New draft EU rules could make life difficult for hundreds of British citizens relying on legal precedent known as the ‘Surinder Singh route’ which allows them to bring their foreign spouse to the UK on an EEA family permit as opposed to applying for a settlement spousal visa under UK immigration Rules. Hundreds of British citizens could be prevented from bringing their loved ones to the UK using the EEA family permit scheme if David Cameron’s recent deal negotiated with the EU leaders will come into effect following the upcoming referendum on Britain’s membership in the EU.
Under the current family immigration rules, a British citizen must earn more than £18,600 a year in order for their spouse to obtain a UK marriage visa to settle in the UK. Neither the expected earnings of their foreign spouse nor any non-liquid assets held by the family will be taken into account by UK Visas and Immigration (UKVI) when considering a settlement visa or further leave to remain application. Even when a couple has children or has been married and living outside the EU for many years, it is still necessary to prove that the British citizen can meet the income thresholds requirement on their own. Meeting these immigration requirements would be impossible for many people, including anyone working full time on the minimum wage. An estimated 47% of people would be unable to afford to bring a non-European spouse into the country on a UK spouse or partner visa. British mothers caring for young children, public sector workers, and anyone living outside high-earning London and the southeast are most likely to be affected.
Some families have found a way around this requirement by taking what has become known as the Surinder Singh route, but there are fears that this could soon be closed to families who face separation if they cannot prove high enough earnings. The Surinder Singh route works by using the EU’s freedom of movement rights to bring the spouse of a British citizen into the country, rather than by doing it directly through a UK settlement marriage visa issued under UK immigration Rules. Using this loophole is not easy. It requires the sponsoring British citizen to relocate to another EU country, giving up their home and job in the UK. If their non-European spouse lives with them in the EU during this period, both partners will then be able to move together to the UK using an EEA family permit, without having to meet the minimum income requirement.
The new draft from the European Commission includes a paragraph that seems intended to shut the Surinder Sing loophole, since it purports “to exclude, from the scope of free movement rights, non-EU nationals who had no prior lawful residence in a member state before marrying an EU national or who marry an EU national only after they have established residence in the host member state.” The draft also intends to allow EU member states to refuse a family visa if granting the latter would involve an “abuse of free movement rights,” if it is determined that couples are intending to evade national immigration rules. The changes are intended to make immigration fairer by eliminating a right that citizens of other EU countries can use more easily than British nationals. However, making it impossible for British citizens to use the EEA family permit route under Surinder Singh provision to bring their foreign spouses to the UK does not make the situation fairer. Genuine, lower income couples with one British partner are going to suffer if these changes close the EEA family permit scheme.
The only hope for these families is that an appeal currently in motion will convince the Supreme Court to alter the minimum income rules for the UK marriage visa, or that this part of the agreement will not have the anticipated effect. The section in question appears as a clarification rather than as a treaty change, which could mean that the Surinder Singh route protected by the EU treaty will not be closed off completely.