Posted on April 19th 2013
In her reckless pursuit of lower immigration to the UK, Theresa May put UK citizens and settled people in a far less privileged position than EU nationals living in the UK. The rule changes Ms May implemented last year also meant that UK citizens living in other EU countries had more rights than if they lived in the UK. But thanks to a certain Mr Singh, they not only have more rights elsewhere in Europe, but they can bring them back to the UK under certain conditions. On the blogs and in the facebook groups of people affected by the family immigration rules, Surinder Singh has become a buzz word.
Surinder Singh himself was an Indian national working in Germany who married a British national who also worked there. They moved to the UK together, but the marriage broke down. Surinder was refused indefinite leave, then became an over stayer and deportation proceedings were initiated. In appealing against the proceedings it was argued that as his wife was a European citizen he should have originally been granted settlement rights, not the one year visa. In winning this case, in 1992, a legal precedent was set.
Now, twenty one years later we see people packing their bags and moving out of the UK to work in Europe and in doing so taking a major step towards reuniting their families in the UK. Dublin is a favourite, thanks to cultural similarities and a lack of language difficulties. But other destinations include in Italy, Spain, Germany and Portugal.
It is a move as good as sanctioned on the UKBA website. The guidance notes on EEA family permits clearly state:
“It does not matter if the only reason the British national went to another Member State was to exercise an economic Treaty right was so that he / she could come back to the UK with his / her family members under EC law.”
Initially it was the government position that if a British citizen had left the UK ‘in order to enable his family member to acquire rights’ the Surinder Singh route would not be available. Later, in the case of Akrich, JCWI secured the rights for people who had exercised Treaty rights regardless of motive.
There is nowhere which states if there is a required minimum period one has to be exercising Treaty rights for before qualifying for an EEA visa for a non-EU family member.
When a UK / Non-EU couple arrive at another European country, there is no requirement for them to show any documentation other than their passports and marriage / civil partnership certificate. However, in some places immigration officials are unfamiliar with the rules around exercising your Treaty Rights, it is worth having a letter outlining your intent, and quoting Directive 2004/38/ec of the European Parliament which establishes the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.
The Directive states:
“The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality.”
There’s some interesting accounts of people’s experiences and discussions cropping up on facebook and other fora. There are tips on job hunting, accommodation, thrifty living and employment and bank accounts.
These measures are legal, sanctioned in law and have nothing underhand or sneaky about them. People have been forced to take these routes to family unity here by farcical rules introduced by a Home Secretary who is hell bent on low immigration statistics whatever the human cost involved. The people having to pursue this route are, by definition, primarily low earners and the experience is not a cheap one. It is perhaps a dramatic display of love and determination to achieve family life.
Those that go through this experience should be applauded, especially by the mainstream political parties that constantly strain to be champions of family life. The worry is that their immigration rules are forcing families to become scattered and separated which is a costly matter for society. Politicians need to develop some consistency in their policies and start to genuinely promote family life for all they claim to represent.
The EU have published a more user friendly guide for people interested in living elsewhere in Europe.