Draft EU Rules Could Close Surinder Singh Route To Desperate Families banner


Draft EU Rules Could Close Surinder Singh Route To Desperate Families

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- By Teni Shahiean of OTS Solicitors

Spouses and families who have been separated by the draconian minimum income requirements for a UK spouse visa imposed by the Conservative Government in 2012 face more heartache as draft EU rules threaten to close off the Surinder Singh route for desperate people wanting to live as a normal, married couple.

The draft of a deal created by the European Commission, designed to keep Britain in the EU contains a paragraph which appears to close the well-known loophole agreeing “to exclude, from the scope of free movement rights, third-country nationals who had no prior lawful residence in a member state before marrying a union citizen or who marry a union citizen only after the union citizen has established residence in the host member state”.

The draft deal also says member states should be able to use the “abuse of free movement rights” as a reason to deny a visa if the couple “had the purpose of evading the application of national Immigration rules”.

This article provides an overview of the Surinder Singh route which provides a beacon of hope for spouses and families who are unable to meet the spouse visa income requirements and examines whether or not the Government will be able to enforce any such changes.

The Surinder Singh Route

The name Surinder Singh Route is derived 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 [1992].

The case involved an Indian citizen Mr. Singh, who worked for many years in Germany with his wife who was a British citizen. After moving to the UK, the couple subsequently divorced. The UK Immigration authorities decided to cut short his limited leave to remain and asked him to leave the country. Mr. Singh challenged this decision in the UK courts, and they referred the matter to the European Court of Justice to decide on the issue; ‘did Mr. Singh have 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.

Regulation 9 of the Immigration (European Economic Area) Regulations 2006, incorporates the Surinder Singh route into UK domestic law. Brought in by an amendment to the legislation in 2014, it is designed to curb the scope of the Surinder Singh route.

If a non-EEA spouse wishes to return to live in the UK with their UK spouse, under Regulation 9 three conditions must be met:

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

b) 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

c) The centre of the British citizen’s life has transferred to the EEA State where they lived and worked.

Regulation 9 needs to be seen in the context of the recent Court of Justice of the European Union (CJEU) case, O & B v Minister voor Immigratie Integratie en Asiel, which clarified the scope of the Surinder Singh judgment. The Court held that all EU citizens who reside in other member states exercising their rights under European law are entitled to have their family members join them in their home state on return. This clarifies the scope of Surinder Singh, e.g., the UK’s EEA Regs 2006 provide that this applies to workers and the self-employed only. A period of genuine residence for just over three months is required for the rules to apply, and the person’s family life with the non-EEA national must be created or strengthened during that period. However, the Court explicitly cautioned that these rules cannot be abused.

It can be argued that Regulation 9 of the Immigration (European Economic Area) Regulations 2006 are stricter than what is required by EU law and may not withstand legal challenge. The requirement in the Regulations that a person must have moved the ‘centre of their life’ to the other member state would appear to set the bar too high—given that the CJEU has said that if an EEA national has spent three months or more residing in another EEA state in line with their EU law rights to do so, then they have the right to bring family members back to their home state on return. There is no requirement that the ‘centre of their life’ has shifted.

However, the Court’s reiteration of the abuse provisions does muddy the waters somewhat, and if applications are refused on the basis of abuse, it is likely that any subsequent challenges will focus on whether the relevant residence in the host member state was ‘genuine and effective’.

Could the Draft EU Rules be Effective in Stopping Spouses Joining their UK national Spouse on Return to the UK?

The part of the draft which attempts to close the Surinder Singh route appears under, ‘clarifications’ not treaty change. Because the Surinder Singh route is a right that is provided by an EU treaty, any attempt to deny the right of free movement could be successfully challenged.

There is also the question of balancing the principle of free movement and preventing abuse of EU treaty rights. When delivering the judgment in Surinder Singh, the EUCJ stated that:

‘A national of an EU member state might be deterred from leaving his country of origin to pursue an activity as an employed or self-employed person in another member state if, on returning to the member state of which he was a national in order to peruse an activity there as an employed or self-employed person, the conditions of his entry and residence were not at least equivalent to those which he would enjoy in the territory of another state.

He would in particular be deterred if his spouse and children were not also permitted to enter and reside in the state of origin under conditions at least equivalent to those granted them by Community law in another member state.’

Therefore, if the draft clause was to close the long-accepted Surinder Singh loophole, and Britain remained in the EU, (or as part of exit negotiations chose to continue to abide by the principles of free movement within the EU), then it would be difficult to see how such a clause could be reconciled with the logic applied in the Surinder Singh case itself.

We await developments with interest and will provide additional information as it comes to hand.

At OTS Solicitors, we are experts in managing applications and appeals for Spouse, Civil Partnership and Unmarried Partner visas and advising on the Surinder Singh route. Our solicitors are regarded as some of the best Immigration lawyers in the UK, and we have an excellent record of successfully managing UK spouse visa applications.

If you wish to talk to us about your situation, please phone our London office on 0203 959 9123 to make an appointment with one of our Immigration specialists.

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