Since the introduction of the financial requirement in July 2012, many couples unable to overcome this hurdle have turned to the Surinder Singh route as a lifeline to allow them to be together in the UK.
For those not in the know, the Surinder Singh route (so named after a famous case), allows those British citizens who have exercised treaty rights in another member state (for example have been employed/self-employed) to return to the UK with their third country national spouse; their spouse on return being able to rely on a right to reside under EEA law as opposed having obtain permission to stay under the Immigration Rules.
Prior to the introduction of the financial requirement, this rule was used on occasion by couples who for one reason or another fell foul of the Immigration Rules. Post the rule change in July 2012, the popularity of this route soared and there are now communities of British citizens living with their foreign spouses in cities across Europe such as Dublin and Paris in order to meet Surinder Singh.
A key question from clients has been how long do we need to stay and work in the other European country before we can return to the UK? There is no legal requirement to stay for any particular period and in fact several weeks ago, I secured a Residence Document for a Pakistani national who had spent just 6 weeks with his British wife in Rome where she had worked as a leaflet distributor.
Unfortunately, it looks highly unlikely that results like this will happen in the future. Last month, the government placed restrictions on this route, designed to make it harder for couples to return to the UK under Surinder Singh. From 1 January 2014, in order to meet the relevant Surinder Singh regulations, couples will require to show that the British citizen has transferred "the centre of their life" to another member state.
Transferred the centre of their life
What does this phrase mean? The Regulations state that this assessment will be made by reference to a number of criteria, including the length of residence, the degree of integration and whether or not the British citizen has moved their principle residence to that other member state.
Like so many other of these subjective tests, we will no doubt have to wait until cases reach the court for there to be some proper guidance on how families can meet these tests. In the meant time, anyone attempting to avail this route; should arm themselves with as much evidence as they can of ties to the host country. Some examples would be a lease/tenancy agreement, evidence of registering with the relevant national authorities and evidence of a permanent employment contract.
For those who were living in the UK prior to 1 January 2014 with their spouse having returned from living together in Europe there are transitional provisions in place which may mean in certain circumstances that they do not have the meet the "transferred the centre of their life" test. Legal advice should be sought here.
A fundamental principle underpinning free movement rights is that Member States cannot introduce measures that have a disproportionate impact on their exercise, the Government have form for trying to restrict these rights, thankfully, the courts both at the domestic and European level have form for protecting them.
With the introduction of the new Regulations, the Surinder Singh route which was never straightforward has now become a great deal more complicated. Professional legal advice is strongly recommended in this area, for further information please contact Jacqueline or any member of our Immigration team