The United Kingdom formally left the European Union at 2300 GMT on 31st January 2020, with a transition period lasting until 2300 GMT on 31st December 2020. As this period draws closer to its end, so too does the UK’s involvement in the EU’s freedom of movement. This change will affect migration into the UK.
Brexit has had a significant effect on immigration law and continues to make waves amongst both migrant communities and Brits who live abroad. For one thing, British nationals living abroad in the EU, EEA or Switzerland are currently entitled to bring their family members to the UK in an immigration route that was largely established by the groundbreaking Court of Justice of the European Union (CJEU) Judgment in the 1992 case of Surinder Singh.
In this article, we focus on what Brexit means for British citizens living in the EU who hope to return to the UK with their family members.
What is the Surinder Singh route?
In a nutshell, the Surinder Singh case allows a British citizen living in another EEA country with their non-EEA national spouse or dependants to return to the UK with their family members – who have effectively gained free movement immigration rights under European law.
Surinder Singh was an Indian citizen who lived with his wife – a British citizen – in Germany. When the couple returned to the UK, Mr Singh was allowed to reside with his wife under UK immigration laws which granted him limited leave to remain. When the couple divorced, the UK authorities acted to remove Mr Singh from the country on the basis that he no longer had leave to remain – a decision that he challenged in the UK courts which duly referred the case to the Court of Justice of the European Union (CJEU).
Handing down its decision in case C-370/90, the CJEU rules that Mr Singh had a right to reside in the UK as his wife had previously exercised her own right to free movement by working in Germany. The Court held that a European Citizen would be discouraged from working elsewhere in the EU if they could not bring their family with them when returning to their country of origin. The Court ruled that an EU citizen who exercises their treaty rights by going to work in another Member State has the right to return with their non-EEA spouse, children and other dependants, regardless of their nationality.
When we look closer at the Surinder Singh route, it effectively means that a partner or family member of a British citizen who lived with them in an EU Member State or Switzerland can apply for settled status (with indefinite leave to enter or remain in the UK) or pre-settled status (with limited leave to enter or remain in the UK) under the EU Settlement Scheme.
As EU law will cease to be applicable in the UK at 2300 GMT on 31st December 2020, the UK has incorporated the essence of the Surinder Singh route within the UK immigration rules under Appendix EU. This means that a non-EU family member of a British national can apply for settled status (indefinite leave to enter or remain in the UK) or for pre-settled status (limited leave to enter or remain in the UK) under the EU Settlement Scheme.
With the UK’s participation in the freedom of movement ending on the 31st December 2020, the rights of British nationals to bring their non-British family members back to the UK are now time-sensitive. The family members of British nationals who wish to return to the UK can now rely on two major routes:
- Using a valid Article 10 or Article 20 residence card to travel to the UK as the non-EEA national family member of an EEA citizen, or as an EEA citizen family member exercising free movement rights in an EEA state of which they are not national.
- Applying for an EEA Family permit or EU Settlement Scheme family permit
Applying with an Article 10 or Article 20 card
Article 10 and Article 20 residence cards are documents issued under the EU Free Movement Directive by EEA Member States to the non-EEA family members of EU citizens. The holder of a valid Article 10 or Article 20 residence card can travel to the UK without the need to obtain an EEA or EUSS family permit – provided that they can evidence the fact that they are the family member of an EEA citizen (for instance, by showing a birth or marriage certificate). Once in the UK, an Article 10 or 20 card holder can then apply under the EU settlement scheme.
Article 10 residence cards or “Residence Cards of a Family Member of a Union Citizen” are available are issued to the non-EEA family members of EU citizens living and working in another EEA country. Article 20 residence cards, or “Permanent Residence Cards of a Family Member of a Union Citizen” are issued on the same basis.
It is worth keeping in mind that documents issued on any other basis will not provide the same rights and protections as Article 10 and 20 residence cards. Residence permits under domestic law (and not under EU law) will not exempt immigrants to the UK from the need to apply for a EEA family permit or EUSS family permit. Domestic residence permits are usually issued to the non-EEA family members of EU citizens who are living in their country of origin (e.g. the non-EEA spouse of a French citizen living in France will usually be issued a domestic permit).
If your family member does not have an Article 10 or Article 20 card, you may wish to consider applying for a family permit (granted for a period of six months) before applying from within the UK for 5 years’ of status under the EU Settlement Scheme.
Applying for an Family Permit or Family Visa under UK Immigration Law
British citizens living and working in the EU do not have to meet the strict criteria of UK domestic immigration laws to bring their partner or family member to the UK.
