Those of you that have kept up-to-date with the recent immigration news or are in the process of trying to bring their foreign Non-EU Spouse into the UK , would have possibly heard of the so called EU Family Route or ‘Surinder Singh’ route. This is a route that is becoming an increasingly popular (or necessary) option for Britons who seek to reunite with their spouse having fallen foul of the current immigration rules.
Why EU Route?
In case you haven’t been in the loop on what is happening; say you are a British national and have just gotten engaged to a non-EEA national. Well… congratulations first of all, and second, I hope you have a very good job, as you will need one.
Last year, 9th July 2012, the Home Office introduced major changes to family migration rules. Most notable of those changes was the income threshold (18,600 p.a.), which was set so high that it is reported that 47% of British people would not qualify to live with their spouse, if their spouse were a non-EEA national.
What is depressing about this rule, is not only the lack of a common sense approach by the Secretary of State, by failing to consider the non-EU spouses earning capacity (it doesn’t matter if the spouse is a surgeon and would get a job here with ease), but the fact that they only apply to Brits and not to EU nationals in the UK. In other words if you’re an EU national, say French or Polish, you are allowed to marry and stay with anyone from around the world with no financial requirements or proof of accommodation necessary. To get around this financial requirement, some people have been choosing to apply instead for an EU family permit
Benefit of EU family permit
To sum-up the benefits of the EU family route over normal UK immigration laws: there is no legal requirement for an EEA Family Permit application to be accompanied by pay slips, bank statements, reference letters, tenancy agreement e.t.c
Rights As an EU/EEA national
By virtue of EU Law (EC Directive 2004/38/EC, which is incorporated into UK Law by the Immigration (European Economic Area) Regulations 2006), an EEA National has the right of entry to another EU member state. This includes the initial right of residence of up to three months, during which there are no conditions. There is a further right to stay in any EU country provided someone is exercising his or her Treaty Rights.
A EU National is said to be exercising Treaty Rights when he enters another country and is either
- A job seeker
- Self sufficient
- A student,
- Is self employed.
A person exercising Treaty Rights is referred to as a qualified person.
Although not compulsory, someone exercising Treaty Rights is entitled to a family permit confirming this and automatically gains Permanent Residence if he has been exercising Treaty Rights for 5 years in that country.
Spouse/Family members of the EU National
Family members of the EU National exercising Treaty Rights i.e. a spouse or civil partner, also should be granted a Resident Card on the basis that their spouse is a qualified person. This usually grants them an initial probation period of 5 years, before Permanent Residency is granted. They have the right to work and can live in the country provided they are with the EEA National who remains a qualified person.
Any such visas or Family Permits issued under this directive, unlike under individual country’s immigration rules, are not subject to any requirements of income or production of supporting documents. The only documents required are a valid passport / identity card issued by the EU state, proof that the EU National is a qualified person and proof that the person accompanying the EU National is a family member, e.g. by showing a marriage certificate. This EEA Residence/Family Permit is usually free (although since 1 July 2013 the Home-Office are charging a fee of £55 – still a bargain compared to the normal spouse visa).
But as a British national, am I not also not an EU/EEA national?
So why can’t I be treated as an EU national, I am a British national and UK is part of the EU, Right? Well… not so fast, for you to be said to be exercising treaty rights under the EU law one needs to leave his own country to activate this right. In other words, you can not be said to be exercising treaty rights in your own country…unless, you are doing it the Surinder Singh way
The principle of the Surinder Singh Case
In a leading case (Surinder Singh Case C-370/90) decided by the European Court of Justice (binding for all EU member states), the court held that when an EEA National works or is self employed in another member state, that on their return to their own country, they would be entitled to the same community rights, without discrimination, as any other EEA National.
