or have them brought to them within a reasonable period of time or to corroborate or prove by other means that they are covered by the right of free movement and residence.

The evidence that your wife is required to produce in this case is as follows:

She is married to a UK citizen (marriage certificate, and ID card or passport for your or certified copy of the same),
That you are both returning to the UK, immediately following a period of residence in Germany
That you have cohabited in the other Member State in question, prior to your return to the UK,
That you have exercised your rights of residence in the other Member State in question, by engaging in an economic activity as a self employed person,
And
That you have shifted your centre of life from the UK to Germany, by reference to the amount of time spent in Germany, by reference to the fact that your principal place of residence is in Germany, and by reference to the measure of integration within German society.

Where your wife is able to prove each and every point listed above, your wife is entitled to seek admission into the UK under Regulation 11 of the EEA 2006 Regulations notwithstanding the lack of an EEA family permit (Regulation 11 transposes the terms of Article 5 paragraph 4 Directive 2004/38);

As a result of which the UK Immigration Officer has limited discretion to refuse you entry, by virtue of Article 5 paragraph 4 Directive 2004/38 (as transposed under Regulation 11 of the EEA 2006 Regulations).

Given the facts and circumstances related in your post, we are not able to conclusively assess to what extent you may be able to satisfy the requirements for admission into the UK by virtue of Regulation 9 of the 2006 EEA Regulations, albeit we infer that you are in a position to prove the same, given the length of residence in Germany.

Directive 2004/38 has been implemented under UK law by virtue of the 2006 EEA Regulations:

The Immigration (European Economic Area) Regulations 2006