On 29 March 2022 at 2300 GMT, the route for British Citizens to make applications under the EU Settlement Scheme for family permits for their family members to return with or join them in the UK will close.
British Citizens Returning to the UK With Family Members After Residing in the EU
The provisions governing these applications (see also our previous post here) are set out in Appendix EU (Family Permit); specifically at FP6(2), as follows:-
The applicant meets the eligibility requirements for an entry clearance to be granted under this Appendix in the form of an EU Settlement Scheme Family Permit, where the entry clearance officer is satisfied that at the date of application:
(a) The applicant is a specified EEA citizen or a non-EEA citizen;
(b) The applicant is a family member of a qualifying British citizen;
(c) The qualifying British citizen is resident in the UK or will be travelling to the UK with the applicant within six months of the date of application;
(d) The applicant will be accompanying the qualifying British citizen to the UK (or joining them in the UK) within six months of the date of application; …
Why Is This Called the 'Surinder Singh' Route? – A Brief History of the Development of These Provisions
Mr Surinder Singh, an Indian national, married a British citizen in the UK in 1982. They moved to Germany where his wife exercised her right to free movement under the EU Treaties, and they both worked there between 1983 and 1985. They moved back to the UK, and in 1986 Mr Singh was granted leave to remain as the husband of a British national. Sadly, their marriage ended in 1987, and his leave to remain as a spouse was curtailed. He appealed his decision, stating that he had a right to remain because, in moving back to the UK after pursuing economic activity in another EU member state, he and his wife had exercised free movement rights, and he was entitled to a continuing right of residence in the UK, which he retained after his divorce. The matter was referred by the High Court to the European Court of Justice in July 1992 (Case C-370/90), which found in his favour.
Thus was the 'Surinder Singh' route firmly established by case law from the ECJ; those British citizens who had worked and established their homes in other EU member states could bring their non-EEA family members who had lived with them there to the UK without having to make applications for entry clearance under the other Rules for settlement for family members. They could bring children up to the age of 21 and their other dependent family members such as elderly parents. This route became particularly important when, in 2012, Appendix FM entered into force, which imposed far stricter requirements on applications for family members (see our website for further information), and which made applications from adult dependent relatives so strict as to almost impose a ban on their entry .
The ruling from the ECJ did not completely clear all obstacles; the guidance relating to Surinder Singh applications imposed more and more requirements as to what evidence should be provided to demonstrate that a British citizen had, in fact, established their home with their family member in the member state in question, often without foundation in EU law.
The rights of unmarried (durable) partners to rely on the Surinder Singh route was in turn successfully confirmed by further challenges to the Home Office (Case C-89/17 Banger), including their right to appeal to the Immigration Tribunal.
Preserving the Route After Brexit
It was feared that the Surinder Singh route, which had seen so much litigation over the years and was seemingly so unpopular with the Home Office, would not survive to feature as part of the arrangements set out in the Withdrawal Agreement. This was an unfounded fear, and as the legislation to put the terms of the Withdrawal Agreement was rolled out, the 'Surinder Singh' route was found to have been preserved in the Appendix EU (Family Permit) provisions – for a limited time period.
There are dates to note in the Brexit process which are relevant to discussions about the 'Surinder Singh' route after the withdrawal; the first is that the UK formally withdrew from the EU on 1 February 2020. This date is important in 'Surinder Singh route' applications under the EU Settlement Scheme, for the provisions state that the relationship with the British citizen should have been established before this date, the formal date of withdrawal. This means that if it is a spouse of a British citizen they should have been married before 1 February 2020, and if an unmarried (durable) partner they should have been cohabiting for at least two years before that date. Children of the British citizen (and dependent children of non-British partners under 18), including children born after this date, are able to be included. Dependent family members who are members of the household and remain dependent are also included in the provisions.
Another date which is frequently referred to in Appendix EU is the 'specified date', which is the end of the withdrawal period (31 December 2020)
The important date for Surinder Singh applications is 29 March 2022, which is the date by which the family members of British citizens must apply for a family permit under the EU Settlement Scheme. The route will then close. Thereafter they will need to apply for entry clearance under Appendix FM, which has quite stringent financial and English language requirements, see our blog post here. Similarly, adult dependent relatives of British citizens will be subject to the more stringent requirements for entry.
Does the Deadline of 29 March 2022 Relate to Entry Into the UK, or to Making the Application for a Family Permit?
The provisions in Appendix EU (Family Permit) specifically state that the family member of a British citizen must enter the UK with the Family Permit before 29 March 2022 – throughout the legislation the rules say "return to the UK… before 2300 GMT on 29 March 2022 (or later where the entry clearance officer is satisfied that there are reasonable grounds for the person's failure to meet that deadline)". However, the Home Office website states that the deadline applies to making the application; i.e. this guidance appears to state that the application for the Family Permit must be made before that date, which would imply that the travel to the UK (within the validity of the family permit entry stamp issued) can happen thereafter even if after 29 March 2022. There further have been widely-publicised delays in processing Family Permit applications under the EU Settlement Scheme, making the travel of the family members to the UK before this date untenable.
In response to questions about this seeming disparity in policy, the Home Office have issued assurances to immigration practitioners and representative organisations which state that where an application is made before the deadline of 29 March 2022, it will be processed and a Family Permit will be issued where the applicant is eligible. Further the applicant's entry into the UK with the Family Permit to make an application for Pre-Settled Status (see below) in such circumstances will be considered to have provided a 'reasonable excuse' for not entering before that date. This will not be an open-ended timeframe, as the assurances have gone on to state that entry in such circumstances should be made without 'undue delay'.
