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Surinder Singh

EU free movement for British citizens

www.freemovement.org.uk

!!!!!!!!!(c) Colin Yeo 2014

All rights reserved. Copying and printing prohibited without written permission. Quite a lot of effort went into producing these materials: please report breach of copyright.

!!Image credits

Cover: By Kalyan Neelamraju, on Flickr

Map of EU: By JLogan, Wikipedia Commons!!

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!CONTENTS

Foreword! 3!

Introduction! 5!

Glossary and meanings! 7!

How EU free movement rights work! 8!

The fundamental freedoms! 8! Rights not privileges! 10! What are the EU, EC, EEC and EEA?! 12! Who are the EU Member States?! 12! Where does EU law come from?! 14! EU citizenship! 15! How to read and understand free movement law! 16! What are the benefits of free movement law?! 17!

UK and EU rules contrasted! 17! Reverse discrimination! 18! Whose rights?! 20!

Can a British citizen use EU law in the UK?! 21! There and back again: Surinder Singh! 21! Provision of goods or services in another Member State! 22! Zambrano citizenship rights! 22!

Family members and their rights! 24!

Who is a family member?! 24! What rights does the family member have?! 26! Who is an ‘extended family member’?! 27! What rights does the ‘extended family member’ have?! 30! Is it necessary to get a family permit to enter the UK?! 31!

Family members! 31! Extended family members! 34!

Surinder Singh! 35!

What is the ‘Surinder Singh route’?! 35! The facts of Surinder Singh! 36! The legal effect of Surinder Singh! 36!

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Current position in EU law! 39!

O v Netherlands! 39! The facts of O v Netherlands! 39! The legal effect of O v Netherlands! 40!

Period of residence! 42! What counts as “residence”?! 43! What might “creating or strengthening” family life involve?! 44! Who can benefit?! 45!

Who can sponsor?! 45! Who counts as family members?! 45!

What might count as “abuse”?! 46! Rules not really met! 47! Deliberate intention! 50!

UK Government approach! 53!

General approach! 53! UK regulations! 54! UK ‘policy guidance’! 56! Centre of life test guidance! 57!

Length of residence! 57! Principal residence! 58! Degree of integration! 58!

Alleged abuse of treaty rights! 60!

Practical issues! 63!

Securing entry to another EU state! 64! Proof of residence in another EU Member State! 65! Exercising Treaty rights in another EU state! 66!

What counts as exercising treaty rights?! 66! What evidence is required?! 68!

Must treaty rights be exercised on return to the UK?! 68! Conclusion! 70

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FOREWORD!

Since the introduction on 9 July 2012 of new family immigration rules, and more recently the Court of Appeal overturning the High Court judgment in the MM & Ors v SSHD case, information on exercise of treaty rights and the extension of this into the Surinder Singh route has been in high demand.

The Surinder Singh Guide for Newbies available through BritCits, the Free Movement blog and various Facebook support groups on exercise of treaty rights have thus been highly-sought after. By providing an interpretation of the regulations and translating of relevant court judgments in a language which even those not trained in immigration law will be able to comprehend this ebook helps fill the void in legal advice. I believe it will prove to be very useful to families, affording them some comfort that it has been written by a barrister who specialises in EU immigration regulations, and being offered at a nominal price.

Colin provides an insight into the legal rights accorded to us by the EU law. Equally valuably, he gives advice on keeping an eye on the big picture to successfully navigate the Surinder Singh route with minimal hassle, by sharing his experience of Home Office behaviour even where it may not be strictly in accordance with the law.

Unlike under UK immigration rules, Surinder Singh incurs negligible visa fees, has no language or Life in the UK tests to pass, no financial requirements nor a probationary period to satisfy, and non-EEA family members do have recourse to public funds. Yet exercise of free movement rights for return to

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the UK is not usually the preferred route as it is expensive and inconvenient, especially if children or elderly are involved. It can mean giving up a secure job in the UK, albeit one which may not pay £18,600, with added concern over obtaining work in another country, incurring relocation expenses, sorting out admission at schools and then going through all that again in the UK.

However with nearly half the working population unable to earn the required amount to sponsor a foreign partner and adult dependant relative rules deemed ‘a ban masquerading as a rule’ under UK’s immigration rules, many British citizens we have come across feel leaving the UK to engage in the Surinder Singh route is the only way to maintain family life here.

Surinder Singh should not be accepted as a permanent alternative to fair domestic immigration rules. It does not address the problems faced by those who cannot leave the UK because of financial or family obligations, such as mortgages or looking after elderly British relatives. Nor is it an option available to residents or refugees.

Surinder Singh does however offer a solution for some, and means fewer families need to wait for the time when politicians and judges in the UK appreciate that family is a right not a privilege. Until then though, we can be contacted via our website www.britcits.com for more information and help with the practicalities of relocating overseas, continuing in our mission to teach the world to Singh.

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Sonel Mehta

July 2014

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INTRODUCTION!

The ‘Surinder Singh route’ has become well known to British citizens with foreign national family members. The toughening up of UK immigration rules in July 2012 has resulted in ever increasing numbers of divided families or loved ones facing separation or exile outside the UK. The introduction of the minimum income rule of at least £18,6000 along with its labyrinthine documentary requirements and the appalling elderly dependent relative rules have had particularly cruel effects.

The Surinder Singh route might be described as a “right of return” under European Union free movement law. As is discussed in more detail below, in order to facilitate and promote free movement of people the EU has introduced very progressive rules on moving around Europe, including the right to be accompanied by family members. The right to move abroad from one's own Member State has been held by the courts to include a right of return under EU free movement law. This right of return can be used by British citizens wishing to be accompanied by their family members under liberal EU free movement rules rather than draconian UK immigration requirements.

There are conditions to be met, however, and the fact that the “right of return” has emerged through case law rather than a simple and codified piece of law with a check list of requirements means that there has been room for interpretation and misinterpretation. EU governments, including the UK government, are also anxious to prevent what they consider to be

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“abuse” of free movement law in order to circumvent domestic immigration requirements.

This ebook looks first at how EU free movement law works and who counts as a family member before moving on to consider the case law on Surinder Singh and then finally the UK government position and the practicalities of relying on EU free movement law in this way.

One of the threads that runs through this ebook is the difference between law and practice and the wisdom of, where possible, complying with Home Office expectations, whether they be lawful or not. This ebook provides analysis and informed opinion on the requirements of EU law and on Home Office policy and practice, but I repeatedly recommend that where there are differences between the two an individual should try as far as possible to comply with Home Office requirements and expectations. To do otherwise carries a high risk of refusal, which is undesirable in itself but can also risk detention, separation and legal expenses.

While we immigration lawyers may well benefit from the additional custom generated by unnecessary refusals of stubborn individuals who insisted on their legal rights, neither the refused family member nor the angry British citizen will much enjoy the experience.

I am grateful for the invaluable assistance of Sonel Mehta of the fabulous organisation BritCits with information that was used in the writing of the ebook and with proofreading and suggestions.

Do get in touch if you have comments or suggestions.

!!!!July 2014

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