Under EU free movement law, British citizens who had been exercising “treaty rights” in the European Economic Area and then decided to move back to the UK could sponsor their family members to come with them. This allowed them to use the friendlier EU law rules on family migration, rather than the harsher domestic rules (i.e. Appendix FM or Part 8 of the Immigration Rules). This became known as the “Surinder Singh” route after the judgment that first established the right of British people to use EU law in this way.

The Surinder Singh route continued after Brexit, allowing Brits exercising treaty rights abroad by 31 December 2020 to return to the UK with their family members using EU law – but only until 29 March 2022.

A whole six days before this deadline, the Home Office updated its Surinder Singh guidance to tell caseworkers how they should approach those who want to apply late. (I am focusing on the deadline as this is the most significant update to the guidance, but there are also additions to the section on how the Home Office assesses the genuine residence of the British citizen in the EEA country that are worth noting.)

Immigration Rules on late Surinder Singh applications

Appendix EU to the Immigration Rules covers Surinder Singh cases. It says that sponsors (referred to as “qualifying British citizens”) and their Surinder Singh family members must return to the UK by 29 March 2022. The family member must then make an application for pre-settled or settled status under the EU Settlement Scheme by the same date.

The first step — returning to the UK by the deadline — requires a type of visa called a family permit. Those familiar with family permits will know that they are beset by delays: even if you planned many months ahead and have already applied, there is a good chance you will still be waiting for a decision today. In this situation, you will have missed the deadline.

But Appendix EU also allows for late Surinder Singh applications where there are “reasonable grounds for the person’s failure to meet that deadline”. What the updated guidance tells us is what the Home Office should accept as “reasonable grounds” in different situations.

Guidance on “reasonable grounds” for late applications by sponsored family members

If you applied for a family permit in time

If the sponsored family member has applied for a family permit by the 29 March deadline but hasn’t got it yet, they will obviously be unable to return to the UK in time. The guidance confirms that is fine:

where the family member was issued an EU Settlement Scheme (EUSS) family permit on the basis of a valid application under Appendix EU (Family Permit) made by 23:00 GMT on 29 March 2022, you may be satisfied there are reasonable grounds for their failure to meet the 29 March 2022 deadline. The applicant does not need to provide, and you do not need to consider, any further information as to why that deadline was not met.

People in this position then need to make their Settlement Scheme application within three months (ideally sooner):

In the case of an applicant subject to the 29 March 2022 deadline for returning to the UK, where they were issued an EUSS family permit applied for by 23:00 GMT on 29 March 2022, you may be satisfied there are reasonable grounds for their failure to meet the 29 March 2022 deadline for their EUSS application, provided they make that application as soon as they reasonably can (and generally within 3 months) following their arrival in the UK. The applicant does not need to provide, and you do not need to consider, any further information as to why the EUSS application deadline was not met.

If you missed the family permit deadline

Those who only apply for a Surinder Singh family permit after 29 March will need to have valid reasons – supported by evidence wherever possible – for their failure to meet the return deadline.

Non-exhaustive examples of valid reasons include:

• Work or study in the EU country that does not conclude by 29 March but ends within six months. The exact language refers to an “employment contract” or “formal course of study”. I take this to mean that work will only be a valid reason where it was known that the employment would end within six months of 29 March, and not if the person quits their permanent employment three months after the deadline.
• Where a child would have to be taken out of school in the middle of the term for the family to return in time to meet the deadline.
• Serious medical conditions or significant medical treatment.
• Pregnancy or maternity.
• Other compelling practical or compassionate reasons.

The guidance confirms that if the entry clearance officer accepts there are reasonable grounds for the late family permit application, that decision will carry over into the application for pre-settled or settled status once the family member has arrived in the UK. In other words, they do not have to re-justify missing the deadline for the second application all over again.

If you returned in time but missed the second deadline

Although Surinder Singh family members present in the UK by 29 March meet the Appendix EU definition of a “family member of a qualifying British citizen”, they still have to apply for pre-settled or settled status by this date in order to meet the “required date” definition. Failure to do so requires the person to give a good reason when they do apply.

The guidance gives non-exhaustive examples of reasons the Home Office may accept:

• Serious medical condition or significant medical treatment
• Pregnancy or maternity
• Other compelling practical or compassionate reasons

These are more restrictive than the grounds for EU residents of the UK and their family members applying late to the “main” Settlement Scheme. There seems to be less sympathy for British citizens and their families disrupted by Brexit. Worryingly, the guidance does not include ignorance of the deadline as a reason for applying late.

Time will tell if the Home Office adopts a reasonable approach to those applying late or if the desire to push them towards paid Appendix FM applications proves too strong.

And what about the British citizen sponsor? 

The main focus of the guidance on late applications is understandably on the sponsored family member themselves. However, the definition of “qualifying British citizen” in the Rules requires the sponsor to have returned to the UK by 29 March 2022 as well, unless there are reasonable grounds for their failure to do so. The question therefore is: if the sponsored family member is accepted as having a good reason for not returning to the UK by 29 March, does this automatically extend to the British citizen family member?

Common sense would suggest it should, but the guidance does not explicitly say that “reasonable grounds” for late return of the sponsor are the same as for late return of their family member. British citizens of course do not need a family permit to enter the UK, so in principle have no immigration reason to miss the return deadline. In practice, sponsors are unlikely to have left their families behind to come to the UK separately.

It would have been helpful for the guidance to clarify this point properly, as clearly the preference of many families will be to remain together whilst waiting for the family permit (particularly if they have children). We are dependent on decision-makers being pragmatic when looking at British citizens who stayed with their families out of preference, rather than strict necessity, causing themselves to miss the 29 March deadline to be back in the UK. 

What if the Home Office says there aren’t reasonable grounds to apply late?

In the main EU Settlement Scheme, a decision that the applicant does not have reasonable grounds for missing the deadline results is subject to an administrative review and/or appeal in the immigration tribunal. Although it is not explicitly stated in the Surinder Singh guidance, late applicants who are rejected for not having a good reason are presumably entitled to the same avenues of redress.