Appendix FM and Surinder Singh: Manufacturing EEA Rights and Evading the Financial Minimum Income Threshold Requirement?

The pressing issue  for some time in the media  has been as regards  the  European refugee crisis.  Whilst the crisis  was  on going,  Theresa May, on 6 October 2015  managed to find time to  squeeze in   proposed  changes  as regards the “new British approach”  in relation to dealing with  asylum  claimants and  refugees- changes  which appear  intent,  arguably, upon eroding   established   rights in relation  to this  group.   Less than a month prior to Mrs May’s  October speech, on 17 September 2015 a  new Immigration  Bill  was published  which is  expected to come into effect in 2016 and along with it   brings yet further  unwelcome changes.  Yet again on  20 October 2015,  the Government  announced   that from 1 February 2016, all private landlords in England will have to check that new tenants have the right to be in the UK before renting out their property.  On 13 October 2015, the UK  Government  had fresh  success in relation to the issue of deportation of foreign national criminals    in Kiarie, R (On the Application Of) v Secretary of State for the Home Department [2015] EWCA Civ 1020, with the Court of Appeal  in effect   upholding the  Government’s  “Deport first, Appeal later “   policy following their guidance and interpretation of section 94B of the Nationality, Immigration and Asylum Act 2002, as inserted by the Immigration Act 2014.  Whether that challenge proceeds to  the Supreme Court, having regard to  length of time  it has taken for MM v Secretary of State for the Home Department [2014] EWCA Civ 985( challenge to the financial minimum income threshold),  to be heard in the Supreme Court,  it maybe that the  “Deport first, Appeal later” policy  will in the meantime  time have already been  extended to  non – deportation appeal cases.

Despite all these changes, it is  difficult to ignore  the fact that  the currently existing  negatively  impacting  changes in relation to family migration  as regards the introduction  of the  financial minimum income threshold,  brought into effect   on 9 July 2012,  is still  undesirably  affecting would be applicants and their children including   those already refused leave to enter or remain   for failure to meet the necessary requirements.

Having regard to the current circumstances, the question is whether there is  an alternative  option that in effect permits   the   evasion   of  the financial  minimum  income threshold so as to enable British Sponsors to  bring   their partners/spouses   to the UK via the  Surinder Singh route?

WHAT ARE THE CURRENT NATIONAL PROVISION   REQUIREMENTS?

From 9 July 2012,  the UK Government  has required  via Appendix FM of  the Immigration Rules,   that a financial requirement  of £18,600 be met by  applicants applying for entry clearance,  leave to remain  or indefinite leave to remain in the UK as the non-EEA national partner of a person who is a British Citizen; or present and settled in the UK; or in the UK with refugee leave or humanitarian protection.

Appendix FM provides:

Definitions

GEN.1.2. For the purposes of this Appendix “partner” means-

  • (i) the applicant’s spouse;
  • (ii) the applicant’s civil partner;
  • (iii) the applicant’s fiancé(e) or proposed civil partner; or
  • (iv) a person who has been living together with the applicant in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application, unless a different meaning of partner applies elsewhere in this Appendix”

Therefore where an applicant is not exempt,  there is financial  minimum income threshold that must be met. The minimum income threshold for a partner applying under Appendix FM from 9 July 2012 without dependent children, is £18,600.  An additional gross annual income of £3,800 is required for the first child sponsored in addition to the partner and an additional £2,400 for each further child.

The financial requirement does not apply to a child who is  a British Citizen (including an adopted child who acquires British citizenship); is an EEA national (except where a non-EEA spouse or partner is being accompanied or joined by the EEA child of a former relationship who does not have a right to be admitted to the UK under the Immigration (EEA) Regulations 2006); is  settled in the UK or who qualifies for indefinite leave to enter; or qualifies otherwise under Part 8 or Appendix Armed Forces of the Immigration Rules in a category to which the financial requirement does not apply.

