UK Changes Rules on Surinder Singh Route

On 3 December 2013, the UK government adopted the Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2013 (SI No 3032) which amend Regulation 9 of the Immigration (EEA) Regulations. The new rules take effect on 1 January 2014.

From that date, it will now be a new requirement for those using the Surinder Singh route that “the centre of [the British citizen]’s life has transferred to the EEA State where [the British citizen] resided as a worker or self-employed person.”

The official Explanatory Note states:

‘Paragraph 5 of the Schedule replaces the existing regulation 9 of the 2006 Regulations to require a British citizen to have “transferred the centre of his or her life” to another member State in order to acquire a right of residence in the UK for his or her non-EEA family member seeking a right to reside in the UK upon their return. Factors relevant to whether the centre of a person’s life has been transferred to another member State include the period of residence in that member State, the location of that person’s principal residence, and the degree of integration. These changes are to ensure that a British citizen engages in genuine and effective use of the rights conferred by Directive 2004/38/EC before a right to reside in the United Kingdom is conferred on a non-EEA family member.’

According to regulation 9(3), the centre of a person’s life will be assessed by reference to:

(a) the period of residence in the EEA State as a worker or self-employed person;

(b) the location of [the person]’s principal residence;

(c) the degree of integration of [the person] in the EEA State.

Here are some initial thoughts on the changes:

  • As to the duration of the time spent working in another EU country, it should be recalled that in Surinder Singh (Case C-370/90), Mrs Singh worked for about two years in Germany. In Akrich (Case C-291/01), Mrs Akrich had worked in Ireland for six months before trying to return home to the UK with her husband using the Surinder Singh route. The Court seemed to accept this was sufficient to trigger the right to return home. However, ultimately, the attempt by Mrs Akrich’s husband to return to the UK with his British spouse using the Surinder Singh route failed because the Court ruled that the EU free movement rules could only be relied upon by non-EU family members who had lawfully resided in an EU country. This was not the case of Mr Akrich, who had been deported from the UK several times and was the subject of a ban on re-entry.  Nonetheless, the Akirch case was later overturned on this specific point in Metock (Case C-127/08, para. 58). In that case, the Court found that prior lawful residence in the EU could not be made a condition for the right to reside under Directive 2008/34. This Directive also applies by analogy to EU citizens returning home with their family members after exercising their right to free movement. In Eind (Case C-291/05), Mr Eind stayed in the UK for 15 months before receiving confirmation of his right to reside in the UK. He then spent a further period of five months in the UK before returning home to the Netherlands with his daughter. In a pending case before the Court of Justice (O & Others, Cases  C-456/12 and C-457/12, AG Opinion due on 12 December 2013), the Court has been asked to determine whether B., the Moroccan husband of a Dutch recipient of services who spent week-ends in Belgium over a 16-month period while continuing to work in the Netherlands, can invoke the Surinder Singh route to return home with his spouse. The EU wife of the second applicant, O., spent her week-ends in Spain with her Nigerian spouse while working in the Netherlands. The view of the Dutch Ministry of the Interior appears to be that there was no effective exercise of the right to free movement, since only a continuous period of residence lasting over three months qualifies. ***update*** Advocate General Sharpston’s Opinion can be read here.
  • Assessing whether there has been a change in location of a person’s principal residence involves looking at several issues. If the rules are interpreted with the necessary degree of proportionality as required by EU law, a person’s principal residence should be considered to have changed from the UK to another EU country if the person moves to another EU country with his close family members for example. It would also mean complying with local residence formalities in the EU country of work.
  • The degree of integration should be assessed by reference to several factual elements (see Joined Cases C-523/11 & C-585/11 Prinz and Seeberger [2013] ECR nyr (judgment of EU Court of Justice of 18 July 2013), at para. 38). Integration can be demonstrated by holding the nationality of the EU country of work (for example a dual French/UK national working in France) or speaking the local language. It can also be that the person has other family there, was educated there, or is genuinely employed there (so posted workers should also be included). Other social and economic factors that should also be taken into account include paying national insurance and income tax in the country of work among other circumstances.

For those who may feel they are affected by the change in the rules and want further information on how this might concern their situation, they are invited to contact Your Europe Advice for further information.

‘UK Changes Rules on Surinder Singh Route’ first appeared on the EU Rights Clinic’s blog.

The views expressed on the blog are personal to the authors and should not be seen as constituting legal advice. It should not be relied upon instead of consulting a lawyer.

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The Surinder Singh Route – Understanding the Law

*** 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.