The “Surinder Singh route” has become well known to British citizens seeking to be reunited with their family members. The toughening up of UK immigration rules in July 2012 – particularly the introduction of the minimum income rule with its labyrinthine documentary requirements, and the awful elderly dependent relative rules – has resulted in an ever increasing number of split families. The Children’s Commissioner has described affected families with children as “Skype Families”.

An old Court of Justice of the European Union case called Surinder Singh provides a potential means to rely on family-friendly EU free movement laws rather than the harsh UK Immigration Rules. There are other relevant cases and laws to consider, though: primarily a newer case called C‑456/12 O and B v The Netherlands and the UK’s own interpretation of this case law as set out in the Immigration (European Economic Area) Regulations 2016.

The background

Essentially, the principle established by the Surinder Singh case is that the right in European Union law for a person to move from one EU member state to another must include a right to return, otherwise a person would be deterred from moving in the first place. If you are exercising your right to return to your home member state you are therefore doing so under European Union law. Therefore… it is European Union law and not the domestic rules of your own member state that also applies to any family members. In the judgment itself inC-370/90 Surinder Singh the court held that free movement laws:

require a Member State to grant leave to enter and reside in its territory to the spouse, of whatever nationality, of a national of that State who has gone, with that spouse, to another Member State in order to work there as an employed person as envisaged by Article 48 of the Treaty and returns to establish himself or herself as envisaged by Article 52 of the Treaty in the State of which he or she is a national. A spouse must enjoy at least the same rights as would be granted to him or her under Community law if his or her spouse entered and resided in another Member State.

There is a very good summary of the background and facts to Surinder Singh over at the Kent EU Rights Clinic. It is now slightly out of date, though, as there have been developments since then.

Case of O and B v The Netherlands

The most important change since Surinder Singh itself is the case of C‑456/12 O and B v The Netherlands, handed down by the Court of Justice of the European Union in March 2014. Without much mentioning Surinder Singh, the judgment completely re-writes the legal basis of the earlier case and sets out important and binding new guidance.

The actual conclusion is as follows:

Article 21(1) TFEU must be interpreted as meaning that where a Union citizen has created or strengthened a family life with a third‑country national during genuine residence, pursuant to and in conformity with the conditions set out in Article 7(1) and (2) and Article 16(1) and (2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, in a Member State other than that of which he is a national, the provisions of that directive apply by analogy where that Union citizen returns, with the family member in question, to his Member State of origin. Therefore, the conditions for granting a derived right of residence to a third‑country national who is a family member of that Union citizen, in the latter’s Member State of origin, should not, in principle, be more strict than those provided for by that directive for the grant of a derived right of residence to a third‑country national who is a family member of a Union citizen who has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national.

To help you unpick this, the reference to TFEU is to the Treaty on the Functioning of the European Union and concerns the fundamental right of free movement around the EU by citizens of the EU. The references to Directive 2004/38/EC can be traced in the text of the Directive. Article 7 is entitled “Right of residence for more than three months” and confers a right of residence on EU citizens who are exercising their treaty rights to work, be self employed, self sufficient or study. Article 16 concerns the right of permanent residence, acquired after 5 years of lawful residence.

The following important points emerge:

Regarding abuse, the judgment states that:

the scope of Union law cannot be extended to cover abuses… Proof of such an abuse requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the European Union rules, the purpose of those rules has not been achieved, and, secondly, a subjective element consisting in the intention to obtain an advantage from the European Union rules by artificially creating the conditions laid down for obtaining it.

The topic of abuse is dealt with in more detail in my full ebook (see bottom of post). EU law states that the intention behind exercise of treaty rights is irrelevant (see C-109/01 Akrich) and abuse requires the accuser to prove both that the rules for a right are not really met and that there was a deliberate intention artificially to make it appear as if the rules were satisfied (C‑110/99 Emsland‑Stärke).

ILPA members will also want to take a look at the helpful note by the ever-excellent Elspeth Guild, and at her earlier note also available here (ILPA members only).

UK government’s interpretation of Surinder Singh

The UK government’s current official interpretation of the effect of Surinder Singh is set out in the Immigration (European Economic Area) Regulations 2016 at regulation 9. This interpretation was updated for outstanding and new Surinder Singh cases with effect from 25 November 2016; the old interpretation was set out in the Immigration (European Economic Area) Regulations 2006 and is only of historic interest now.