Where the applicant has to meet the minimum income threshold, the financial requirement can be met in the following 5 ways:

  • Income from salaried or non-salaried employment of the partner (and/or the applicant if they are in the UK with permission to work).
  • Non-employment income, e.g. income from property rental or dividends from shares.
  • Cash savings of the applicant’s partner and/or the applicant, above £16,000, held by the partner and/or the applicant for at least 6 months and under their control.
  • State (UK or foreign) or private pension of the applicant’s partner and/or the applicant.
  • Income from self-employment, and income as a director of a specified limited company in the UK, of the partner (and/or the applicant if they are in the UK with permission to work).

If the applicant’s partner is in receipt of any of the following benefits or allowances in the UK, the applicant will be able to meet the financial requirement at that application stage by providing evidence of “adequate maintenance” rather than meeting an income threshold:

  • Carer’s Allowance.
  • Disability Living Allowance.
  • Severe Disablement Allowance.
  • Industrial Injuries Disablement Benefit.
  • Attendance Allowance.
  • Personal Independence Payment.
  • Armed Forces Independence Payment or Guaranteed Income Payment under the Armed Forces Compensation Scheme.
  • Constant Attendance Allowance, Mobility Supplement or War Disablement Pension under the War Pensions Scheme.

SOME DISADVANTAGES TO APPLICANTS WITH THE CURRENT SYSTEM IN PRACTICE

The income threshold can be considered  by some to be too high   and  some applicants cannot  or will never be able to meet the requirement.

Decision-makers cannot exercise any discretion or flexibility with regard to the level of the financial requirement that must be met.

Promises of support from a third party cannot be counted towards the financial requirement.

Although the ways for meeting the  financial  requirement  are varied, the rules as  regards  which  sources can and cannot be combined with each other  may be   quite complex  for some legally unassisted applicants.

Not only must regard be had to the requirements in Appendix FM itself but also Appendix FM-SE which sets out the evidential  requirements.  In addition,  various Home office Guidance policies also  need to be considered  including  Guidance, Appendix FM: Financial Requirement.

Cash savings can be combined with certain income,  however once again the calculations may be complex to some. In an entry clearance or  leave to remain application where there is no  income from other sources that can be combined  with cash savings, the total  savings that must be held are £62.500.

CHALLENGES TO THE  MINIMUM INCOME  THRESHOLD

There has been litigation challenging the lawfulness of the financial requirement ongoing since 2013;

  • In July 2013 the High Court did not strike down the rules as unlawful in general, but found that the way they are applied would amount to a disproportionate interference with family life in certain types of case- (MM & Ors v Secretary of State for the Home Department [2013] EWHC 1900 (Admin).
  • In July 2014 the Court of Appeal allowed the Government’s appeal against the High Court’s decision-( The Court of Appeal in MM v Secretary of State for the Home Department [2014] EWCA Civ 985)
  • In May 2015, the Supreme Court granted permission to appeal against the Court of Appeal’s decision. The hearing is expected to take place in early 2016.

WHAT IS THE SURINDER SINGH ROUTE?

As a starting point,  family members of British citizens do not qualify for an EEA family permit. The case of Surinder Singh, however  provides that nationals of a Member State who are exercising an economic Treaty right in another Member State will, on return to their home state, be entitled to bring their non-EEA family members to join them under EC law:

Surinder Singh Case C-370/90

“9 On application by the Secretary of State for the Home Department for judicial review of that determination, the High Court of Justice (Queen’ s Bench Division) referred the following question to the Court for a preliminary ruling :

“Where a married woman who is a national of a Member State has exercised Treaty rights in another Member State by working there and enters and remains in the Member State of which she is a national for the purposes of running a business with her husband, do Article 52 of the Treaty of Rome and Council Directive 73/148 of 21 May 1973 entitle her spouse (who is not a Community national) to enter and remain in that Member State with his wife?”

