In the 1992 case of Surinder Singh (Case C-370/90 The Queen v Immigration Appeal Tribunal et Surinder Singh, ex parte Secretary of State for Home Department), the ECJ ruled that when EEA nationals work or are self-employed in another Member State, that on return to their own country they will be entitled to the same community rights, without discrimination, as any other EEA national. In particular, reference was made to the entitlement of ‘family members’ to join the EEA national on their return to their own country.
The significance is that ‘family members’ including a spouse can rely on their right in EC Law to join you in your own country. It is EU Law which regulates your spouse’s entry, not member state national immigration rules.
The reason that the couple decided to exercise their treaty rights does not matter. It only matters that they were exercising treaty rights. The case of Adrich in 2003 (Case C-109/01 Secretary of State for the Home Department v Hacene Akrich) reiterated the decision in Singh, and is explicit in saying:
Where the marriage between a national of a Member State and a national of a non-Member State is genuine, the fact that the citizen of the Union installed him or herself in another Member State in order, on their return to the Member State of which he or she is a national, to obtain for his or her spouse the benefit of rights conferred by Community law is not relevant to an assessment of their legal situation by the competent authorities of the latter State.
Both rulings have legal effect in all EU countries, including the UK and Ireland. National governments are very aware of the results of these cases, and seem to have implemented it for the most part.
An “Ad-Hoc” comparison of National Law vs. European law and Directive 2004/38/EC was compiled by the European Migration Network trying to answer the following:
The Research section of the Belgian Immigration Department would like to have a better view on the situation in the other Member States. They have the following query:
‘Do family members of a national of your Member State have the same/less/more rights than family members mentioned in Directive 2004/38/EC’? In case of differences in the rights, please provide details.’