New EU rules could tighten the Surinder Singh route for foreign-born spouses

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 and its documentary requirements and the awful elderly dependent relative rules – is resulting in an increasing number of split families. The old Court of Justice of the European Union case of Surinder Singh provides a potential means of bypassing the harsh UK immigration rules by relying instead in European Union free movement laws.  Essentially, the principle established by the Surinder Singh case is that the right in European Union law for a person to move from one 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 principle, the Surinder Singh route applies to all EU citizens – not just UK citizens. For example, a French husband could bring his Mexican wife into France by exercising his treaty rights in Spain. It also applies to qualifying dependent family members as well as spouses.

Hundreds of British citizens with foreign-born partners who depend on an obscure legal loophole to allow them to live together in the UK could now see their chances of family life made even tougher by the EU renegotiation, campaigners and lawyers have warned. Current rules insist a British spouse must earn more than £18,600 for their loved one to be allowed to join them in the UK, regardless of the income of the foreign spouse or the family’s assets and that is the reason why many have tried the Surinder Singh route.

The draft deal from the European commission, aimed at keeping Britain in the EU, includes a paragraph that seems intent on shutting down the loophole, agreeing “to exclude, from the scope of free movement rights, third-country nationals who had no prior lawful residence in a member state before marrying a union citizen or who marry a union citizen only after the union citizen has established residence in the host member state”. The draft deal also says member states should be able to use the “abuse of free movement rights” as a reason to deny a visa, if the couple “had the purpose of evading the application of national immigration rules”. Critics argue the current law on spousal visas penalizes around 43% of the UK population, particularly mothers of young children, public sector workers and those living outside London and the south-east, who are more likely to be low paid. Families have challenged the Home Office over the minimum income rules, with the final appeal set to be heard at the supreme court on Monday. The cruel reality is that even when the income has been only just below the threshold, or if the British partner has a young child, or a foreign partner has a cast-iron guarantee of earning more, the Home Office has never once exercised any discretion.

Some barristers specializing in immigration are skeptical whether the draft deal will be able to effectively shut down Surinder Singh. They agree It is part of the draft which comes under ‘clarifications’, not treaty change, and Surinder Singh is a right which comes under the EU treaty. Whether that ‘clarification’ will have any legal effect is questionable.

Couples, who went through the process, agree that the hardest part to accept was that, once again, monetary value has been placed on family life.

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