12 It should also be observed that it is not alleged that Mr and Mrs Singh’ s marriage was a sham. Moreover, although the marriage was dissolved by the decree absolute of divorce delivered in 1989, that is not relevant to the question referred for a preliminary ruling, which concerns the basis of the right of residence of the person concerned during the period before the date of that decree.

23 However, this case is concerned not with a right under national law but with the rights of movement and establishment granted to a Community national by Articles 48 and 52 of the Treaty. These rights cannot be fully effective if such a person may be deterred from exercising them by obstacles raised in his or her country of origin to the entry and residence of his or her spouse. Accordingly, when a Community national who has availed himself or herself of those rights returns to his or her country of origin, his or her spouse must enjoy at least the same rights of entry and residence as would be granted to him or her under Community law if his or her spouse chose to enter and reside in another Member State. Nevertheless, Articles 48 and 52 of the Treaty do not prevent Member States from applying to foreign spouses of their own nationals rules on entry and residence more favourable than those provided for by Community law.

24 As regards the risk of fraud referred to by the United Kingdom, it is sufficient to note that, as the Court has consistently held (see in particular the judgments in Case 115/78 Knoors v Secretary of State for Economic Affairs [1979] ECR 399, paragraph 25, and Case C-61/89 Bouchoucha [1990] ECR I-3551, paragraph 14), the facilities created by the Treaty cannot have the effect of allowing the persons who benefit from them to evade the application of national legislation and of prohibiting Member States from taking the measures necessary to prevent such abuse.

25 The answer to the question referred for a preliminary ruling must therefore be that Article 52 of the Treaty and Directive 73/148, properly construed, require a Member State to grant leave to enter and reside in its territory to the spouse, of whatever nationality, of a national of that State who has gone, with that spouse, to another Member State in order to work there as an employed person as envisaged by Article 48 of the Treaty and returns to establish himself or herself as envisaged by Article 52 of the Treaty in the territory of the State of which he or she is a national. The spouse must enjoy at least the same rights as would be granted to him or her under Community law if his or her spouse entered and resided in the territory of another Member State”.

The Surinder Singh judgment was implemented into the 2006 EEA Regulations by way of Regulation 9.

The Immigration (European Economic Area) (Amendment) (No.2) Regulations 2013 were amended on 01 January 2014 to include a new threshold test to tighten the circumstances in which family members of British Citizens can rely on Surinder Singh.

The new requirement at regulation 9(2)(c) and 9(3) requires the British citizen to have transferred the centre of their life to another EEA member state, where they resided as a worker or self-employed person with their spouse or civil partner before returning to the UK. Regulation 9 provides:

Family members of British citizens 9.

(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a British citizen as if the British citizen (“P”) were an EEA national.

2) The conditions are that—

(a) P is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom;

(b) if the family member of P is P’s spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in the EEA State before the British citizen returned to the United Kingdom; and

(c) the centre of P’s life has transferred to the EEA State where P resided as a worker or self-employed person.

3) Factors relevant to whether the centre of P’s life has transferred to another EEA State include—

(a) the period of residence in the EEA State as a worker or self-employed person;

(b) the location of P’s principal residence;

(c) the degree of integration of P in the EEA State.

(4) Where these Regulations apply to the family member of P, P is to be treated as holding a valid passport issued by an EEA State for the purpose of the application of regulation 13 to that family member”.

 The Home office have  an accompanying  Notice  from  the European Operational Policy Team,  Regulation 9 (Surinder Singh Cases), 01 January 2014.  This notice is stated to  provide  guidance to case workers on how to consider applications from the non-EEA national spouse or civil partner of a British citizen who has exercised Treaty rights in another EEA member state. The Notice also  provides:

“Consideration

  1. Regulation 9(2)(c) requires a British citizen to demonstrate that they have transferred the centre of their life to another EEA member state where they were residing as a worker or self employed person.
  2. Regulation 9(3) specifies the factors to be considered when deciding whether a British citizen has transferred the centre of their life to another member state. These include, but are not limited to:
  3. the period of residence in another EEA member state as a worker or self-employed person;
  4. the location of the British citizen’s principal residence; and
  5. the degree of integration of the British citizen in the host member state.