The short version is that the new regulations provide that a residence card will be issued to a direct family member of a British citizen where:

• the British citizen exercised free movement rights as a worker, self-employed person, self-sufficient person or student in an EEA host country immediately before returning to the UK, or had acquired the right of permanent residence in the EEA host country, and
• the British citizen would satisfy the conditions for being a qualified person if they were an EEA national, and
• the family member and British citizen resided together in the other EEA member State and that residence was genuine, and
• the purpose of the residence in the EEA host country was not as a means to circumvent any UK immigration law applying to non-EEA nationals (e.g. the Immigration Rules)

On 24 July 2018 the regulations were beefed up to incorporate two additional requirements:

• that the family member of the British citizen was a family member during all or part of their joint residence in the EEA State, and
• that genuine family life was created or strengthened during their joint residence in the EEA State.

Neither of these extra requirements appear to actually add very much to the existing “genuineness” test. As has already been mentioned on this blog, if all of the existing requirements are met, it seems hard to envision a situation where the extra requirements would not be.

You can read the full text by clicking the drop down below. But be warned that the person drafting this seems to have a degree level qualification in Advanced Obfuscation.

The Home Office view is that if the British citizen in question “genuinely” resided with the relevant family member in another member state as a worker, self employed person, self sufficient person or student then the British citizen will be treated by the UK government as an EU citizen and can rely on the family reunion rules that apply to EU citizens. According to the case of O and B, whether residence is genuine depends simply on whether the terms of Article 7(1) and (2) and Article 16(1) and (2) of Directive 2004/38. The UK position is that much more is needed; according to the 2016 regulations, factors to be considered in assessing whether residence is genuine include:

(a) whether the centre of the British citizen’s life transferred to the EEA State;

(b) the length of the family member and British citizen’s joint residence in the EEA State;

(c) the nature and quality of the family member and British citizen’s accommodation in the EEA State, and whether it is or was the British citizen’s principal residence;

(d) the degree of family member and British citizen’s integration in the EEA State;

(e) whether the family member’s first lawful residence in the EU with British citizen was in the EEA State

You will search in vain for any reference to these factors in Surinder Singh or O and B v Netherlands; they are all unilaterally invented by the UK.

In particular, the ‘centre of life’ test first introduced on 1 January 2014 has no place in a lawful assessment of a Surinder Singh case. The test originates in the Advocate General Opinion that proceeded final judgment in O and B v Netherlands. Basically the UK government jumped the gun and rushed to adopt a test that was ultimately not adopted by the final judgment of the court.

The UK’s official position, expressed through Home Office Presenting Officers at court, is that the centre of life test is compliant with O and B v Netherlands. That is clearly wrong and the UK will eventually have to amend the regulations again, but that might not happen before Brexit. In the meantime, applications which fail under the regulations will need to be appealed and immigration tribunal judges will have to apply O and B v The Netherlands directly.

Who is a family member of a British citizen?

What do we mean when we use the term “family member”? European Union law and the regulations recognise two broad categories of family relationship: direct “family members” and “extended family members” (commonly shortened to EFMs).

Direct family members are defined within the regulations as the spouse or civil partner of the British citizen, along with the direct descendants (under 21 or over 21 and dependent), and dependent direct relatives in the ascending line. The relatives can be that of the British citizen, or their spouse/ civil partner.

The definition of an EFM at regulation 8 provides for a much broader category of relationship to the qualified person. This includes those who are in a “durable relationship”, a relative who is dependent or a member of their “household”, or a relative requiring care on serious health grounds. Note that the 2016 regulations restricted EFMs to solely relations of the qualified person, rather than (as is still the case for family members) of either party to the relationship.

In contrast to direct family members the definition of an EFM is quite complex, and there can be a significant evidential burden on a person seeking to be recognised as such. It is not difficult to evidence a marriage or a birth, but showing that someone is a relative and a member of your household or dependent can be more demanding. In most cases the Home Office will not accept a durable relationship as qualifying someone as an EFM unless there is evidence of two years’ cohabitation (though it is possible to argue shorter periods can also qualify if supported by strong evidence of the relationship’s durability).

