The ‘Surinder Singh route’ is a route well known for those seeking to reunite with with family members. The severe strictness brought in by the change in the UK Immigration Rules in 2012, in particular with regards to the minimum income requirements and the complexity of the documentary evidence, has led to many families being separated.
The old case of ‘Surinder Singh‘, from the Court of Justice of the European Union, provides a potential avenue using the currently family-friendly EU laws, rather than the Immigration Rules.
Essentially, the principle established by the Surinder Singh case is that the right in European Union law for a person to move from one Member State to another must include a right to return, otherwise the person would be deterred from moving in the first place. If you are exercising your right to return to your home Member State, you are doing so under European Union law and this applies to spouses also. Free movement laws:
“require a Member State to grant leave to enter and reside in its territory to the spouse, of whatever nationality, of a national of that state who has gone, with that spouse, to another Member State in order to work there as an employed person as envisaged by Article 48 of the Treaty and returns to establish himself or herself as envisaged by Article 52 of the Treaty in the State of which he or she is a national. A spouse must enjoy at least the same rights as would be granted to him or her under Community law if his or her spouse entered and resided in another Member State.”
Regulation 9 of the Immigration (EEA) Regulations 2016 provides a current interpretation for Surinder Singh cases and confirms that residence cards will be issued to direct family members of British citizens where:
- the British citizen exercised free movement rights as a worker, self-employed person, self-sufficient person, or student in an EEA host country immediately before returning to the UK, or had acquired the right of permanent residence in the EEA host country, and
- the British citizen would satisfy the conditions for being a qualified person if they were an EEA national, and
- the family member and the British citizen resided together in the other EEA State and that residence was genuine, and
- the purpose of the residence in the EEA host country was not as a means to circumvent any UK immigration law applying to non-EEA nationals (e.g. the Immigration Rules).
The Home Office view is that if the British citizen in question “genuinely” resided with the relevant family member in another Member State as a worker, self-employed person, student or self-sufficient person, then the British citizen will be treated by the UK government as an EU citizen and can rely on the EEA Regulations.
According to the recent case of O and B v The Netherlands, whether residence is genuine depends on various factors:
- whether the centre of the British citizen’s life transferred to the EEA State;
- the length of the family member and British citizen’s joint residence in the EEA State;
- the nature and quality of the family member and British citizen’s accommodation in the EEA State, and whether it was or is the British citizen’s principal residence;
- the degree of family member and British citizen’s integration in the EEA State;
- whether the family member’s first lawful residence in the EU with the British citizen was in the EEA State.
From February of this year, it has become necessary to submit applications based on the EEA Regulations, using the necessary application forms. Before, applications could be made without forms e.g. using a cover letter enclosing relevant documents.
Call us on 0141 283 0190 or use our contact form today for assistance with your European application, before Brexit comes into force.