The criteria are indicative and it is not necessary to meet all three.

Period of residence in another EEA member state

  1. In general, the longer the British citizen has resided in another EEA member state as a worker or self-employed person, the more likely it is that they have transferred the centre of their life to that member state.
  2. For example, a British citizen who has lived and worked in another member state for a period of two years is more likely meet the requirement of regulation 9(2)(c) than a British citizen who was employed in another Member state for a period of four months.

Principal residence

  1. The principal residence is the place and country where the British citizen’s life is primarily based.
  2. For example, a British citizen worked in France for three months, staying in a hotel during the week and returning to their main home in the UK at the weekends. In this case they are unlikely to meet the requirements of regulation 9(2)(c) as their principal residence would be considered to be the UK.

Degree of integration

  1. When considering the degree of integration in another EEA member state, relevant factors may include:
  2. Does the British citizen have any children born in the host member state? If so, are the children attending schools in the host member state?
  3. Does the British citizen have any other family members resident in the host member state?
  4. Has the British citizen immersed themselves into the life and culture of the host member state? For example, have they bought property there? Do they speak the language? Are they involved with the local community?
  5. For example, a British citizen is working in France, is fluent in French and has bought a house there. Their children were born in France and are educated in a French school where the British citizen sits on the school council. In this example it is likely that the British citizen has moved the centre of their life to France. Contrast with the example of a British citizen who will be working in France for three months, who resides in a hotel and returns to the UK every weekend. They don’t speak the language and educate their children in a school in the UK. In this second example they are less likely to have moved the centre of their life to the UK.
  6. It should be noted that the factors set out in regulation 9(3) are not determinative. The question as to whether the British citizen would be deterred from exercising their free movement rights were their spouse/civil partner refused, must be determined having regard to all relevant factors.

The more of these factors that are present on a case, the more likely the British citizen is to be considered as having transferred the centre of their life.

 Appeal rights

  1. Where any of the above factors are not satisfied, the application should be refused in line with regulation 9(2)(c).
  2. All such refusals would attract an in-country right of appeal subject to the restrictions in regulation 26”.

IS DELIBERATE EVASION  OF NATIONAL  PROVISIONS VIA THE SURINDER SINGH ROUTE PERMISSABLE?

Without specifically referring to the Surinder Singh  route, the 2006 Regulations were amended to provide:

 “Abuse of rights or fraud 21B.

(1) The abuse of a right to reside includes—

(a)engaging in conduct which appears to be intended to circumvent the requirement to be a qualified person;

(b)attempting to enter the United Kingdom within 12 months of being removed pursuant to regulation 19(3)(a), where the person attempting to do so is unable to provide evidence that, upon re-entry to the United Kingdom, the conditions for any right to reside, other than the initial right of residence under regulation 13, will be met;

(c)entering, attempting to enter or assisting another person to enter or attempt to enter, a marriage or civil partnership of convenience; or

(d)fraudulently obtaining or attempting to obtain, or assisting another to obtain or attempt to obtain, a right to reside.

(2) The Secretary of State may take an EEA decision on the grounds of abuse of rights where there are reasonable grounds to suspect the abuse of a right to reside and it is proportionate to do so.

(3) Where these Regulations provide that an EEA decision taken on the grounds of abuse in the preceding twelve months affects a person’s right to reside, the person who is the subject of that decision may apply to the Secretary of State to have the effect of that decision set aside on grounds that there has been a material change in the circumstances which justified that decision.

4) An application under paragraph (3) may only be made whilst the applicant is outside the United Kingdom.

(5) This regulation may not be invoked systematically.

(6) In this regulation, “a right to reside” means a right to reside under these Regulations”.

