The Surinder Singh Route
The ‘Surinder Singh ruling’ has been around for over 2 decades and has come to light and predominance in recent years, known and referred to as ‘Surinder Singh’ route. It has become increasingly common for British citizens wishing to be reunited with their family members whilst facing grave difficulties trying to satisfy the ever-changing UK immigration laws. On 9th July 2012, the UK made significant changes to immigration law aimed at reducing net migration, affecting direct and extended family members of British citizens residing outside of the European Union. The changes predominantly unfavourable for spouses of British citizens from outside of the European Union. As a direct result of these changes a huge influx of spouses/families living on opposite sides of the globe for numerous months/years trying to sustain and revive a long distance relationship which has carried a burden of immense strain for so long without a foreseeable outcome.
Numerous factors have led to an increase in British citizens opting for the ‘Surinder Singh’ route as an alternative to continue with their family lives.
The principal factor since changes in July 2012 being the minimum income threshold requirement currently standing at £18,600 per year and increases for every dependent child (£3,600 for the first child, £2,400 for each additional child per year). The income requirement has been very controversial with the UK population along with Parliamentarians.
The high income threshold which has been levied upon the British citizens is vastly unachievable for most as various reports and statistics show, around 47% of the UK working population would fall short of the required level of income as it is considerably higher than the national minimum wage (approximately £13,500 per year for full-time employment).
Research and studies also indicate that the income threshold requirement is highly favourable to certain people (Londoners) and is essentially subject to a postcode lottery. This is highlighted from the research reviews Office of National Statistics earnings for employees where data from employees across the 632 parliamentary constituencies in England, Scotland and wales show that the top 10 parliamentary constituencies with the highest average earnings are all based in London. Furthermore, it indicates that people from parts of the North West and South West of England, and across Wales are most likely to be affected due to lower than average earnings across these areas.
Another big factor is the implementation and constant amendments to the English language requirement which the foreign spouse has to satisfy. The present requirement is passing an approved English language test with at least CEFR LEVEL A1. The exam has to be taken with an authorised body which is recognised by the UKBA. The list of UKBA recognised institutions and there approved test centres in various countries have been shortened to a handful in recent years, thus making it harder and expensive to obtain.
Other factors include increasing application fees, introduction of health surcharge, evidential and supporting documentations, lengthy application decisions to name a few.
There is now a huge incentive for opting against the draconian UK immigration laws and rely on European Union ‘freedom of movement’ laws instead.
Surinder Singh Case
The case law that established this precedent was the European Court of Justice ruling in the case of R v Immigration Appeal Tribunal and Surinder Singh ex parte Secretary of State for the Home Department,  3 CMLR 358 ECJ.
Surinder Singh and his then British wife went through a divorce in the UK and his visa was due to come to an end. He successfully argued he should be treated under EU law and essentially, the principle established by the Surinder Singh case is 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 the judgment itself in Surinder Singh Case C-370/90 the court held that free movement laws:
“require a Member State to grant leave to enter and reside in its territory to the spouse, of whatever nationality, of a national of that State who has gone, with that spouse, to another Member State in order to work there as an employed person as envisaged by Article 48 of the Treaty and returns to establish himself or herself as envisaged by Article 52 of the Treaty in the State of which he or she is a national. A spouse must enjoy at least the same rights as would be granted to him or her under Community law if his or her spouse entered and resided in another Member State.”
Changes in the Surinder Singh Ruling
The most important change since Surinder Singh itself is the new case of O and B v The Netherlands Case C-456/12, handed down by the Grand Chamber of the Court of the European Union on 12 March 2014. Without much mentioning Surinder Singh, the judgment completely re-writes the legal basis of the earlier case and sets out important and binding new guidance.
The actual conclusion is as follows:
“Article 21(1) TFEU must be interpreted as meaning that where a Union citizen has created or strengthened a family life with a third‑country national during genuine residence, pursuant to and in conformity with the conditions set out in Article 7(1) and (2) and Article 16(1) and (2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, in a Member State other than that of which he is a national, the provisions of that directive apply by analogy where that Union citizen returns, with the family member in question, to his Member State of origin. Therefore, the conditions for granting a derived right of residence to a third‑country national who is a family member of that Union citizen, in the latter’s Member State of origin, should not, in principle, be more strict than those provided for by that directive for the grant of a derived right of residence to a third‑country national who is a family member of a Union citizen who has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national.”
- You must reside in a EEA state for at least 3 months.
- Weekend visits and vacations are not included for this process.
- Any EU citizen can benefit from this process not just workers/self-employed/students.
- During residence in EEA state, family life must have been created/strengthened.
- Abuse is impermissible.
Statement made regarding abuse in judgement:
“The scope of Union law cannot be extended to cover abuses… Proof of such an abuse requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the European Union rules, the purpose of those rules has not been achieved, and, secondly, a subjective element consisting in the intention to obtain an advantage from the European Union rules by artificially creating the conditions laid down for obtaining it.”
Those eligible to return to the UK through the Surinder Singh route set out in regulation 9 of EEA rules are:
- the spouse or civil partner of the British citizen, provided
they lived with the British citizen in the EEA state in which the British
citizen was exercising free movement rights;· direct descendants (children, grandchildren) of the British
citizen, or of the British citizen’s spouse or civil partner, provided
they are aged under 21 or dependent on the British citizen or the British
citizen’s spouse/civil partner; and· dependent direct relatives in the ascending line (i.e. parents
and grandparents) of the British citizen, or of the British citizen’s
spouse or civil partner.
Therefore, a financially dependent parent of a British citizen can qualify
under Surinder Singh/regulation 9, provided the British citizen was
engaged in genuine and effective employment or self-employment in another
EEA state before returning to the UK.