EEA family permits under ‘Surinder Singh’ provision

Published: 05/07/2013

The Surinder Singh legal precedent was set back in 1992 and has been available as a route to bringing in a non-EEA partner or spouse to the UK on an EEA family permit, but it has not been seen as a viable alternative for most people until the new financial thresholds for sponsorship came into effect last year. Essentially, this special provision enables a British citizen to bypass the minimum income requirement by working in another EEA member state for a few months, after which they are considered as being eligible to sponsor their foreign partner, husband or wife under EU law rather than UK law as far as the visa/entry clearance is concerned.
The £18,600 minimum annual salary ruling has come as a serious blow to many families as it is above what almost half of waged UK citizens can expect to earn. The introduction caught many people out as they had been planning to come to the country, bring in a partner or spouse on a UK settlement visa, or another dependent family member for some time without taking this into account. Many families have been separated for months due to this threshold – which is higher if children are involved – and so people are taking the Surinder Singh route to both speed things up and avoid the problems of proving income or simply failing to qualify.
The principle is simple; EEA citizens have stronger migration rights than UK citizens, since they can bring in family members to the UK under EU regulations. Following this train of thought, it is considerably easier for someone from Italy or Spain living in the UK to bring in a foreign (i.e. non-EEA) partner or spouse and it is estimated that around 20,000 non-European family members enter the UK this way every year. As other immigration options are closed off an increasing number of people are using the Surinder Singh route and numbers are expected to rise sharply over the coming years.
Most people from the UK using this route tend to head for Dublin as the only English-speaking EEA member apart from the UK although other popular destinations are Portugal and France. Some EEA members such as The Netherlands and the Scandinavian countries have a reputation for being excellent English speakers and so many people head there as another option.
Many experts on immigration law expect the Surinder Singh route will be closed as soon as the legislation can be put in place, regarding it as a ‘loophole’ and that it makes a nonsense of the UK regulations. In particular, it is pointed out that non-British citizens taking advance of this route can bring family members into the UK from outside the EU more easily than can British citizens living and working in the UK on a permanent basis. Because this appears to be a case of EU law allowing the UK law to be flouted, some people believe that the practice should be stopped.
The UK Border Agency (UKBA), however, does not accept that the EEA Family Permit should be seen as a loophole, in that it reflects the current requirements of EU law and would not apply if someone went abroad to a member state for a short time just in order to circumvent the immigration rules. According to the guidelines, any application will be refused if it cannot be proved the British citizen was genuinely engaged in employment or self-employment in the country of application. However, opponents of the continuing of this route do point out that the UKBA website states that this is not an issue and that if this is the only reason a UK citizen enters a member state (i.e. to exercise an economic treaty right) they have every right to return bringing family members with them. Because of the numbers likely to be involved over the coming months, it is believed that legislation will be clarified to help UKBA staff and others involved in the administration of this issue.

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