In March 2019, the UK will officially leave the European Union (EU) and the European Economic Area (EEA). Top immigration law firms in London have been inundated with people who are concerned about their right to reside in the UK after Brexit and whether they can bring family members into the country in the future.
One of the most controversial immigration paths that will end when Britain leaves the EU is the Surinder Singh route.
immigration solicitors advising applicants on UK Spouse and Partner visas are often required to give advice on the Surinder Singh route and whether it is the best option to take if certain visa criteria, such as the Minimum Income Rule, cannot be met.
This article is designed to provide an update on the Surinder Singh rule, explaining clearly what it is and the UK Home Office’s requirements for entry to the UK under this path. Our immigration lawyers have had many calls from British people wishing to apply for Irish Citizenship, so they have the best chance of retaining their EU Citizenship after Brexit. This article may be of particular interest to them, regarding whether their family members can retain EU Citizenship the Surinder Singh route.
What is the Surinder Singh Route?
The name Surinder Singh comes from the European Court of Justice ruling in the case of R v immigration Appeal Tribunal and Surinder Singh ex parte Secretary of State for the Home Department .
Briefly, the facts of this case are as follows:
Mr. Singh was a citizen of India who worked for many years in Germany with his wife who was a British citizen. When they returned to the UK, the couple divorced. The British immigration authorities decided to cut short his limited Leave to Remain and planned for his administrative removal. Mr. Singh challenged this decision in the UK courts, who referred the matter to the European Court of Justice to decide whether Mr. Singh had a right to remain in the UK under EU law.
The EU Court decided that Mr. Singh was entitled to reside in the UK on the basis that his wife had exercised her right to free movement by working in Germany. This entitlement is an absolute right under the same rules that govern the EU right to free movement and as such overrides the domestic law of the UK.
The Court reasoned its decision on the fact that freedom of movement must involve the right for an EU national to return to their EU country of origin, otherwise, citizens would be discouraged from moving between member States.
What is the significance of O and B v The Netherlands ?
The case of O and B v The Netherlands set out significant guidance on how the Surinder Singh rule should be applied.
Although the Surinder Singh case was not mentioned in the judgment, O and B v The Netherlands rewrote the requirements under Surinder Singh route.
The new guidance can be summarised as follows:
- To rely on the principles of the Surinder Singh route, the couple must reside in their country of choice for at least three months, and one partner making weekend or holiday visits will not count
- During the period of residence, family life must have been created or strengthened
- Abuse of the principle will not be tolerated, and it is for each member state to decide whether such prior residence in a host member state is genuine
Regarding abuse, the case stated:
“the scope of Union law cannot be extended to cover abuses… Proof of such an abuse requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the European Union rules, the purpose of those rules has not been achieved, and, secondly, a subjective element consisting in the intention to obtain an advantage from the European Union rules by artificially creating the conditions laid down for obtaining it.”
How has the British Government applied the requirements under the Surinder Singh route?
Regulation 9 of the immigration (European Economic Area) Regulations 2016 currently sets out the UK Government’s official interpretation of the Surinder Singh route.
It states a residence card will be issued to a direct family member (spouse, partner and/or children under the age of 18 years) if:
- the British citizen exercised free movement rights as a ‘qualified person’ in an EEA host country just before coming back to the UK, or had acquired a Permanent Residence Card 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 British citizen lived together in the EEA host country, and their relationship was genuine, and
- the couple did not reside in the EEA host country with the aim of circumventing UK immigration rules.
How does the Home Office decide if a couple is ‘genuine’?
Under Regulation 9, factors to be considered in assessing whether the residence is genuine include:
- if 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 is or was the British citizen’s principal residence;
- the extent to which the family member and British citizen integrated into the EEA State;
- whether the family member’s first lawful residence in the EU was with the British citizen in the EEA State
The ‘centre of life’ test is very controversial and has no basis in EU law. Aside from entering a marriage of convenience (which is outright fraud), the motive for exercising Treaty rights is irrelevant under EU law.
In 2014, the EU said it was investigating the UK for adopting rules that are not compliant with EU law. However, now Article 50 has been triggered, it is likely not much will come of this.
Whilst the UK is still a member of the EU, the Surinder Singh route applies, as long as the criteria set out in Regulation 9 of the immigration (European Economic Area) Regulations 2016 are met.
Maintaining EU nationality after Brexit
Although not directly related to the Surinder Singh case, many UK citizens are seeking advice from top London immigration solicitors about the best way to obtain an Irish passport. You might be entitled to Irish citizenship if your parents and/or grandparents were Irish nationals.
If you are a British national entitled to Irish Citizenship, you may still maintain your EU rights. This means you and your direct family members may be able to move within the EU and your family members could obtain Permanent Residence of a host member State, as long as you show you have been exercising your Treaty rights for five years.
The world of Brexit seems to become more complex by the day. The best way to secure the residency rights of you and your family is to contact an experienced immigration lawyer who can assist you with residency and visa matters.
OTS Solicitors is one of the most respected immigration law firms in London. Our immigration team would be happy to talk to you about applying for a Spouse, Partner or Fiancé Visa and answer any questions regarding the Surinder Singh route or applying for Irish Citizenship.
By making an appointment with one of our immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today.
If you wish to discuss any of the points raised in this blog, please phone our London office on 0207 936 9960.
For the best expert legal advice and outcome on your UK immigration application, contact OTS immigration solicitors on 020 7936 9960 or contact us online.
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Posted on: Friday, 18 August, 2017