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.’
A couple of other articles are interesting and relevant to this discussion:
- What counts as working for the purposes of EU free movement
- A BBC New article entitled: The Britons leaving the UK to get their relatives in
freedom of movement in the EU 
Comments
The Singh case has been interpreted by the European Court of Justice in the Akrich (C-109/01) and Jia (C-1/05) cases.
http://europa.eu.int/eur-lex/lex/LexUriServ/LexUriServ.do?uri=CELEX:62005J0001:EN:HTML
http://europa.eu.int/eur-lex/lex/LexUriServ/LexUriServ.do?uri=CELEX:62001J0109:EN:HTML
The UKvisas DSP (21.4.8 Surinder Singh cases) says that this ruling applies when the EU national was exercising economic treaty rights. This suggests working or self-employed is the only option
I find this information most interesting. I am a British Citizen ( also by birth ), whose Brazilian/ American wife is currently applying for a Settlement Visa ( we have already paid 685 Euro through WorldBridge and forwarded an aplication and her US Passport ). We have been legally resident in Italy for six years with Sogiorno. We are retired and and are in the final stages of selling our Italian house , and are in process of buying a house in Bristol, England. We also seem to fall between a number of “cracks”, in the British settlement form, because there is no category for “retired” or for people moving from one EU jurisdiction to another, and “in process” of buying property . We are also informed that when and if my wife gets her settlement visa she will have to pay another 500 GBP for permission to stay permanently after two years. Some of this was a surprise given our familiarity with the Italian system. In is lucky that my wife is a dual national with two passports or she would be “stuck” and would not be able to travel ( typically we are told the visa takes upwards of three months ) . We were also informed that we couldn’t leave a British phone number to be called when they decide the date or my wifes interview at the British Embassy in Rome, ( she will actually fly back for this interview since we close on our Italian property at the end of November ).
http://www.immigrationboards.com/viewtopic.php?t=94675&start=0 is important case law from the UK. Singh based return to the home member state can happen even when there is a long gap between when the EU citizen stops working in the host member state and when they return to their home member state.
http://www.bbc.co.uk/news/uk-23029195 is an interesting article about using Singh to move to the UK