As the European Court of Justice held in Surinder Singh (Case C-370/90) a British citizen can rely on the EU law to bring his/her wife/husband/civil partner when he/she is returning to the UK in order to work or settle here in a self-sufficient capacity after working in another EU state.
The UK government has recently recognised the Surinder Singh case via Immigration (EEA) Amendment (No. 2) Regulations 2013 which amend Regulation 9 of the Immigration (EEA) Regulations and come into force on 1 January 2014.
The Surinder Singh visa route offers an easier way for British citizens to secure entry into the UK for their overseas family members, without having to comply with much more stringent UK immigration requirements such as the £18,600 minimum earnings and unprecedented savings requirement which apply to British citizens. By relying on Surinder Singh after living and working in another EEA country for 3 months,, British citizens can invoke their European citizenship rights which are superior to their rights as a UK citizen.
The following official explanatory note explains the change incorporated by the UK government in an effort to comply with the Surinder Singh judgement affecting use of Surinder Singh option by a British citizen seeking to be reunited with a non-EEA family member:
‘Paragraph 5 of the Schedule replaces the existing regulation 9 of the 2006 Regulations to require a British citizen to have “transferred the centre of his or her life” to another member State in order to acquire a right of residence in the UK for his or her non-EEA family member seeking a right to reside in the UK upon their return. Factors relevant to whether the centre of a person’s life has been transferred to another member State include the period of residence in that member State, the location of that person’s principal residence, and the degree of integration. These changes are to ensure that a British citizen engages in genuine and effective use of the rights conferred by Directive 2004/38/EC before a right to reside in the United Kingdom is conferred on a non-EEA family member.’
As can be seen from the above explanation, the Home Office has kept its tradition of complicating things for bona fide applicants by imposing a much stricter set of criteria than was originally established in the European court judgement – making an otherwise simple route difficult.
It is therefore imperative that the applicants who want to rely on this provision get proper legal advice and representation before making their application to ensure they are able to assert and succeed in establishing their EU rights in the UK.