Family members of British citizens: the Surinder Singh route after Brexit
A set of new immigration rules applicable to European nationals – Appendix EU – has been updated on 30th March 2019 to include rules applicable to family members of British citizens who have lived in another EEA country and wish to return to the UK.
British citizen who move in another European country and then decide to come back, can bring their spouse or family member on the basis of the EEA Regulations, instead of having to satisfy the more stringent requirements of Appendix FM of the Immigration Rules.
Who can apply under this route?
Only “qualifying British citizens” can apply under the Surinder Singh route. This was the case before Appendix EU came into force and the requirements remain the same.
In line with the other categories covered by the EU Settlement Scheme, leave to enter or remain will only be granted to applicants who meet the relevant requirements by a specific time, which may be the end of 2020 or another date to be confirmed, depending on whether the UK leaves the EU with or without an agreement.
Annex A of Appendix EU defines a qualifying British citizen as a British Citizen (BC) who:
a) has been or was resident in the UK with the applicant for a continuous qualifying period which corresponds or corresponded with the continuous qualifying period on which the applicant relies; and
(b) satisfied regulation 9(2) and (4)(a) of the EEA Regulations (as the British citizen (“BC”) whom those provisions refer) immediately before returning to the UK with the applicant (who is to be treated as the family member (“F”) to whom those provisions refer)
Translated in English, this roughly means that a British Citizen will be treated as an EEA national (i.e. can benefit from the EEA Regulations) if they lived in another EEA State with their family member as a worker, self-employed, self-sufficient person or student.
They also have to show that their relocation from the UK to another EEA State was “genuine” and not a ruse to circumvent the more stringent requirements of the Immigration Rules.
More specifically, the conditions of regulation 9(2) and 4(a) of the EEA Regulations that need to be satisfied are that:
1) the BC resided with the applicant (i.e. with the non-British and non-EEA family member) in the UK for a continuous period of time on which the applicant relies for the purpose of their application and
2) immediately before returning to the UK with the applicant, the BC:
(i) resided in an EEA State as a worker, self-employed person, self-sufficient person or a student or acquired the right of permanent residence in an EEA State; and
(b) the applicant and the BC resided together in the EEA State;
(c) their residence in the EEA State was genuine;
(d) the applicant was a family member of the BC during all or part of their joint residence in the EEA State; and
(e) genuine family life was created or strengthened during their joint residence in the EEA State
3) the purpose of the residence in the EEA State was not a means for circumventing any immigration laws applying to non-EEA nationals to which the applicant would otherwise be subject.
Annex A defines family members of a qualifying British citizen as:
a person who has satisfied the Secretary of State, including by the required evidence of family relationship, that:
(a) they are (and for the relevant period have been), or (as the case may be) for the relevant period they were, resident in the UK before the specified date as:
(i) the spouse or civil partner of a qualifying British citizen, and the marriage was contracted or the civil partnership was formed before the specified date; or
(ii) the durable partner of a qualifying British citizen, and:
(aa) the partnership was formed and was durable before the specified date; and
(bb) the partnership remains durable at the date of application; or
(iii) the child or dependent parent of a qualifying British citizen; or
(iv) the child or dependent parent of the spouse or civil partner of a qualifying British citizen, as described in sub-paragraph (i) above; or
(v) the dependent relative of a qualifying British citizen and that family relationship and the person’s dependency (or, as the case may be, their membership of the household or their strict need for personal care on serious health grounds) existed before the specified date; and
(b) they satisfied the conditions in regulation 9(2) and (4)(a) of the EEA Regulations (as the family member (“F”) to whom those provisions refer) immediately before returning to the UK with the qualifying British citizen (who is to be treated as the British citizen (“BC”) to whom those provisions refer)
To simplify: spouses, civil partners, durable partners, children or dependant parents of the qualifying BC and of their spouse or civil partner, as well as dependant relatives of qualifying BCs, may apply under the Surinder Singh route if they were already part of the qualifying BC’s family before the specified date.
Durable partners and dependant relatives must also show that their relationship or dependency continued to the date of the application.
It is important to note that following the CJEU case of Banger v UK (C‑89/17), which found that the Surinder Singh provisions extend to unmarried partners of qualifying British citizens, Appendix EU has included this category, previously excluded.
However, to qualify the relationship must be not only formed but also durable before the “specified date”, and the UKVI generally requires two years cohabitation to consider a relationship “durable”.
The “specified date” mentioned above means 2300 GMT on 31 December 2020 if the United Kingdom withdraws from the European Union with a Withdrawal Agreement.
If however, the United Kingdom withdraws from the European Union without a Withdrawal Agreement, ‘specified date’ means the date and time of withdrawal stated in the various paragraphs of Appendix EU.
The application process
Given that the revised Appendix includes Surinder Singh cases, one would expect that an application could be made using the same online process available to EEA nationals and their family members who wish to apply for pre-settled or settled status.
Sadly, this is not the case. The gov.uk website advises that the scheme cannot be used by family members of British citizens who should call the EU Settlement Resolution Centre instead to find out how to apply.
Applicants will be asked a few questions over the phone, presumably to assess their eligibility, and then they will be sent an application form through the post.
We understand that the application form being sent is around 60 pages long and it is personalised with details of the applicant and with an application number, so it cannot be used by others.
Anecdotal evidence shows that the UKVI started sending forms towards the end of April and that forms take around 10 days to be dispatched.
There is no fee payable to submit the application.
Appendix EU distinguishes between mandatory and discretionary grounds for refusal:
Applications will be refused if the applicant is subject to a deportation or an exclusion order.
Applications may be refused if the applicant is subject to a deportation or exclusion order made by Guernsey, Jersey or the Isle of Man.
Applications may also be refused if the Secretary of State is satisfied that it is proportionate to refuse an applicant who has submitted with the application whether or not to their knowledge, false or misleading information, representations or documents material to the decision.
Finally, applications may be refused if the applicant is subject to a removal decision under the EEA Regulations on the grounds of their non-exercise or misuse of rights under Directive 2004/38/EC.
Paragraph EU12 states that applicants are eligible for indefinite leave to enter or remain if they are a family member of a qualifying British citizen or a family member who has retained the right of residence by virtue of a relationship with a qualifying British citizen; and the applicant
1) has obtained permanent residence and has not lost it (for example because has left the UK for two consecutive years); or
2) there is valid evidence of their indefinite leave to enter or remain; or
3) the applicant has completed a continuous qualifying period in the UK of five years and was, for any period of residence as a family member of a qualifying British in the UK lawfully by virtue of regulation 9(1) to (6) of the EEA Regulations (regardless of whether in the UK the qualifying British citizen was a qualified person under regulation 6 of the EEA Regulations); and
4) no supervening event has occurred
Children under 21 of the spouse or civil partner of a British citizen can also apply for indefinite leave to remain if they have lawfully resided in the UK for five years and their non-British parent is granted ILR.
It is important to note point 3 above: under Appendix EU it is not necessary for a British citizen to exercise Treaty rights (i.e. to be a qualified person) once in the UK.
Applicants will be eligible for limited leave to remain if they meet the various conditions described above but have been residing in the UK for less than the required period of five years which would make them eligible for ILR.
Grant of leave
Applicants will be granted indefinite leave to enter or remain if they are able to provide evidence to show that they have met the requirements for five consecutive years.
Otherwise they will be granted five years limited leave to enter or remain and will be able to apply for indefinite leave at the completion of five years, assuming they still meet the relevant requirements.