Most of you will have seen my previous post-EU Family Route: what is the Surinder Singh Route (see post here...). Some time has lapsed since then and I apologise for the delay in writing the second part of the post, which I hope to tackle here. For obvious reasons, this route has grown in popularity and as one can imagine, the Government does not like it.
The Current Position:
In a nutshell, this route currently allows UK citizens to LEGALLY circumvent the UK Immigration rules on spouse and family members from non-EU countries. The UK citizen may purposefully travel to another EU country, work for a few weeks and then return to the UK with his or her non-EU spouse. This route has become increasingly popular as one can avoid the stringent requirements of the spouse visa including the income threshold, which is out of the reach of many ordinary citizens. It also avoids the cost of the application, as this route is free, and the time granted under the EU laws on entry is normally longer; a 5-year residence card as opposed to the 2 and a half years on a spouse visa.
Why this is inconvenient for the Government:
As we near the elections, the Government has pledged to reduce immigration to appease the Eurosceptic voters. Several areas of immigration law have been tightened, including the family visa rules, but the Government finds that its hands are tied by virtue of being a signatory to the European Convention on the Freedom of Movement.
Of particular annoyance to the UKBA officials must be the fact that whereas the UK law stipulates that a non-EU spouse must acquire an entry clearance visa, known as an EEA family permit, before travelling to the UK; several non EU spouses have ignored this and used the EU law, which bars the entry clearance officers from refusing entry. Though never a smooth entry, such a spouse is usually successful in obtaining an A1 entry clearance stamp at the border. As you can imagine, the entry clearance officers are not amused by this practice, as it deprives them of the opportunity to vet the applicant’s before they set foot on English soil.
Another peculiarity of this route is that such a British National returning to the UK does not have to continue to be economically active once they are back in the UK for the spouse to continue enjoying their right of residence.
The forthcoming changes:
From January 2014, the Government is making changes to the Surinder Singh route, specifically with regards to the spouse visa; the Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2013 (SI No 3032) will amend Regulation 9 of the Immigration (EEA) Regulations inserting a clause which stipulates that a British Citizen who is seeking to return to the UK with his spouse must not only have been economically active in another EU country whilst residing there with their spouse, but also that (I quote)
“the centre of P’s [the British citizen’s] life has transferred to the EEA state where P resides as a worker or a self employed person.”
In assessing this, the relevant factors to consider are:
- the period of residence,
- the location of the British National’s principal residence,
- the degree of the British National’s integration to the EEA State.
The significance of these changes:
I have seen several alarmed responses to these changes, with some deeming them as the Government ‘slamming the door’ on the Surinder Singh route. I am of the contrary opinion that this route remains open but is now more restricted.
It is important to note that unlike some EU states, who have offered clear guidelines as to how this route can be followed, the UK has not previously offered any guidance. For example, there is no guidance as to how long someone needs to have resided in another country before returning (previously people have used the guideline of the 10weeks period of working, for at least 12 hours per week). Whereas it is difficult to have a prescriptive guide for this route, given that this would conflict with the actual EU directive, these changes are aimed at providing clear guidance as to how entry clearance officers should assess such cases.
One needs to note that, whereas these guidelines were not in black and white before, these were still relevant points when one was making an EEA application. For example, a person who has been working full time for 8 months in an EU country, would have a better case than one who has been working for a few hours per week for only 3 months. What this new law means then, is that a spouse may find that they have to reside a little bit longer in the EU country so as to show integration by providing proof such as
- long tenancy agreements
- permanent employment
- EEA resident’s card for the member state – normally given 6 months after application
So, is the government slamming the door? Not fully. This option is still a viable route to those couples who are able to relocate to another EU country for a while, however, it makes it more difficult for those who have very strong ties in the UK e.g. children of school going age, those who are paying a mortgage or have a council house, or those who have a UK job that they would want to return to shortly. Meanwhile, we await the court’s hearing and decision next march with regard to the UK family Immigration Rules and the application of the financial threshold.
!!!Update!!!****O v The Netherlands Case C‑456/12*
The recent changes have been overruled by the Grand Chamber EU courts in the new case on Surinder Singh: O v The Netherlands Case C‑456/12) – the Government has been sent back to the drawing board on its recent changes to the law about “moving the centre of your live” .
Only Genuine Residence is exercising Treaty Rights
Notably the court held that all that is required is that one has been lawfully and genuinely resident in another EU state and exercising treaty rights under any of the five established ways (Student, Worker, Self-sufficient, Self Employed or Job Seeker) – not just being a worker, as provided for by the Surinder Singh case.
An exciting suggestion from the court is that apparently, even 3 months of genuine residence can be long enough to qualify under this principle and also that weekend visits to the person’s own state are permitted.
No Room For Abuse
Although the government seem to have been on the losing side on this one, the court did make it very clear that on this route there is ” NO ROOM FOR ABUSE” and that one must have genuinely been residing in another state.
Caution! No Change of Rules Yet
Please note that, while this decision makes it clear that the government requirements for ‘centre of life’ is a breach of EU law, the rules are yet to be changed to reflect this and my guess is that the home office caseworkers will continue to use the rules as they are until they are changed. So, unless you can afford to challenge a refusal under this rule in court (about eight months and several thousand pounds later), I suggest you play it safe and try to meet this requirement for now.
Watch out for a new article when the rules are changed to comply with the EU court; the tide is turning!
If you have you have been affected by these new changes or need to discuss any immigration matter, please call Solicitor Tito for a quick Free chat about your case – all initial consultations are totally free of charge and we charge competitive fixed legal fees should you choose to instruct us – 07544669131