Surinder Singh Route: A Right Not a Loophole (2017)
By Danielle Cohen Immigration Law Solicitor LinkedinDanielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
The Surinder Singh Immigration route is a route for British citizens who have lived in a European country to bring their partners back with them when they return to Britain. The Surinder Singh route has become well known and since the introduction of the minimum income rules and the vast amount of documents which are required to make an entry clearance application the route has become more and more popular. It is known that the Immigration Rules which were introduced in July 2012 resulted in an ever-increasing number of split families. The Children’s Commissioner has described affected families with children as “Skype families”. An old Court of Justice of the European Union case called Surinder Singh provides the potential means to rely on family friendly EU free movement laws rather than the UK Immigration Rules.
The story behind Surinder Singh
Mr Singh is an Indian citizen who worked with his British wife in Germany for several years. The couple then returned to the UK where he was allowed to reside with his wife on the basis of the UK Immigration Rules. The couple then divorced. The UK authorities decided to curtail his leave to remain and order his removal from the UK. Mr Singh challenged the decision before the UK Courts, which then decided to refer the matter for an opinion from the ECU Court of Justice on whether Mr Singh had the right to reside in the UK on the basis of the EU law.
The ruling was handed down on 7th July 1992 and the Court ruled that Mr Singh had a right under EU law to reside in the UK on the basis that his wife had previously exercised her right to free movement by working in Germany. The Court explained that a European citizen might be deterred from leaving his country of origin in order to work in another EU country if, on returning to his home country, his spouse and children were not also permitted to enter and reside in the citizen’s country of origin under the same conditions that applied to an EU citizen going to live in an EU country other than his home country. T
The EU Court therefore ruled that an EU citizen who had gone to another member state in order to work there and returns to his home country has the right to be accompanied by the spouse and children whatever their nationality under the same conditions as laid down by the directive which governs residence rights.
The Surinder Singh case has been given effect in the UK law by Regulation 9 of the Immigration (European Economic Area) Regulation 2006. The Home Office has issued guidance to explain how the Surinder Singh rule applies in the UK and the EU Court has only so far recognised the right of spouses and children of EU citizens to return home after exercise free movement rights in another EU country. The UK Upper Tribunal ruled on 14th October 2014 that Regulation 9 also applies to unmarried partners.
A right not a loophole
People say that Surinder Singh is a loophole but it is not. It is a right enshrined in EU law by the EU Court of Justice since 1992. The case has been incorporated into UK law by Regulation 9 as stated above. The question on the eve of Valentine’s Day is what happens to this option if the UK leaves the EU?
A lot will depend on the terms of the UK exit and that will need to be negotiated under Article 50 of the Treaty on European Union. If the UK was to leave the EU, but agreed to join the European Economic Area for example, like Iceland, Liechtenstein and Norway, then the Surinder Singh case would continue to have the same effect by virtue of Article 28 of the EEA agreement. If the United Kingdom was to negotiate a stand-alone agreement on free movement of persons like Switzerland, then this case will have effect for the purposes of interpreting any such stand-alone agreement.