Until the case of C-89/17 Banger, handed down by the Fourth Chamber of the Court of Justice of the European Union in July 2018, British citizens seeking to rely on the Surinder Singh route could only apply for their direct family members to join them in the UK. EFMs were excluded from the ambit of Surinder Singh.

In Banger, in a similar vein to the court’s decision in O and B, the judgment was based upon Article 21(1) concerning the fundamental right of free movement around the EU. The broad principle is that an EU national should not be discouraged from exercising these rights on the basis that they might not be able to be accompanied by their family. The court in Banger considered that it was not consistent with EU law to limit the benefit of the Surinder Singh route purely to “family members” as restrictively defined.

Banger was concerned with a couple in a durable relationship, but the judgment can be taken to include any EFM. The ratio in Banger was primarily that the conditions of granting residence to these applicants should be no more restrictive than the equivalent EFM of an EU national relocating to another member state.

For EFMs, under the regulations and legitimately under EU law, the Home Office is permitted to refuse residence documentation, but only after an extensive examination of the personal circumstances of the applicant and with written reasons in most cases. This is in contrast to the situation for family members, where there is less discretion to refuse. So while Banger is an extremely important case which significantly extends the benefit of Surinder Singh to a wider group of relationships, it is important to recognise that there is a more demanding evidential requirement for EFMs.

Neither the regulations nor the Home Office’s own published guidance has been amended to take account of Banger, so applicants may face difficulties in making their case. It may be necessary to appeal any refusal on this point and ask tribunal judges to ignore the regulations and apply the decision in Banger directly.

Is the British citizen a “qualified person” in the UK?

One new feature of the regulations as of 25 November 2016 is the requirement at regulation 9(1) and 9(7) is that the British citizen sponsor must in effect be a “qualified person” in the UK. This means being a worker, self employed person, being self sufficient or being a student. There are certain exceptions to the normal requirements for being a qualified person built in at regulation 9(7), such as comprehensive sickness insurance not being required by the British citizen.

The regulations are effectively retrospective and will affect those who have already entered the UK under the Surinder Singh route. The current Home Office guidance (see pages 28-29) directs caseworkers to accept that a British citizen will have been a qualified person up until 25 November 2016 so long as the residence card was issued prior to that date. If this is right, it would mean that a non-EEA national who entered the UK under Surinder Singh and was issued a residence card will automatically have lost his or her right of residence in the UK if the British citizen sponsor ceased being a qualified person at any time after 25 November 2016.

This is particularly problematic given that the regulations did not previously impose this requirement, and the requirement appears very much at odds with the case of Eind. This may well be a point that is litigated once the effects of the changes start to bite.

Genuine residence and centre of life test

On a pragmatic basis, it will be far, far easier if an applicant can satisfy the “genuine residence” and “centre of life” test requirements: it is the difference between an application being granted by the Home Office and having to appeal to an immigration judge, at some inconvenience, stress and expense.

The part of the regulations referring to ‘centre of life’ were amended into the regulations as of 1 January 2014 and then amended again on 25 November 2016. Some initial guidance was published for Home Office officials on 1 January 2014 and amended guidance was published for the latest changes: Free movement rights: family members of British citizens.

This latest guidance boldly asserts that the UK regulations are complaint with EU case law. Whether this is true will be for the UK courts and if necessary ultimately the Court of Justice of the European Union to decide. If there is time before Brexit occurs, anyway. Notably, though, the guidance does not assert compliance with the case of C-109/01 Akrich, an important Surinder Singh type case I return to below.

Length of residence

Length of residence is something that is relevant in EU law. O and B v Netherlands establishes that at least three months of residence as a worker, self employed person, self sufficient person or student is required. There is nothing in the case explicitly to suggest a longer period is necessary.

On length of joint residence the Home Office guidance instructs officials only to take account of a period for which there is documentary evidence. The guidance does not establish a set period of time as a minimum requirement but goes on to say that generally “the longer the period of joint residence while the British citizen was a qualified person, the more likely it is that the residence was genuine.” The guidance also states that applications must not be refused solely because of a short period of residence if the other evidence points to the residence being genuine.

Principal residence

There is nothing at all in O and B v Netherlands to suggest that “principal residence” is a requirement for establishing a right of return in EU law. Even where an EU citizen does maintain a place of residence in one Member State and works in another, that EU citizen is protected by free movement laws and is referred to as a “frontier worker” (because typically they cross a land border between home and work).

