*** This post is currently being updated to reflect changes following Case C-456/12 O & B, the UK’s “centre of life” and abuse of law – please visit again soon*** 

In June 2013, the BBC broadcast a report in which it examined the effect that the UK’s new Immigration Rules concerning family members are having on British citizens. The full report entitled “Extreme Immigration” is available as a podcast here.

The BBC’s report told the story of a number of British citizens who have decided to make use of EU rights conferred by the EU Court of Justice in the Surinder Singh case as a result of the new financial requirements for families under the UK Immigration Rules.

The EU Rights Clinic believes it beneficial to provide an explanation of the Surinder Singh case.

What was the Surinder Singh case all about?

Mr Singh was an Indian citizen who worked with his British wife in Germany for several years. The couple then returned to the UK where he was allowed to reside with his wife on the basis of the UK immigration rules (limited leave to remain).  The couple then divorced. The UK authorities decided to curtail his leave to remain and order his removal from the UK. Mr Singh challenged the decision before the UK courts, which then decided to refer the matter for an opinion from the EU Court of Justice on whether Mr Singh had a right to reside in the UK on the basis of EU law.

What did the EU Court of Justice decide?

In its ruling handed down on 7 July 1992 in case C-370/90, the EU Court of Justice ruled that Mr Singh had a right under EU law to reside in the UK on the basis that his wife had previously exercised her right to free movement by working in Germany.

The Court explained that a European citizen might be deterred from leaving his country of origin in order to work in another EU country if, on returning to his home country, his spouse and children were not also permitted to enter and reside in the citizen’s country of origin under the same conditions that apply to an EU citizen going to live in an EU country other than his home country.

The EU Court therefore ruled that an EU citizen who has gone to another Member State in order to work there and returns to his home country has the right to be accompanied by his spouse and children whatever their nationality under the same conditions as are laid down by (what is now) Directive 2004/38 which governs residence rights.

How has the Surinder Singh case been given effect in the UK?

The Surinder Singh case has been given effect in UK law by regulation 9 of the Immigration (European Economic Area) Regulations 2006.

The UKBA has issued guidance to explain how the Surinder Singh rules apply in the UK as well as further detailed guidance on how the rules apply to non-EEA family members in Chapter 2 of its European caseworker instructions.

The UKBA’s internal European Operational Policy Team instructions Issue 5/2011 also provide further guidance on regulation 9.

Which family members benefit from Surinder Singh?

The EU Court has only so far recognised the right of spouses and children of EU citizens to return home after exercising free movement rights in another EU country.

However, the UK’s Upper Tribunal ruled on 14 October 2014 that regulation 9 also applies to unmarried partners (SSHD v Kamila Santos Campelo Cain (IA/40868/2014) promulgated 17 October 2014)

Is this a loophole in the law?

Contrary to comments made in some quarters, the Surinder Singh case is not a loophole. It is a right enshrined in EU law by the EU Court of Justice since 1992. Under section 3(2) of the European Communities Act 1972, judgments of the EU Court of Justice must be given effect in the UK.  As a result, the Surinder Singh case has been incorporated into UK law by regulation 9 of the Immigration (European Economic Area) Regulations 2006.

If the UK was to leave the EU would this close the Surinder Singh route?

Not necessarily. This would depend on the terms of the UK’s exit that would need to be negotiated under Article 50 of the Treaty on European Union as inserted by the Lisbon Treaty. If the United Kingdom was to leave the EU but agree to join the European Economic Area (currently the EU states plus Iceland, Liechtenstein and Norway) in order to continue its participation in the Single Market, the Surinder Singh case would continue to have effect in the UK by virtue of Article 28 of the EEA Agreement. If the United Kingdom was to negotiate a stand-alone Agreement on the Free Movement of Persons like Switzerland  has negotiated with the EU, then this case law would continue to have effect for the purposes of interpreting any such stand-alone agreement.

For further information

For further information on the Surinder Singh route, including personalised advice, please contact the European Commission’s free legal information service Your Europe Advice.

‘The Surinder Singh Route – Understanding the Law’ first appeared on the EU Rights Clinic’s blog.