EU Settlement Scheme Family Permit applications under the ‘Surinder Singh’ route and the upcoming deadline

The EU Settlement Scheme has been open since 2019, and is mainly targeted at EEA citizens who were residing in the UK before the end of the Brexit transition period on 31 December 2020 (and their family members). However, there are other more complex routes for applications under the EU Settlement Scheme which are open also to some non-EEA nationals, but based on EU law. One of these routes is called the ‘Surinder Singh’ route.

The Surinder Singh route is open to certain family members of British citizens, where they have lived together in an EU country before 31 December 2020 in accordance with EU free movement law; and allows the family member to return to the UK with the qualifying British citizen, or to join them in the UK. Those abroad seeking to apply on this route must first apply from outside the UK for an EU Settlement Scheme Family Permit, which allows them to enter the UK, before then applying for pre-settled status.

In order to be eligible to make an application for an EU Settlement Scheme Family Permit (and subsequently for pre-settled and settled status), an applicant must show that they are an eligible family member of what is called a ‘qualifying British citizen’. An eligible family member includes the spouse or civil partner, unmarried partner (in certain scenarios), child under 21, as well as other dependent close family members, and can be an EEA or non-EEA national. The British citizen must have been exercising their Treaty Rights in the EU country before 31 December 2020, and must continue to do so at the date of application or immediately before returning to the UK. The British citizen and their applicant family member(s) must have lived together in the EU country, and must prove to the Home Office that their residence there was genuine.

The requirements of a Surinder Singh application are complex. This is especially so as these types of applications under the EU Settlement Scheme have been complicated further by the fact that the Home Office have essentially ‘copied over’ a controversial aspect of the genuine residence requirement from previous EU law, which was previously effectively dis-applied after a case before the Immigration and Asylum Chamber. This controversial aspect of considering whether residence in the EU country is genuine relates to whether the applicant and the qualifying British citizen have moved the centre of their life to the EU country.  In light of the above, and as the Home Office applies close scrutiny to these types of applications, applications require to be thoroughly prepared. As such, we would suggest that those wishing to make a Surinder Singh application seek detailed legal advice in respect of the requirements and process.

Whilst the general EU Settlement Scheme deadline for applications was 30 June 2021, different deadlines apply to Surinder Singh applications – and these depend on when the family relationship between the qualifying British citizen and the family member was established.

If the family relationship was established after the UK left the EU on 31 January 2020, then the deadline to make the application and return to the UK has already passed – the deadline to do so was 31 December 2020, unless the applicant can demonstrate reasonable grounds for failing to meet the deadline.

If the family relationship existed before 31 January 2020, then the deadline to apply for an EU Settlement Scheme Family Permit and return to the UK under this Permit is 11pm GMT on 29 March 2022 (again, unless the applicant can demonstrate reasonable grounds for failing to meet the deadline).

Whilst the gov.uk website states that those who wish to apply have until 29 March 2022 to apply for an EU Settlement Scheme Family Permit, it is important to be aware that, in actual fact, the law behind the EU Settlement Scheme states that those who wish to apply for a Surinder Singh Family Permit must not only have applied by this date but have returned to the UK by 11 pm GMT on 29 March 2022. This means that not only must the application have been submitted, but the Family Permit must have been granted - and the applicant must have returned to the UK with the qualifying British citizen, or have joined the qualifying British citizen in the UK, by this date.

This is complicated by the fact that there are currently widespread delays in Home Office decision making. Whilst applications for the previous EEA Family Permits that existed pre-Brexit were decided within around 3 weeks, we are finding that applications for EU Settlement Scheme Family Permits are not being decided quickly - decisions can take up to six months. As applications are decided in strict time order in terms of the date of application, applicants who are considering submitting a Surinder Singh application should do so without delay.

Unfortunately, it may already be too late - some applications submitted now may not be decided before the deadline to physically return to the UK of 29 March 2022 has passed. At present, it is unclear what the Home Office position will be in respect of applications submitted before the deadline, but not yet been decided. In those scenarios, our view is that it is very possible that applicants may then need to then evidence to the Home Office reasonable grounds for their failure to meet this deadline. It remains to be seen what will happen in such situations.

If you would like any advice or assistance with an EU Settlement Scheme Family Permit application, please do not hesitate to contact our Immigration department and one of the experienced solicitors in our immigration team will be able to assist you.