These requirements include meeting the financial requirement – which entails having a minimum income of £18,600 per year before tax, with an additional £3,800 for one child and £2,400 each for any additional children. Under domestic rules, the British citizen’s applicant partner will also generally be required to pass an English language test and other criteria.
It is therefore not only easier to meet the criteria for a Family Permit application than for a UK Family visa, but cheaper (as a UK Family visa application costs at least £1,033 and paying an Immigration Health Surcharge fee of over £1000). A Family Permit application is free. This route allows the spouse, civil partner, child, stepchild, parent, or parent-in-law of a British Citizen to enter and reside in the UK provided that they have exercised Treaty Rights in another EU state, and does not involve the same expensive application or extension fees of its UK law counterpart.
With Britain’s involvement in EU free movement coming to an end on 31st December 2020, time is running out for applications made under the Family Permit route. After the Brexit transition period ends, all applications will fall under UK immigration law. So it will be necessary for applicants to meet criteria such as the minimum financial requirement and English language testing.
What are the criteria for a Surinder Singh application?
To qualify for an application under the Surinder Singh route, it is necessary for a British citizen to prove that their main residence was in another EU member state for at least three months and that they and their family member had lived and integrated there together.
The British citizen must also have exercised their treaty rights in the EU member state. In order to exercise your treaty rights, you must work, be self-employed, self-sufficient, or a student.
To qualify for an family permit, you must be the partner or family member of a British citizen who meets the criteria outlined above. Eligible family members include:
- Spouses and civil partners
- Children and grandchildren (either under the age of 21 or dependant on their British family member)
- Parents and grandparents (where they are dependent on their British family member)
When do you need to apply by
To make an application for Family Permit before the rules change, British citizens and their family members will need to seriously consider the dates by which they must apply. The rules are based on Brexit day – the date upon which the UK formally left the EU. This fell on Friday 31st January 2020, and the following restrictions apply:
- British nationals who formed a relationship with their family member (spouse, durable partner, child, dependent parent) before 31st January 2020 must return to the UK before 29th March 2022.
- British nationals who started their relationship their family member (spouse, durable partner, child, dependant parent) after 31st January 2020 must have returned to the UK and apply before 31st December 2020.
- British nationals who wish to bring extended family members or dependant (a relative of your spouse/civil/durable partner) back to the UK must do so by 31st December 2020, and the relationship must have existed prior to returning.
Applications for an EEA family permit can be completed online and must be made from outside of the UK. For non-British nationals who wish to enter the UK at the same time as their British partner or family member, the eligibility criteria must be met in the EEA country where you are currently living, whilst those who want to join a British family member in the UK must prove that they met the criteria together in an EEA country.
Upon application, you must provide the following documents:
- a valid passport
- 2 passport size colour photographs
- evidence of your relationship to your British family member, such as a marriage certificate, civil partnership certificate or birth certificate
- your family member’s valid passport (or a certified copy if you cannot provide the original)
- a list showing when you’ve been in the UK – include the dates you arrived and left
- a list of any other UK visa or immigration applications you’ve made – include whether you applied from inside or outside the UK, and details of each visa or permission to stay if you were successful
- a list showing any removals, deportations, or other immigration penalties you’ve had in the UK.
In addition, the applicant and their British partner must provide evidence showing that they genuinely made their home in another EEA country, with proof that:
- you lived there together – including any addresses, time spent living at each address and proof of buying or renting a home; and
- you integrated there – for instance speaking the language, having children born or living there, or involvement in the local community.
It is also necessary to show that your British family member:
- was working, in self-employment, self-sufficient, or studying in the EEA country where you lived together; or
- if they returned to the UK more than 3 months before the date of your application, that they are working, looking for work, self-employed, self-sufficient, or studying in the UK.
Expert guidance to secure your family’s status
Brexit has brought about a wealth of changes to the way that UK immigration law works, and time is running out for British citizens who wish to return to the country with their partner or family member without having to satisfy the onerous criteria of a UK family visa application.
As the Brexit transition period draws closer to its end, Brits returning to the UK from EEA countries will need to make certain that any application made under the Surinder Singh route is completed effectively and at the right time.
As a specialist immigration law practice, the expert team at W H Solicitors have an intimate understanding of the rules surrounding family immigration into the UK. With extensive experience of making successful applications on behalf of our clients, you can be sure that your case will be dealt with in a sensitive yet professional manner.
Whether you need guidance on the criteria for an EEA Family Permit, or want to ensure that your application effectively proves that you made your life in an EEA country, we can help.
To secure a smooth return to the UK for you and your family, contact our experts today on (+44) 01483 608 786 or by emailing firstname.lastname@example.org. We will listen to your concerns, work with you to achieve your goals, and find the solution to any immigration problems you face.