The court was keen to point out the fact that this meant that family members such as a spouse, who resided with them in another member state as they exercised their Treaty Rights, could join the EU National on return to their own country. In other words, should a Brit choose to go and work in another EU country (say Ireland – very popular now), and both you and your husband apply for a Family Permit / EU residence card, on return to the UK, it is EU Law which regulates your husband’s entry, and not the UK Immigration Rules.
Not conditional on pre-lawful residence or the place of the wedding
This residence in another country does not have to be lawful, as held in the case of Metock and Others vs Ireland (Case-C 127/08). The right of entry is not conditional of pre-lawful residence in another member state. This is irrespective of when and where the marriage took place, what type of visa the person holds and of how the spouse entered the member state.
Does the reason for moving abroad matter?
As a point of emphasis, in the case of Akrich 2003 (Case C-109/01 SSHD v Hacene Akrich) the court reiterated the decision reached in the Singh case; the court also held that the reason that a couple decided to exercise their Treaty Rights doesn’t matter. In fact it held that, provided that the marriage between the non EU and EU National was genuine, it did not matter that the only reason that the EU National chose to exercise their Treaty Rights was to activate their EU rights for the purposes of returning with a non-EU citizen to their home country. ….you can imagine the entry clearance officer’s frustration !
So…All smiles at the border?
Not so fast mate …. Legally your return to the UK with your Non –EU spouse as a person who has been exercising their treaty rights should be smooth, especially if you and your spouse have an EU/EEA residence card. However, due to the ignorance of some border official you may be stuck at the border for a while as they try to check with their superiors what to do about you.
Do I Need a Visa?
It was held by the ECJ in C-459/99 (MRAX vs Kingdom of Belgium), that a key right derived from Article 3 of Council Directive 68/360/EEC for non-EU family members of EU citizens is the right to travel together with their EU family members to any of the EU member states, even if they do not have the required visa. However, according to the Home Office, your non-EEA spouse should apply for an EEA application family permit before embarking on a journey with you to the UK. You should thus expect grief if you show up at Dover without one, besides you will find it difficult to board any plane without a valid visa especially if your non-EU spouse is a visa requiring national.
The recent immigration rules have left many couples with no option but to leave their country or look for alternative options. This route is one of the popular options at the moment but please be warned it is not for everyone. It is especially difficult for those with young children, those with jobs in the UK as they risk loosing their UK job in the process, or those in retirement and not looking to get back to work or relocate away from the family. Also, unlike a holiday, you will need to either work or be self employed to use the Singh route – which is a bit tricky in this collapsing euro zone.
Pre departure advice
However, this route is still an option, especially for the young and adventurous. And just like a gap year trip, it is important that you do you homework before you leave the UK. Start applying for jobs while you’re here, network with others already in the place you’re going to and have your exit strategy in place. And most of all, although you’re saving on the spouse application fees, please get a good immigration solicitor to guide your through – trust me, it is worth having a lawyer on hand. This is so that when your Non- EU spouse, waving their EEA family residence card, gets to Dover and meets an overzealous UKBA officer who is refusing entry on the basis that you’re a UK national and UK laws apply, you can call your lawyer and pass the phone to them so that your lawyer can ‘politely’ remind them of the law.
Current Law position
Currently the Home Office is due to release a statement on the family migration rules in light of a recent ruling ( MM and Others Vs SSHD) and its hoped that the more common sense approach suggested by the judge would be used in reviewing individual cases. We await with baited breath to hear from the Secretary of State regarding how much of the recommendation they will take on board. There is a possibility that they may go easy on some one the applicants who don’t meet the income threshold but whose individual case merits to be granted leave outside the rules (see my previous Post). I shall keep a close watch on what happens and post an article once the Home Office releases a statement.
I shall be analyzing this issue more closely, looking specifically at: How long would a Brit have to exercise their treaty rights in another country before coming back to the UK under the Singh principle?
If you are affected by any of the Spouse visa changes, are an EU national married to a non-EU national, or are a Brit looking to use the EU family route, please feel free to give me a ring on my mobile 07544669131 or contact me via Skype.