The accompanying Guidance mentioned below is to be read in conjunction with Regulation 21(b):

Abuse of rights, fraud and verification of EEA rights of residence This guidance applies and interprets the Immigration (European Economic Area) Regulations 2006 (as amended). These regulations make sure the UK complies with its duties under the Free Movement of Persons Directive 2004/38/EC, 27 January 2015:

“Abuse of rights and fraud

This section sets out the powers given by the Directive 2004/38/EC (the directive) and the Immigration (European Economic Area) Regulations 2006 (the regulations) for the Home Office to take action to tackle any abuse of rights or fraud by European Economic Area (EEA) nationals and their family members.

Free Movement Directive

Article 35 of the directive states EEA Member States can adopt the necessary measures to refuse, terminate or withdraw any right given by the Directive if there is a case of abuse of rights or fraud, such as marriages of convenience.

Fraud

For the purposes of the directive, fraud may be defined as deliberate deception or contrivance made to obtain the right of free movement and residence under the directive.

In the context of the directive, fraud is likely to be limited to forgery of documents or false representation of a material fact concerning the conditions attached to the right of residence.

Abuse of rights

For the purposes of the directive, abuse may be defined as an artificial conduct entered into solely with the purpose of obtaining the right of free movement and residence under community law which, even though formally observing the conditions laid down by community rules, does not comply with the purpose of those rules.

The EEA Regulations

Regulation 21(B) of the regulations came into effect on 1 January 2014. This allows the Secretary of State to make an ‘EEA decision’ where there are reasonable grounds to suspect the fraud or abuse and it is proportionate to do so given all the circumstances of the case”

…………

Marriages of convenience

This page tells you when it is appropriate to make a decision under regulation 21B(1)(c) of the Immigration (European Economic Area) Regulations 2006 (the regulations) when considering cases involving marriages of convenience.

Recital 28 of directive 2004/38/EC (the directive) defines marriages of convenience as marriages contracted for the sole purpose of enjoying the right of free movement and residence under the directive that someone would not otherwise have.

The key factor is the couple not having the intention to lead a genuine marital life or create a family as a married couple.

More information on assessing whether a marriage is genuine can be found in the related link: Direct family members.

The regulations already contain terms for a non- European Economic Area (EEA) national who has entered into a marriage of convenience with an EEA national to:

 have an application for documentation refused

 have any existing documentation revoked, and

 be administratively removed from the UK

Regulation 21B(1)(c) extends this power so an EEA decision can be made if there are reasonable grounds to suspect a person has either:

 entered

 attempted to enter, or

 assisted another person to enter or attempt to enter, a marriage of convenience

This applies equally to EEA nationals who, for example, would not otherwise be removable because they are in the UK in a qualified capacity or have permanent residence. In these instances any removal action would be taken under regulation 19(3)(c).

There must be reasonable grounds to suspect the fraud and abuse and the decision must be proportionate. For further information on what is reasonable and proportionate, see related links.

Entering a marriage of convenience

Non-EEA nationals who have entered into a marriage of convenience must be treated as a normal immigration offender under the Immigration Rules unless the person has already been issued a document under the regulations as the spouse of an EEA national.

If a document has been issued, the non-EEA national must be considered under the regulations. Removal action can be taken under regulation 19(3)(a) and/or 19(3)(c).

Attempting to enter to a marriage of convenience

Non-EEA nationals who try to enter into a marriage of convenience with an EEA national can be treated as normal immigration offenders under the Immigration Rules, as they have not yet validly contracted the marriage.

Assisting another person to enter a marriage of convenience

If there are reasonable grounds to suspect a person has assisted another person to enter into a marriage of convenience, then regulation 21B(c) gives you power to make an EEA decision against that person.

EEA nationals who have entered, tried to enter or helped another person to enter a marriage of convenience can also be removed from the UK under regulation 19(3)(c).

……

Reasonable grounds of suspicion

This page tells you how to assess if there are reasonable grounds to suspect a person has been engaged in fraud and abuse in line with regulation 21B of the Immigration (European Economic Area) Regulations 2006 (the regulations).

