Mon 08 Sep 2014

The Surinder Singh route: Families turning to Europe as financial requirements for partners upheld by courts

With the Court of Appeal finding in favour of the Home Office in its judgement on the minimum income requirements for foreign partners on 11th July, hope of being able to live together in the UK was dashed for thousands of couples consisting of a British citizen and a non-British partner.

"Yesterday my wife received her UK visa following the Surinder Singh route which required a great deal of preparation with supporting documentation, covering letters and advice which Averil led us through explaining the procedure in terms we could understand with the successful conclusion of my wife receiving her visa.  We cannot thank Averil enough and having this visa provides my wife and I with the ability to live in the UK again without which it would have been very difficult for us to do so. Friends of mine who live in Scotland recommended Morton Fraser and without doubt I was very happy that I listened to their advice as we can also now recommend the superior service that we have received and in particular from Averil Trimble." - Private immigration client

Roughly 4,000 applications for partnership visas have been put on hold since the case initially came before the courts last year - and an unknown number of other individuals have been put off from applying in the first place. The rules, which were introduced in July 2012, require a couple to have an income of £18,600 per annum before the non-British partner can be granted a UK partnership visa - a requirement which discounts 48% of Scotland's working population, and which is even harder to meet for couples who have been living together abroad in countries where average wages are lower.

All this has led to couples increasingly considering an alternative way of obtaining the right to live together in the UK - the 'Surinder Singh' route. This involves gaining permission to live in the UK under European Union law, rather than British law. To understand how this works, it is worth considering the status of EU citizens in the UK. A citizen of another EU member state, such as France or the Czech Republic, may move to the UK and work here without restriction, with British citizens enjoying the corollary right to live and work unrestrictedly in those countries. What is less well known is that EU law also takes account of the fact that in order to guarantee real free movement a person must be allowed to have their family members accompany them - otherwise they would be deterred from moving. The law therefore protects the right of French and Czech citizens coming to the UK to bring their spouses and children - even if these family members are from a non-EU country such as Turkey, China or the USA (as well as protecting, of course, the right of UK citizens to do the same in reverse).

The trick for British citizens comes from the case of Surinder Singha case of the European Court of Justice in Brussels.From this case flows the general principle that if a British citizen moves to, for example, France with their non-EU partner and resides there for a period of time, if they then choose to return to the UK then they may be able to be considered on the same basis as a French resident exercising a right of free movement to Britain. They may therefore be able to bring themselves under the scope of EU law, which would mean that the UK Government's minimum income requirements would not apply to them.

It is worth noting that although it is the separation of partners under the new immigration rules that has attracted the most attention, the UK has also severely tightened the rules on dependant elderly parents. It is now almost impossible for British citizens with aged parents abroad to be able to care for them in the UK. The Surinder Singh route can apply to dependant parents as well as partners.

UK Partnership Visa

European free movement law

Requirement for a couple to be earning £18,600 p/a - 48% of Scotland's working population excludedWhen moving to UK citizens of other EEA countries can take non-EEA family members with no financial requirement
Level increases if any children (unless the children are British or EEA citizens)British citizens cannot usually take advantage of the same provisions except in certain circumstances (the 'Surinder Singh' route)
Cash savings can be used to make up an income shortfall - but only savings above £16,000 

The route has sometimes been referred to as a 'loophole' or 'backdoor route' but is in fact a fully legitimate and legal option. Despite this, there is an undoubtable air of tension which exists between UK and EU law, and between the competing priorities of the UK Government and the EU institutions. The Home Office has made attempts to restrict this route, principally by introducing what is known as the 'centre of life' requirement in January 2014. This rule requires a person to prove that their 'centre of life' has shifted to the new EU country that they live in before they can be considered under the Surinder Singh route. 'Centre of life' is not a clearly defined term, but rather is comprised of a range of considerations. The degree of integration into the new country is important - factors such as whether a person has learnt the local language, whether they have any children there and how often they return home could all be seen as relevant. There is no set minimum time period a person must live in a place before their centre of life can be considered to have shifted under the Home Office rules, but the longer a person has been residing in a place the higher the chances are that this is the case.

The difficulty for the UK Government is that the centre of life requirements do not appear anywhere in EU law and indeed appear to contradict it. Earlier this year a new case of the Brussels Court, named O v Netherlands, provided updated guidance on how the Surinder Singh route applies across Europe. The rules it set out were different from those that the UK Government is determined to apply.

It is arguably unlawful for the British immigration authorities to refuse to admit someone into the UK purely on the basis of not meeting the 'centre of life' requirement. In the UK's unwritten constitution, things are not always clear-cut; but EU law trumps Home Office regulations and for the Government to contradict such unambiguous provisions from Europe seems a clear breach of EU law. Indeed, it has recently been reported that the European Commission have announced that they will be contacting the UK authorities to "ask for their observations on the compliance with EU law". This is likely to be the start of fuller proceedings to correct the UK's breach, and we could be heading for a stand-off between Brussels and Westminster on the issue.

Nonetheless, it looks like the British authorities may be applying the 'centre of life' requirements for some time to come. Despite what could be seen as the dubious status of these rules, it is generally easier, quicker and cheaper to make an application which meets these rules if possible. However, if an application is refused, then there is a right of appeal to the immigration tribunal, where the status of the centre of life rules will be viewed in a different light.

With the legal case on the UK's minimum income requirements looking set for the Supreme Court, it looks likely that more and more British citizens separated from their family by the immigration rules could be packing their bags and heading for Europe in the future. If you feel the Surinder Singh route is something which may apply to you, we are able to advise you whatever stage of the process you are at. Please do not hesitate to get in touch and we will be happy to arrange a consultation.

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