“Principal residence” is defined in the guidance as “the place and country where the British citizen’s life is primarily based.” Nothin more is said about this, but past refusals have pointed to a British citizen leaving his or her children in school in the UK while relocating, for example.

The “nature and quality” of accommodation must be considered, with the guidance suggesting that a mortgaged home or long term rented accommodation is more likely to indicate genuine residence than living at a hotel or a bed and breakfast or short stays with friends.

Experience suggests that monthly rolling tenancies are taken by Home Office officials as indicators of non genuine residence irrespective of whether these are prevalent in the rental market in question.

Degree of integration

There is nothing at all in O and B v Netherlands to suggest that degree of integration into the host Member State is a relevant consideration. Indeed, arguments that this was relevant were rejected by the court.

Nevertheless, the Home Office guidance attaches great weight to this consideration and most refusals of Surinder Singh cases seem to be on this basis.

The guidance sets out relevant considerations for officials and says that “[t]he more of these factors present in a case, the more likely it is the British citizen’s residence in the EEA host country was genuine”:

• if the family includes any children, were they born or did they live in the EEA host country and if so, did they attend school there and were they otherwise involved in the local community?
• are there any other family members resident in the EEA host country and were they working or studying there or otherwise involved in the local community?
• how did the family member spend their time in the EEA host country – is there evidence they worked, volunteered, studied or contributed to the community in any other ways?
• have they immersed themselves into the life and culture of the EEA host country, for example:
  • have they bought property there?
  • do they speak the language?
  • are they involved with the local community?
  • do they own a vehicle that is taxed and insured there?
  • have they registered with the local health service, a general practitioner (GP), a dentist etc?

Not to put too fine a point on it, this should be none of the business of the UK Home Office and is utterly unjustified intrusion into the life of an applicant. However, refusing to submit this evidence is highly likely to lead to a refusal, so standing on principle is likely to be stressful, time consuming and expensive.

Circumvention of UK immigration rules

In EU law, the motive for making use of free movement rights is irrelevant. If the substance of the rules has been complied with, that is an end of it. Marriages of convenience form an exception because they are based on an outright fraud.

Nevertheless, the UK has introduced in effect a “primary purpose” rule for Surinder Singh cases. The UK rules state that Surinder Singh does not apply:

where the purpose of the residence in the EEA State was as a means for circumventing any immigration laws applying to non-EEA nationals to which F would otherwise be subject (such as any applicable requirement under the 1971 Act to have leave to enter or remain in the United Kingdom)

The guidance elaborates on this by setting out potential indicators as to whether a person might be seeking to circumvent the UK rules:

• the family member’s immigration history – including previous applications for leave to enter or remain in the UK and whether they previously resided lawfully in the UK with the British citizen
• if the family has never made such an application, the reason the family member did not to apply to join the British citizen in the UK before the British citizen moved to the EEA host country
• the timing and reason for the British citizen moving to the EEA host country
• the timing and reason for the family member moving to the EEA host country
• the timing and reason for the family unit returning to the UK

Some other considerations are redacted from the guidance as being not for publication.

The guidance goes on to state that none of these factors are supposed to be determinative and in particular an application is not to be refused solely because of a previous refusal or poor immigration history. Examples are given of cases that do not and do look like circumvention:

For example, a non-EEA national obtains a visa to live and work in Ireland, and meets a British citizen at their place of employment. After two years, they begin living together and a further year later, they marry. In this example, family life was created and strengthened when the non-EEA national was already lawfully resident in the EU, independently of the British citizen’s status. The British citizen’s residence in Ireland was genuine, meeting their future spouse was incidental, and the non-EEA national could not have applied to join the British citizen in the UK before the British citizen moved to Ireland.

Contrast this with a non-EEA national who marries a British citizen while living in the UK unlawfully, then makes an application for leave to remain as the spouse of a British citizen. This application is refused under Appendix FM to the Immigration Rules due to immigration status and because the minimum income threshold and English language requirements are not met, and they do not qualify for leave outside the rules because there are no exceptional circumstances relating to family or private life. The couple decides to move to Ireland together, the British citizen finds temporary work and they return to the UK after six months. In this scenario the British citizen is technically exercising free movement rights in the EEA host country, but the purpose of the residence in Ireland is likely to be in order that the family member can reside in the UK under EU law instead of the Immigration Rules.