…….

 Marriages of convenience

Whether there are reasonable grounds to suspect a person has entered, attempted to enter or assisted another person to enter a marriage of convenience will depend on the individual facts of the case.

For example, the following indicators may be present where a person is attempting to enter into a marriage with an EEA national that is not genuine:

 significant cultural difference

 significant age difference

 the parties cannot speak the same language

 the parties have poor immigration histories, including a history of deception and previous fraudulent attempts to gain leave to remain (this can include asylum claims)

 there is no evidence of previous cohabitation

 there is evidence to suggest one party is already married.

 Where the marriage has already taken place, in addition to the above points, there may be additional indicators. For example:

a section 24 report has been received

the applicant is the potential beneficiary of known operational activity or has intel unit interest

 there is evidence to show the marriage took place by proxy

the non-EEA national has submitted a London issued passport

one of the parties had a child shortly before the marriage and the other party is not the parecentral reference system (CRS) checks show the applicant had a different spouse at the time a visa was issued but they were declared ‘single’ on the marriage certificate bank statements show large unexplained payments into the EEA national sponsor’s bank account near to the date of the marriage, this does not include payment of a dowry in cases of nationals of countries where dowries are common

the applicant has been previously married to someone else and has not produced evidence to demonstrate that marriage has been dissolved

the marriage is bigamous

 there are clear and substantial reasons to doubt the validity of the documentary evidence produced in support of the application, this includes ‘photo-shopped’ photographs

the applicant was married at a church or venue that has been targeted by the Home Office, details of which can be found on the European caseworker database

In cases where you have reasonable grounds to suspect the marriage is not genuine, it may be necessary to conduct an interview to verify the applicant’s claim. For further guidance on marriage interviews, see related link: Direct family members.

In cases where one person has assisted another person to enter a marriage of convenience, information related to these cases will come from intel sources and can include, for example, allegations or information from external sources such as the police”.

Having regard to Surinder Singh as set out above, it appears that   what is more relevant in these types of applications as regards the issue or appearance of seeming  to “by pass” national provisions is concerned, is whether the marriage can be viewed as a sham ie a marriage of convenience.   Where it cannot be so viewed, then arguably, regardless of the parties’ intentions or motives the entry clearance officer or home office should not seek to refuse a Surinder Singh application on this basis.

The ECJ has however already addressed the question more relevantly and directly in :

Akrich Case 109/01:

“45 In light of those considerations the Immigration Appeal Tribunal decided to stay the proceedings and to refer to the Court the following questions for a preliminary ruling: Where a national of a Member State is married to a third-country national who does not qualify under national legislation to enter or reside in that Member State, and moves to another Member State with the non-national spouse, intending to exercise Community law rights by working there for only a limited period of time in order thereafter to claim the benefit of Community law rights when returning to the Member State of nationality together with the non-national spouse:

(1)is the Member State of nationality entitled to regard the intention of the couple, when moving to the other Member State, to claim the benefit of Community law rights when returning to the Member State of nationality, notwithstanding the non-national spouse’s lack of qualification under national legislation, as a reliance on Community law in order to evade the application of national legislation; and

(2)if so, is the Member State of nationality entitled to refuse:

(a)to revoke any preliminary obstacle to the entry of the non-national spouse into that Member State (on the facts of this case an outstanding deportation order); and

(b)to accord the non-national spouse a right of entry into its territory?

The questions referred

59.In light of all the foregoing considerations, the reply to the questions raised should be that:

– In order to be able to benefit in a situation such as that at issue in the main proceedings from the rights provided for in Article 10 of Regulation No 1612/68, a national of a non-Member State married to a citizen of the Union must be lawfully resident in a Member State when he moves to another Member State to which the citizen of the Union is migrating or has migrated.

Article 10 of Regulation No 1612/68 is not applicable where the national of a Member State and the national of a non-Member State have entered into a marriage of convenience in order to circumvent the provisions relating to entry and residence of nationals of non-Member States.

