The use of EEA family permits under the ‘Surinder Singh’ provision
In 1992 a precedent was set, since known as the Surinder Singh provision, making it technically possible for a British citizen to bring in a non-EEA partner or spouse to the UK on an EEA permit. Until the new financial thresholds for sponsorship under the settlement category came into effect last year setting minimum earnings for a sponsor, the Surinder Singh provision was considered by most people to be too cumbersome a method to use and potentially very costly, if it resulted, as it often does, in the sponsor having to give up their permanent employment in the UK in order to gain economic migrant status in the EEA. Anyone working in another EEA state, even if only for a short while for example a few months, can bring in a foreign partner, husband or wife under EU law rather than UK law as far as the visa/entry clearance is concerned. This means that their employment status in the UK and their income is irrelevant to the application.
The £18,600 minimum annual salary ruling came into force in July 2012 and has caused a lot of distress to many who were wishing to bring into the UK a partner or spouse on a UK settlement visa, and who do not have the requisite salary. The amount required goes up with every dependent child and so many who would not otherwise consider it are taking the Surinder Singh route to reunite their families.
Because EEA citizens have stronger migration rights than UK citizens, they can bring in family members to the UK under EU regulations. Anyone from a member of the EEA can bring in non-EEA family members to the UK and hundreds of thousands of immigrations follow this route every year. Until the minimum earnings threshold was brought in, this was economically not very viable for most UK citizens unless they already worked abroad as a matter of course, but with other obstacles now in the way, more people are using the Surinder Singh provision and if the Home Office appeal against the recent High Court judgement on the financial rules is upheld, this number is likely to continue to rise.
As the only English-speaking country in the EEA, Ireland gets a lot of economic migrants from the UK seeking to establish their standing. Although the language can be a problem, Spain and Portugal are also popular destinations, most likely because of their large number of bar and restaurant openings and their need for English speakers in the tourist trade. The Netherlands is also a popular choice, because of the country’s well deserved reputation for having a large number of very competent English speakers.
Although no overt moves have been made to do so, commentators believe nevertheless that the Surinder Singh route will be closed as soon as the UKBA lawyers can make a good case. It is true that it appears to contradict other UK legislation that non-British citizens using this provision can bring family members into the UK from outside the EU easier than UK citizens who are permanently resident. EU law does overrule UK law in many sectors, but feeling is very strong that this should not be the case in any area to do with borders and immigration.
The UK Border Agency (UKBA) guidelines do state that any application will be refused if it cannot be proved the British citizen was genuinely engaged in employment or self-employment in the country of application. Despite this assertion, there is no hard and fast rule that precludes a UK citizen from using the Surinder Singh provision rather than going through the costly process of applying for a visa for a partner or spouse which is bound to be refused on financial grounds. UK marriage visa rules are at the best of times a complicated area and the EEA economic migrant status ‘loophole’ just makes it much more complex. Currently, however, there are no strictures other than practical ones to prevent the Surinder Singh provision from being used.