Best practice would therefore now be, in the light of the processing delays, to make representations with the application to state that, should entry after 29 March 2022 be necessary, the application has been made before the deadline, and therefore a 'reasonable excuse' for not entering the UK before that date is provided.
What Happens After the Family Member Enters the UK With a Family Permit?
Once a family member has entered the UK, an application will need to be made for Pre-Settled Status under the EU Settlement Scheme, using the Family Permit to make the application. Here is a link to information on our website which gives further information about making this application, and to the relevant Home Office website.
What Is a 'Family Permit'
The family permit, once granted, will consist of a 'vignette' or paper stamp placed in the family member's passport, giving validity dates (the Home Office website states that they are usually issued for 4 or 6 months); the family member must enter the UK within the validity of these dates. There is scope for extending these dated vignettes if there is a 'reasonable' explanation for not entering the UK before expiry.
Once in the UK, the family member must apply for Pre-Settled Status using their family permit within 3 months of entry, see again the Home Office website.
Who Is a 'Qualifying British Citizen'
Appendix EU (Family Permit) is quite succinct legislation; the detailed requirements are to be found in Annex 1 – Definitions. Also within these definitions the criteria for family members are found, be they unmarried partners, children, dependent parents, and other dependent relatives, and the criteria is often more complex than the rules themselves.
The definition states that a qualifying British citizen under these rules is a British citizen who is returning to the UK with their family members (the applicant) before 2300 GMT on 29 March 2022. If entering later than that date they must provide reasonable grounds as to why they are entering later than that date – this provides scope for those whose applications were not determined before 29 March 2022, and for those who are delayed from travelling before that date.
Further, the qualifying British citizen must meet the 'old' (Surinder Singh) conditions from the previous EEA Regulations [The Immigration (European Economic Area) Regulations 2016], specifically regulations 9(2), 9(3) and 9(4)(a) which are as follows (note that 'BC' means 'British Citizen', 'F' means 'Family Member'):-
(Regulation) 9 – Family members of British Citizens
… (2) The conditions are that—
(a) BC—
(i) is residing in an EEA State as a worker, self-employed person, self-sufficient person or a student, or so resided immediately before returning to the United Kingdom; or
(ii) has acquired the right of permanent residence in an EEA State;
(b) F and BC resided together in the EEA State; and
(c) F and BC's residence in the EEA State was genuine.
(3) Factors relevant to whether residence in the EEA State is or was genuine include—
(a) whether the centre of BC's life transferred to the EEA State;
(b) the length of F and BC's joint residence in the EEA State;
(c) the nature and quality of the F and BC's accommodation in the EEA State, and whether it is or was BC's principal residence;
(d) the degree of F and BC's integration in the EEA State;
(e) whether F's first lawful residence in the EU with BC was in the EEA State.
(4) This regulation does not apply—
(a) where the purpose of the residence in the EEA State was as a means for circumventing any immigration laws applying to non-EEA nationals to which F would otherwise be subject (such as any applicable requirement under the 1971 Act to have leave to enter or remain in the United Kingdom) ; …
Therefore the British Citizen must provide evidence that they were exercising Treaty rights in the EU state and living with their family members there before coming to the UK, and their residence there together must have been 'genuine'. Here is a link to the guidance relating to the conditions for British citizens returning to the UK with their family members under the EEA Regulations; they have been controversial throughout their validity as it has been argued that they fetter and thus contravene the principles of free movement. However the conditions have been imported into Appendix EU (Family Permit), so they will need to be addressed in a 'Surinder Singh' Family Permit application.
Who Is a 'Family Member' of a Qualifying British Citizen?
Again, the definitions of who is a family member of a qualifying British citizen are set out at length in Annex 1 of Appendix EU (Family Permit). We have previously discussed some of the criteria for family members under the Appendix EU provisions in a previous blog post, but broadly the definitions for the 'Surinder Singh' route are as follows:-
A family member must satisfy the entry clearance officer with evidence of their family relationship to the qualifying British citizen or their spouse/civil partner (briefly, the actual definitions in the annex are famously complex) as follows:-
• If a spouse or civil partner, that they were married or entered into a civil partnership before 31 January 2020 (the date of withdrawal) or was contracted before that date, and the relationship is still subsisting;
• If a durable (unmarried) partner, that they have been cohabiting for two years or more before the withdrawal date (31 January 2020) and the relationship is still subsisting;
• If a child, that he or she is their child or adopted child and is under 21;
• If a dependent parent, they are their parent or grandparent of the British citizen (or of their spouse or civil partner) and
o were dependent at the date of withdrawal; or
o if they became dependent after that date:
• "having regard to their financial and social conditions, or health, the applicant cannot meet their essential living needs (in whole or in part) without the financial or other material support" of the British citizen or their partner but
• "there is no need to determine the reasons for that dependence or for the recourse to that support";
• If a dependent relative (not a partner, child or parent, see above), including grandchildren and adoptive children of durable partners under 18), they must be "a member of their household or in strict need of their personal care on serious health grounds", and this dependency must have existed before 31 January 2020 (the date of withdrawal) and continue at the date of application
Note again that the 'date of withdrawal' (31 January 2020 at 23.00 GMT, as defined in Annex 1) is the date by which marriages, civil partnerships, unmarried partnerships and dependency for dependent relatives should have taken place or have been established in order to meet the requirements to accompany the British citizen to the UK with a Family Permit.
What Happens After 29 March 2022?
Those British citizens wishing to return to the UK with their family members will need to make applications under Appendix FM, see again our website for further information.