Introduction
Recent UK
immigration changes have now made it extremely difficult for the spouses,
partners, children and other family members of British citizens to move to the
UK.
However,
one often overlooked route to legally move to the UK is through what is widely
referred to as the “Judgement in the Surinder Singh case”.
This route
is entirely legal and backed up by EEA regulations and judgements. It cannot be
changed at will by the UK government. Little wonder, that the UK Border Agency
do not provide much information on this route to the UK as it allows family
members in effect to bypass UK immigration.
The Legal Background
Surinder
Singh was a British citizen who moved to Germany to work, under his rights as
an EU citizen. His wife, an Indian citizen, wished to then move back to the UK
with him under EU law – i.e. on the basis that Surinder Singh was already
exercising his EU Treaty Rights in Germany. In a landmark court ruling in 1992,
the European Court of Justice (ECJ) agreed with him and thereby opened up a
whole new world of immigration possibilities.
The basic
principle from the case is that if a British citizen is living in another EU
member state then he / she is entitled to return to the UK under EU Free
Movement Rights and his / her family members are also entitled to enter under
the same Free Movement Rights.
In effect,
by living in another EU member state the British citizen becomes “European” and
has the same rights as say, a German citizen moving to the UK with a non EU
family member.
In a
further case, the ECJ reaffirmed the Surinder Singh judgement and also clearly
stated that it made no difference if the British citizen moved to another EU
member state solely to facilitate a Surinder Singh type return. As long as one
follows the correct process, one’s motive is irrelevant and cannot be
questioned by the UK government.
The most
recent set of EEA Regulations (published by the UK government) give legal
standing to the Surinder Singh judgement.
The regulations state expressly that if the qualifying
conditions are met;
“these Regulations apply to a person who is the family
member of a United Kingdom national as if the United Kingdom national were an
EEA national.”
In order words, the British citizen is treated as an
EEA national.
The Advantages
This route
of entry allows the family member to bypass all the requirements imposed on
family members of British citizens living in the UK.
To keep
re-iterating the point – the family member is now treated as the family member
of an EEA national.
So, the
restrictions of UK immigration law simply do not apply. This means;
·
No
requirement to meet the new financial maintenance criteria introduced in July
2012
·
No
requirement to meet the English language requirement.
·
There
is very little room for the UK Border Agency to question the legitimacy of
relationships.
·
A
wider definition of family members under EEA law than UK immigration (includes
partners, children up to the age of 21 and other dependents such as parents)
·
No
hefty immigration fees to be paid to the UK Border Agency
·
Faster
processing times as required under EU law.
·
A
much more secure legal framework to move to the UK rather than being subject to
whimsical changes imposed by UK politicians.
·
EEA
nationals and their family members are not subject to the “no recourse to
public funds” rule under UK immigration.
·
No
requirement to have a UK employment offer.
The Key Requirements
Step 1
The British
citizen must move to another EU member state. This includes the 28 member
states of the EU itself (not including the UK of course!) and the additional
EEA members (Norway, Lichtenstein and Iceland) and also Switzerland.
The full
list is;
Austria, Belgium, Bulgaria, Croatia, Cyprus,
Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary,
Iceland, Irish Republic, Italy, Latvia, Lichtenstein, Lithuania, Luxembourg,
Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia,
Spain, Sweden, Switzerland.
In order to
qualify under Surinder Singh, the British citizen must then “exercise Treaty
Rights” in that member state. This means being a worker or self-employed. It does not include studying
or retirement or being self-sufficient.
There is no
requirement to earn a certain amount or even to work full-time. The requirement
is to be a genuine worker so part-time, temporary work would suffice.
The ECJ in
the Surinder Singh case stated a minimum period of 6 months is required to be
exercising Treaty Rights in another EU member state. The regulations themselves
do not specify a minimum period but 6 months is still seen as the general “rule
of thumb”.
Most
applications we have processed have been where the British citizen has
exercised Treaty Rights for 6 months. There have been cases where 3 or 4 months
have worked but we still recommend 6 months.
The British
citizen should retain sufficient records of working and of their residence in
the EU member state.
The spouse
or partner of the British citizen should then move to that same EU member state
and live with the British citizen.
However,
the spouse or partner does not have to obtain a full residence visa to live in
that EU member state (although often it is good to do so). However, it is
perfectly possible to enter as a visitor, live with their British citizen
spouse / partner and then apply for entry to the UK.
Step 2
The family
member now needs to apply for a UK visa – or termed an “EEA Family Permit”.
This is the most important part of the whole process – i.e. to ensure the
applicant is categorised as the family member of an EEA national as defined in
the Surinder Singh case.
It is vital
to produce all the right evidence and to specifically address the Surinder
Singh case in your application.
Normally,
family members of British citizen cannot apply under EEA law. So, make sure the
application is very specific in highlighting the Surinder Singh case and this
is the category that one is applying under.
The
application is usually made to the British Embassy in the EU member state that
one lives in. Processing times vary but 3 weeks is the normal maximum time it
takes. Some applications can be approved in a few days, if prepared properly.
If
approved, the EEA Family Permit will be issued for 6 months and state that the
applicant “MRS NAME” is the EEA Family Member of “MR NAME”.
Congratulations
– you have now successfully used the Surinder Singh case and you are
categorised as the family member of an EEA national. This now defines your
immigration status on entering the UK and how you stay in the UK.
Step 3
After
moving to the UK, an
application is then made for an EEA residence card for the family member. Much
of the key material submitted in the EEA Family Permit application is still
required, together with more evidence after moving to the UK.
An EEA
residence card is then issued for 5 years.
___________________________________________________________
© Tim McMahon 2013
Email tim@commonwealthimmigration.com
See my
Profile on LinkedIn;
http://uk.linkedin.com/in/immigrationadvice
http://uk.linkedin.com/in/immigrationadvice
