Surinder Singh Immigration Route for Spouses and Family Members

Welcome to this week’s Immigration blog which follows on from our post last week entitled, ‘Financial Requirements of Spouse Visas Still Dividing Families’. In this post, we will be discussing how you can circumvent the £18,600.00 Immigration Rules requirement threshold to have your spouse join you in the United Kingdom, via what is known as the EEA Surinder Singh Route.

R v Immigration Appeal Tribunal and Surinder Singh ex parte Secretary of State for the Home Department [1992] 3 CMLR 358 ECJ

The case that established the method for British citizens being able to secure a spouse visa for a non-European Economic Area resident partner without having to meet the criteria set out in Appendix FM was R v Immigration Appeal Tribunal and Surinder Singh ex parte Secretary of State for the Home Department.

Surinder Singh, an Indian national, married a British national in 1982. From 1983 until 1985 they lived and worked in West Germany. In 1985, the couple returned to the UK to open a business. Mr Singh was granted limited leave to remain in the UK as the husband of a British national.

In 1987 the couple divorced and Mr Singh’s leave to remain was cut short and he was refused Indefinite Leave to Remain as the spouse of a British citizen. In December 1988, a deportation order was made against him as a foreign national who remained unlawfully in the UK.

An adjudicator dismissed Mr Singh's Immigration appeal against the deportation order. However the Immigration appeal tribunal allowed Mr Singh's appeal, holding that he 'had a Community right as the spouse of a British citizen who herself had a Community right to set up in business in this country'.
On the Home Secretary's application for judicial review of the tribunal's decision, the case was referred to the old Court of Justice of the European Union (now the European Court of Justice).

The principle developed by the ECJ in 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 a person would be deterred from moving in the first place. Therefore, if you chose to move between states in the European Union under the Free Movement of Peoples principle, then European Union law, not domestic law, applies to whether or not family members can accompany you back to your home country.

Therefore, Mr Singh had a right to reside in the UK because he and his former wife had resided in Germany and then moved to the UK. Essentially, EU Immigration law overrode UK domestic Immigration law.

How the Surinder Singh Route is Applied

The Free Movement of Citizens Directive 2004/38/EC

The Free Movement of Citizens Directive 2004/38/EC regulates the rights of citizens from the EEA to move freely between member states.
To be fully covered by the Directive 2004/38/EC, the EEA citizen must be a Qualified person by meet the following criteria:

• They must be working as an employee (this includes looking for work for a reasonable amount of time); or
• working as a self-employed person; or
• studying; or
• retired; and
• be self-sufficient (ie they have enough money and insurances to support themselves)

The non-EEA spouse must apply for a residence permit which is valid for five years.

Incorporation into UK Immigration Legal Framework

The principle established in Surinder Singh was incorporated into British Law by Regulation 9 of the Immigration (European Economic Area) Regulations 2006. Your Immigration solicitor will advise you that in order for a British citizen to return to the UK with his or her spouse or family member, the following three conditions must be met:

1. The British citizen was employed or self-employed in the EEA State he or she resided in;

2. If the family member of the British citizen is their partner, the parties must have been living together in the EEA State or entered into a marriage or civil partnership before the British citizen returned to the UK; and

3. The centre of the British citizen’s life has transferred to the EEA State where he or she lived and worked.

The ‘centre of life’ requirement’s legality was questioned by many commentators when it was first introduced, with some stating it was at odds with the principle in Surinder Singh that EU citizens would be deterred from exercising their free movement rights if they had no right to return to their country of origin accompanied by their spouse or family members on whom EU law conferred a right to reside in the host EU state.

In March 2014 the Grand Chamber of the Court of the European Union set out new guidance for the Surinder Singh principle in the linked cases of O and B v The Netherlands Case C-456/12. Although the case was not mentioned in the judgment, O and B v The Netherlands completely changes the Immigration requirements under Surinder Singh.

Therefore, for the best outcome in your EEA Surrinder Singh type application, your Immigration solicitor must advise you that the new guidance can be summarised as follows:

• In order to rely on the principles of the Surinder Singh rule, the couple must reside in their EU 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 the member state to decide whether such prior residence in a host member state is genuine

As at the date of writing, the Home Office had not amended Regulation 9 of the Immigration (European Economic Area) Regulations 2006 to incorporate the decision of O and B v The Netherlands. Immigration solicitors are watching with interests to see how the new guidance will be interpreted by UK Immigration tribunal and courts and whether or not the ‘centre of life’ test will remain.

You can find out more about EEA Application and who is regarded a family member or extended family member under the EEA Regulations in our EEA Applications section here.

If you would like to speak to an Immigration solicitor regarding the Immigration requirements for your non-EEA spouse to join you in the UK via the Surinder Singh route, please phone our London office on 0207 936 9960 to make an appointment.