Before the Surinder Singh Case C-370/90, non-EU family members of British citizens faced harsh domestic immigration rules for immigrating into the UK. Unlike family members of EEA Citizens, non-EU family members of British citizens did not enjoy the same free movement rights as guaranteed under European Union law. Although British citizens are also EEA citizens, the inapplicability of the European Union law was due to the lack of ‘movement’ between European states and instead, the high thresholds of domestic immigration law was operative for the non-EU family members (i.e. english requirement and financial requirements etc). However, the European Court of Justice provided a new route for non-EU family members of British Citizens in Surinder Singh Case C-370/90 in establishing a precedent for British Citizens who genuinely has established life in EEA state to secure immigration rights for their non-EU spouses. The O and B v The Netherlands Case C-456/12 has since altered the law but the principle still stands.
What happened in Surinder Singh Case C-370/90?
In this case, Singh, an Indian citizen, moved to Germany with his British wife for several years where they worked. Upon return to the UK, Singh was allowed to reside with his wife on limited leave to remain. However, the couple then divorced which raised the issue of whether Singh had a right to reside in the UK on the basis of EU law. The European Court of Justice held 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. This right of return would also extend to his spouse and children for if on returning to his home country, the persons spouse and children were not permitted to enter and reside the in the citizen’s country of origin, the person would be deterred from leaving his home country to work in another Member State. Thus, a EU citizen who leaves his country of origin to work in another Member State, has the right to be accompanied by his spouse and children, regardless of their nationality, upon returning to his home country, as per European Union law, not domestic immigration law. The relevant European Union law here is captured in Directive 2004/38.
How does O and B v The Netherlands Case V-456-12 affect the Surinder Singh Route?
In this case, the issue was whether non-EU family members of Netherlands nationals could derive a right of residence in the Netherlands from Directive 2004/38 and Article 21(1) of the Treaty on the Functioning of the European Union (TFEU). The Court of Justice of the European Union (CJEU) held that Directive 2004/38 did not establish a right of residence for non-EU family members of an EU citizen in his home Member State but held that residence rights could be derived from Article 21(1) of the TFEU. The CJEU applied Directive 2004/38 through analogy and held that Article 21(1) of the TFEU was operative ‘where the residence of the Union citizen in the host Member State has been sufficiently genuine so as to enable that citizen to create or strengthen family life in that Member State,” implying a requirement of three months of lawful residence in the host Member State in accordance with Article 7 of Directive 2004/38. Thus the two requirements from O and B v the Netherlands Case are a) at least three months residence in another EU member state and b) creating or strengthening family life during that time.
What is the UK Government’s approach to the Surinder Singh Route?
The UK government has adopted a ‘centre of life’ approach with the Surinder Singh route, originating from the Advocate General’s Opinion, as follows:
You may be able to apply for an EEA family permit as a family member of a British citizen who has worked in another EEA country. To be eligible, you must be a national of a country outside the EEA and related to a British citizen as their:
- spouse or civil partner
- child or grandchild (or the child or grandchild of their spouse or civil partner) and under 21 years of age or dependent on them
- parent or grandparent (or of their spouse or civil partner) and dependent on them
You must also be able to show that the British citizen genuinely lived (based their ‘centre of life’) in the EEA country in which you were both resident before returning to the UK. If you’re the spouse or civil partner of a British citizen you must also have lived with them in another EEA country where they worked or were self-employed before returning to the UK.
Factors relevant to whether the British citizen’s ‘centre of life’ has transferred to another EEA state include; a) the period of residence in the EEA State as a worker or self-employed person; (b) the location of the person’s principal residence; and (c) the degree of integration of the person in the EEA state. However, it must be noted that the UK’s ‘centre of life’ approach is not adopted by the final judgement of the CJEU and thus, amendments in the future may occur here with regards to the UK government’s approach to the Surinder Singh route.
For further information on the Surinder Singh route or other related immigration matters, please feel free to contact our immigration lawyers in Glasgow on 0141 332 9888 or via our online enquiry form. Your initial consultation with our solicitors is free and we are more than happy to help!
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