This circumvention test is clearly and directly contrary to the case of C-109/01 Akrich. In Akrich, a British citizen and her non EEA husband had moved to Ireland in order then to return and seemingly to circumvent UK immigration rules. The UK government argued that the couple therefore could not benefit from Surinder Singh. The court disagreed and held:

Where the marriage between a national of a Member State and a national of a non-Member State is genuine, the fact that the spouses installed themselves in another Member State in order, on their return to the Member State of which the former is a national, to obtain the benefit of rights conferred by Community law is not relevant to an assessment of their legal situation by the competent authorities of the latter State.

The court could not be clearer: the motivation for making use of free movement rights is irrelevant, even where a person has done so specifically to make use of such rights.

Making an application

From 1 February 2017 it is necessary to use the forms provided by the Home Office. Prior to this it was possible to apply without using the forms, for example by writing a covering letter and attaching the necessary evidence. For those who had applied without using a form, the Home Office policy states as follows:

When deciding the application, you will need sufficient evidence to consider:

• whether the residence in the other EEA host country was genuine
• whether the purpose of that residence was to avoid any UK immigration law applying to non-EEA nationals (for example the Immigration Rules)

If you have insufficient evidence, perhaps because it has been submitted without, or on an old version of, the application form, you should write to the applicant for the additional evidence using the template provided.

In general, applicants should be given 10 working days to submit the requested additional evidence. The deadline can be extended if the applicant provides a good reason why more time is needed. This will normally be where the requested evidence cannot be provided within 10 working days for reasons that are beyond the applicant’s control.

If the time limit to submit the requested evidence passes without response from the applicant, a decision should be taken on the evidence that is available, including any information already recorded on Home Office files or systems. You may draw any factual inferences about a person’s entitlement to a right to reside if, without good reason, a person fails to provide the additional information requested.

Where the applicant has applied using an application form which does request the information listed above, you should make a decision based on the information provided without writing out for additional information.

The Home Office guidance also tells us one of three things will happen if insufficient evidence of meeting the genuine residence or circumvention tests is submitted:

1. The Home Office will write to the applicant asking for further evidence; or
2. The case will be referred to a senior caseworker to consider inviting the applicant to a “credibility interview”; or
3. The application will be refused.

Applicants asked for further information in writing will usually be given 10 working days to respond and the deadline can be extended if good reason is given. Failure to respond at all will lead to inferences being drawn and the application may be refused outright or a credibility interview may be considered.

Credibility interviews are only supposed to be conducted where any additional information considered necessary cannot be obtained by writing to the applicant or, having tried a written request, there is still not enough information. A decision to conduct a credibility interview has to be approved by a senior caseworker. The interviews themselves are conducted by the permanent migration interviewing team and areas of questioning are suggested by the caseworker to them.

A subject access request ought to reveal what areas of questioning were proposed.

Where a person fails to attend a credibility interview or fails to provide the information requested, the guidance instructs officials they may “draw any factual inferences about a person’s entitlement to a right to reside”. Failing to attend is not sufficient in itself to justify a refusal. Other grounds will be needed but the Home Office will usually find them readily enough.

In practice these will be usually be the grounds which prompted the request for additional information or attendance at interview.

Consequences of refusal

EU law applications for non EEA nationals are usually retrospective in effect; it is only when the application is decided that the applicant finds out whether they have been residing in accordance with EU law or not. If their application is refused (and ignoring the possibility of a legal challenge) then it may transpire the person has been living in the UK unlawfully all along.

The Home Office guidance (page 25) states that:

The applicant will be liable to removal under section 10 of the Immigration and Asylum Act 1999, on the basis that they require leave to enter or remain in the UK but do not have it.

If and when removal is enforced, the applicant will be subject to a bar on entering the UK under the Immigration Rules for 10 years. This is in accordance with paragraph 320(7B) of the rules.

320(7B) is the general ground for refusal under the Immigration Rules which prevents those who have previously breached the UK’s immigration laws from re-entering. See here for more detail about re-entry bans.

This blog post was originally published in March 2014 and has been updated to address changes in the law since then. It is correct as of the new date of publication. Thanks to Darren Stevenson of McGill & Co for his assistance with the revision.