The Surinder Singh immigration route, in simple terms allows British citizens to reunite with their family members in the UK. This has been used as an outlet for families after the toughening of immigration rules in July 2012, which let to an increase in the number of families that where split up from each other.
Background of Surinder Singh
The Surinder Singh European case (C-370/90), established that the right of a person under European Law has the right to move to a Member state and therefore must have the right to return. This is to prevent any deterrence from fear of being unable to return to their home country. This places this free movement into European law and away from and domestic law of any EU Member State.
Further impacts of European Case Law on the British immigration system can be seen in O and B v The Netherlands case in March 2014. This case set out a number of significant guidelines which include:
- A genuine residence period of at least three months is required in the Member State
- Weekend visits and holidays do not count as residence for this purpose
- Any citizen of the Union can potentially benefit from this right, not just workers and the self employed
- Family life must be created of strengthened during this period of residence
- Abuse is impermissible
- EU law states that the intention behind exercise of treaty rights is irrelevant and abuse requires the accuser to prove both that the rules for a right are not met and that there is deliberate intention to make it appear falsely as if the rules were satisfied.
British Surinder Singh regulations:
The UK Governments interpretation of the effect of Surinder Singh was set out in November 2016 replacing the old set of regulations from 2006. These regulations are:
- The British citizen must have exercised free movement as a worker, self-employed or self-sufficient or student in an EEA host country or had acquired the right of permanent residence in the host country.
- The British citizen would satisfy the conditions for being a qualified person if they were an EEA national
- When residing together in another EEA member State, the residence must have been genuine
- The reasoning for residing in another EEA State was not for circumventing the UK immigration system
- The family member was a family member for all or part of the joint residence (Incorporated in 2018)
- The family life must have been created or strengthened during this residence (Incorporated in 2018)
The factors that the UK require for residence to be considered genuine include:
- Whether the British citizens life transferred to the EEA State
- The length if the joint residence
- The nature and quality of the family member and British citizens accommodation and whether it was the British citizens principle residence
- The degree of the joint residence’s integration into the EEA State
- Whether the family members first lawful residence in the EU with the British citizen was in the EEA State
Most of these factors such as the transfer of life into the EEA State where not found in the Surinder Singh case or with the O and B v The Netherlands case. Therefore, it is not compliant and will need to be amended, however this happening before Brexit is unlikely.
Length of residence:
Following the O and B v The Netherlands case a three-month period was established, there is no suggestion that any longer period is required. However, the Home Office guidance does suggest that the longer the joint residence the more likely it was a genuine residence.
Although principle residence is not a requirement in EU Law, the regulations set out by the Home Office look for the nature and quality of the accommodation. It is suggested that mortgaged or long term rented accommodation is an indicator of genuine residence, rather than living at a hotel, Bed and Breakfast or short stays with friends.
Degree of Integration:
Again, there is no mention of the degree of integration into a member state in European Law, nevertheless the Home Office have suggested that most refusals are due to this factor.
The Home Office have set out guidance for officials to determine whether the residence was genuine through integration:
- Did the family have any children living or born in the Member State, if so did they attend school or were involved in the local community
- Were there any other family members living or studying in the Member State and were they involved in the local community
- How did the family member spend their time in the Member State?
- Have they immersed themselves in the life and culture of the Member State:
- have they bought property there?
- do they speak the language?
- are they involved with the local community?
- do they own a vehicle that is taxed and insured there?
- have they registered with the local health service, a general practitioner (GP), a dentist etc?
European Union Law have two categories which recognise what a family member is, this includes ‘Direct family members’ and ‘extended family members’.
Direct family members as defined as the spouse or civil partners of the British citizen, the direct decedents (under 21 or dependents over 21), dependent direct relatives of either the British citizen or their spouse/partner.
Extended Family member definitions can be found in regulation 8 and are much broader than that of direct family members. This includes those who are in a ‘durable relationship’, a relative or dependent that is a member of the household and a relative who requires serious health care. This only applies to the qualified person unlike the regulations for direct family members.
The issues with EFM’s is the complexity to prove that the person can be recognised under the current regulations. The need for evidence may make it difficult to prove relationships and further restrictions on these regulations such as the need for two years cohabitation for some durable relationships, create problems during the application process.
Until the Banger case in 2018 British citizens seeking to rely on Surinder Singh could only apply for their direct family members to join them in the UK, which excluded any EFM’s. Although this means that EFM’s can come into the UK through the Surinder Singh route, the Home Office or the Regulations have produced guidance inline with Banger. Therefore, any refusals on this point should be appealed.
Family members who were adopted under an adoption order that is recognised in UK law are also included.
Circumventing UK immigration Rules
Although EU law does not include the motive for making use of free movement as an issue, the UK has introduced a ‘Primary Purpose’ rule for Surinder Singh cases.
This prevents the use of Surinder Singh if it had been used as a means for circumventing any immigration laws applying to non-EEA nations to which they otherwise would be subject to.
Potential indicators have been set out by the Home Office:
- Immigration history of the family member, including previous applications and whether they have previously resided in the UK with the British Citizen.
- If they family member has not made an application, they should provide the reason why they did not apply to join the British citizen in the UK
- The timing and reason for the move to the Member State for both the family member and British Citizen
- The timing and reason behind the return to the UK
The Home Office have stated that the use of one point in this guidance can not be used solely for the rejection of an application. Furthermore, the European Courts have stated that the motivation for using free movement rights is irrelevant.
The application process
From 1st February 2017 it is required to use the forms provided by the Home Office, along with the require documentation.
If insufficient evidence is provided to satisfy the genuine residence or circumvention test the following may take place:
- The Home Office will write to the applicant asking for further evidence; or
- The case will be referred to a senior caseworker to consider inviting the applicant to a “credibility interview”; or
- The application will be refused.
The applicant will usually have 10 days to respond to a request for further information, unless a good reason is given.
Credibility interviews are used when written submissions do not provide enough information, failure to attend may guide the officials to a refusal but it cannot be the sole reasoning for a refusal.
You will be asked to provide a number of documentation and evidence to meet the requirements set out by EU law and UK law, these include:
- a valid passport
- 2 passport size colour photographs
- evidence of your relationship to your British family member, such as a marriage certificate, civil partnership certificate or birth certificate
- your family member’s valid passport (or a certified copy if you cannot provide the original)
- a list showing when you’ve been in the UK – include the dates you arrived and left
- a list of any other UK visa or immigration applications you’ve made – include whether you applied from inside or outside the UK, and details of each visa or permission to stay if you were successful
- a list showing any removals, deportations or other immigration penalties you’ve had in the UK
Proof of genuine residence can be done through evidence of having:
- was working, self-employed, self-sufficient or studying in the EEA country where you’ve lived together
- is working, looking for work, self-employed, self-sufficient or studying in the UK (if they returned more than 3 months ago)
This can include wage slips, contracts, bank statements etc.
For more information on the Surinder Singh immigration route or any other immigration matter, contact our legal team on:
T: 028 3026 2200