Exotic residence rights: “Return cases” of Germans with permanent freedom of movement rights and their families (“Surinder Singh route”)

Many mysteries surround the so-called "return cases" or the so-called "Surinder Singh route," some of which will be clarified in this blog post. These return cases involve the following scenario: A German citizen lives in another EU member state, utilizing the EU's freedom of movement , marries a third-country national there, and subsequently returns to Germany. Under certain conditions, the third-country national spouse then acquires a right of residence in Germany derived from EU law—not under the German Residence Act (AufenthG), but directly from EU law ( Article 21 TFEU ).

Idea and origin of the return case

The concept of "return" is not explicitly defined in law, but rather a judicial construct of the European Court of Justice (ECJ ). It essentially stems from the landmark decisions "Surinder Singh" (1992) , "Eind" (2007), and later "O. and B." (2014). The basic idea is simple yet far-reaching: freedom of movement should not be undermined by placing a Union citizen in a worse position upon returning to their home country than in other member states. A German national who has actually exercised their right to freedom of movement under Article 21 TFEU in another EU member state should not lose their family status established there upon returning to Germany. Otherwise, their return would effectively penalize them – and this directly contradicts the purpose of freedom of movement. According to the Singh ruling, in these cases a German citizen may bring their third-country national family member to Germany without the third-country national having to meet the (normally required) conditions of the Residence Act ( family reunification / spousal reunification ) (in particular, no language skills are required in return cases ). These return cases are thus closely related to the parent-child situations under Article 21 TFEU , which share the same underlying principle.

Requirements for return to the Surinder Singh route

The creation of such a derived right of free movement under Article 21 TFEU is, however, subject to certain conditions . In particular, the German national must be sustainably integrated into the EU country and have made use of their EU freedom of movement there . Not every short stay abroad is sufficient. The ECJ requires genuine, effective integration into the host state. This means, in particular, that the German national must have actually lived in the EU country. Furthermore, they must have been entitled to freedom of movement there, e.g., as:

• Employees,

• self-employed,

• Student with sufficient means,

• or non-employed person with a secure livelihood,

A mere "formal registration" or residence is not sufficient. Case law explicitly refers to "actual residence with integration potential." The marriage to the third-country national may have existed either during this residence or even beforehand – the crucial factor is that family life was genuinely lived in another EU country .

Legal consequences and scope of return case / Surinder Singh route

In cases of return to their country of origin, the right of residence of the third-country national arises directly by virtue of EU law . It is therefore not "granted" by a German administrative act, but exists as soon as the requirements are met. The subsequent residence card serves only as formal confirmation of this already existing right (so-called declaratory effect ). The legal basis is Article 21 TFEU in conjunction with the Citizens' Rights Directive 2004/38/EC and the relevant case law of the European Court of Justice, in particular since the "Surinder Singh," "Eind," and "O. and B." rulings . These principles are implemented in Germany through the Freedom of Movement Act/EU , which is applied accordingly in cases of return, even though the German spouse formally resides in their own country of origin.

The derived right of residence is particularly far-reaching in terms of content , as it is not a right of residence under the German Residence Act (AufenthG), but rather a right of free movement under the Freedom of Movement Act/EU (FreizügG/EU). The third-country national receives a full EU-law right of residence in Germany with free access to the labor market. Traditional hurdles of national residence law, such as language tests for spousal reunification, are not required. Termination of residence is also only possible under strict EU law conditions, meaning that protection against deportation is significantly stronger than under the Residence Act.

This legal framework has significant consequences for the administration. In cases of return to the country of origin, the immigration authorities no longer have any discretion but are obligated to recognize the right of residence. National instruments of migration law are inapplicable here because they would unduly restrict the freedom of movement guaranteed under EU law. Precisely for this reason, unlawful rejections repeatedly occur in practice, requiring judicial review. Return cases thus serve as a particularly clear example of how strongly and directly EU law impacts German immigration law.