– Where the marriage between a national of a Member State and a national of a non-Member State is genuine, the fact that the spouses installed themselves in another Member State in order, on their return to the Member State of which the former is a national, to obtain the benefit of rights conferred by Community law is not relevant to an assessment of their legal situation by the competent authorities of the latter State.

– Where a national of a Member State married to a national of a non-Member State with whom she is living in another Member State returns to the Member State of which she is a national in order to work there as an employed person and, at the time of her return, her spouse does not enjoy the rights provided for in Article 10 of Regulation No 1612/68 because he has not resided lawfully on the territory of a Member State, the competent authorities of the first-mentioned Member State, in assessing the application by the spouse to enter and remain in that Member State, must none the less have regard to the right to respect for family life under Article 8 of the Convention, provided that the marriage is genuine.

Although the Home Office seem to harbour deep suspicions of  there being  a prevalence  of  “sham marriage”   where EU rights of residence are concerned to the extent that  in practise even  a married couple  with a child  together can be  called to attend a marriage interview,  where the  Surinder Singh route  is  concerned, absent such a “sham marriage” or other fraud   and where the  requirements of Regulation 9 are met, the claim should succeed.

The added advantage is that the ECJ has clarified in Eind (C-291/05) that the British sponsor in a Surinder Singh case does not need to show they continue to be a worker or self-employed person upon their return to the UK.

In the cases of O and S, the ECJ was asked to further consider the circumstances under which a family member can rely on rights under the free movement directive on the basis of the ECJ judgment in Surinder Singh.

O (C-456/12) and S (C-457/12)

In summary the judgments in O and S stated that:

-Surinder Singh rights can arise if an EEA national has genuinely resided in another member state and has, during that residence, created or strengthened family life with their family member

-Surinder Singh rights cannot arise if the EEA national has only travelled to another member state for a short period, such as a weekend or holiday, even if multiple short periods were to be considered together

-in the case of EEA nationals who live in their own member state but work in another, or who regularly travel to another member state in the course of their work, the court confirmed that member states can refuse applications from family members of such workers, except where a refusal would discourage the EEA national from effectively exercising his right to work in another member state

– the court confirmed that the scope of EU law does not cover cases of abuse

CONSIDERATIONS AND CONCLUSION

Only British  nationals  can seek to  avail themselves of this   route to bring their  partners/spouses to the  UK.  Excluded unfortunately  therefore are  Sponsors settled in the UK  by way of indefinite  leave to remain, or with limited leave to remain as refugees or with humanitarian protected status.

Although Regulation 9 of the 2006 EEA Regulations only require that the British national shall have been residing in an EEA State as a worker or self-employed person, it   is evident having regard to Article 7     of the Parent Directive that all  Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they are workers or self-employed persons in the host Member State or have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State.

Partners/Spouses of EEA nationals can therefore apply   for EEA family permits, however the  case of McCarthy Case C‑202/13, held that, pursuant to Article 5 of Directive 2004/38, a person who is a family member of a Union citizen and who holds a valid residence card issued under Article 10 of Directive 2004/38 by the authorities of another Member is not subject to the requirement to obtain a visa or an equivalent requirement in order to be able to enter the territory of that Union citizen’s Member State of origin.

Having resort to  the Surinder Singh route  means that in addition  to  avoiding the disadvantages mentioned above, the other additional practical  benefits are:

  • Absence of the exorbitant entry clearance or leave to remain application fees required in an application under Appendix FM;
  • No need to make provision for the substantial Immigration NHS health Surcharge;
  • The relevant statutory provisions are much less complex

Therefore whilst the challenge to the minimum  income  threshold proceeds, currently British national sponsors  who  cannot meet the  financial minimum income threshold and are  wishing  to  sponsor their  foreign partners to come to the UK, are  at  full  liberty to take advantage  of   the Surinder Singh  route.

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