Surinder Singh changes - SI 2016/1052

---EDITED 10TH DECEMBER - SEE BELOW ---
 
The first of a two-part Surinder Singh special covering my interpretation of the release on 25th November of a new Statutory Instrument, SI 2016/1052.  Do also read the review of the guidance, which provides more detail.

For the other guidances, including for the issue of family permits, and for family members of EEA nationals, check out the collection.

Usual disclaimer - this is my view alone; I'm not a lawyer and nothing in here is immigration nor legal advice.  If Surinder Singh is of interest to you, you should go through the guidance and SI yourself, seeking professional help where needed.

If there is anything in my interpretation which you disagree with, please do let me know.  We're all here to help each other.

Who does this SI apply to?

Everyone whose right to reside, or whose family member's right to reside, in the UK falls under the EEA regulations. 

For the purposes of this post, I will concentrate on the elements affecting British citizens utilising the 'Surinder Singh' route.

What are the key changes?

1.  Previously, it was only where the family member was a spouse or partner of the British citizen, that they had to have been living together in the other member state before moving to the UK.  Now this requirement appears to have been extended to all family members who meet the 'family member' criteria, including elderly parents. See 9 (2).

2. Some apparent change to the Centre of Life requirement, including i) the length of the joint residence (of sponsor and applicant) ii) applicant's integration in the host EEA member state also looked at and iii) whether applicant's first lawful residence in the EU with the British citizen was in that member state (this last point is especially interesting - it sort of touches on the 'deal' David Cameron managed to negotiate with the EU if we didn't Brexit.)  See 9 (3).

3. Where the purpose of residence i.e. motive for move to the other EEA member state is determined to be to circumvent the UK immigration rules, applications will be refused.   More on this in tomorrow's post.  See 9 (4).

4. I'm a little unsure as to what the change are for British citizens who are to be treated as EEA nationals, but as qualified people with the status of workers or jobseekers.  It seems to me that jobseekers do need to meet 'Condition B' i.e. provide evidence of jobseeking and have a genuine change of engagement, but Brits status should relate to their activity in the other EEA member state....so I don't really know whether this is a change or how relevant, but a generally all Brits do return and get a job, something I'm not going to dwell on too much at this time.

EDIT: Thank you to Jonathan Kingham for highlighting that what I had ^ decided not to dwell on is actually a significant change.  It appears HO now requires that for the British citizen to be a qualified person, they must satisfy the same conditions as EEA nationals for the most part at least. i.e. have been engaged in acceptable activity not just in the host member (which is the earlier requirement), but now that requirement is extended to their stay in the UK.  As one member pointed out, this is essentially the income threshold through the bak door!  There are minor differences in the treatment of EEA and UK nationals such as in the situations where comprehensive sickness insurance would otherwise have been required for other EEA nationals and their family, the insurance requirement does not apply to the British citizen - only their family.  

Jonathan's interpretation is supported by this letter dated 6th December, sent to an applicant who i) holds a Family Permit ii) applied for a UKRC for which payment was taken back in June 2016.  Thank you to the family for sharing the letter with us.  

Bye bye Eind - now almost losing track of UK's regulatory breaches! 

 5. Right of permanent residence, covered in regulation 15.  Now I don't know if this is a change...certainly the wording suggests it's a change, but surely, HO cannot even be trying to sweep the rug from under people's feet - not after having lost the HSMP case.   I'll explain.

Family members of Brits here under EEA regs get the right to permanent residence after living in the UK for five years (and meeting the criteria of remaining an eligible family member).  This should be pretty automatic for holders of the RC.  However, now 15 (2) says, in relation to someone who acquires the right of permanent residence:'a family member of an EEA national who is not an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years',   (Underline added for emphasis.)

'these Regulations' suggests all the changes - including those in 1 to 4 above apply...but does that mean that at the PRC stage families will now have to satisfy these changes retrospectively?  Will families have to show purpose of residence was not to circumvent? Will they have to show they did live together in the host member state? That their COL was transferred?  My gut says that cannot be.  But the words suggest otherwise.

What about any transitional provisions?

Transitional provisions are covered in Schedules 5 and 6.    

Schedule 5 seems to just replace the old Surinder Singh section in the 2006 regulations with the amended one as above.  

There then is mention of outstanding applications (including those for FP, RC and PRC) made but not determined by 25th November 2016 are to be covered by the 2006 regulations. So if someone got their FP, RC or PRC application in before 25th November 2016, then their application is covered as per the 2006 regulations - but of course, where the sponsor is a British citizen, then that part of 2006 regs has been replaced by this 2016 version where motive etc is taken into account.

Yes, my mouth is agape.  HO is on an agenda to royally screw British citizens who deigned to use the SS route.

I can't see anything of relevance to us in Schedule 6....maybe something in the period of residence, but nothing which screams out as crucial.

So what does this mean for those who already hold a RC and will be applying for a PRC in the next couple of years?

Common sense suggests to me that HO cannot at PRC stage apply regulations brought in after the RC was issued, but the way the SI is worded, I don't know whether HO is trying to be sneaky/evil about things, or whether this is a genuine oversight.  We will hopefully see some clarity in the near future, but otherwise it may be a case of wait and see with an actual application, and worst case scenario, see this run through the courts.

It may be that given Brexit, HO doesn't really give a flying fox about abiding by the treaty and ECJ case law.  If there turns out to be no Brexit though - or at least retention of free movement (you'd think four years of the HO would have made me uber cynical, but no!), there's more likely to be pressure from the European Commission on the UK government to apply the law correctly.

Surinder Singh changes - Guidance

The second of the two-part Surinder Singh special covering my interpretation of last Friday's release of the guidance 'Free movement rights: family members of British citizens v 1.0'.   Please read this in conjunction with the review of the SI post.

Usual disclaimer - this is simply my view.  I'm not a lawyer and nothing in here is immigration nor legal advice.  If Surinder Singh is of interest to you, you should go through the guidance and SI yourself, seeking professional help where needed.


Again, if there is anything in my interpretation which you disagree with, please do let me know.  We're all here to help each other.


Who does the guidance apply to?

The guidance indicates it's applicable to those applying for residence cards, where caseworkers have not yet made a decision on the residence card application as at 25 November 2016 (including those already issued with a family permit).  So our classic Surinder Singhers.  

It's likely HO put the assessment of pending applications on hold, knowing these changes were in the pipeline, so don't beat yourself up too much for not having applied in the last few weeks/months.  We are coming across cases where the payment for the RC was made in June 2016, yet they are now getting letters requesting more info in line with the changes.

This guidance is not used by caseworkers for permanent residence card applications.  There doesn't appear to be any such guidance yet, but when available, we will cover that too.

 Stages of application

Stage 1: verify eligibility of applicant and sponsor to apply under Surinder Singh.  The qualified person definition has changed so now the British citizen has to satisfy the same requirements, for the most part, as an EEA national e.g. be engaging in work, job seeking student or self-sufficient.  Odd that on the same page as this is mentioned, the HO claims to be complying with the Eind case.

Stage 2: establish whether sponsor did exercise free movement rights in the EEA host country

Stage 3: determine whether residence in the EEA host country was genuine; this includes the centre of life stuff, so still in there, still in breach of case law.

Stage 4: determine the purpose of the residence in the EEA host country; this is the key new bit and what we will concentrate on in this post.

Stage 5: obtain additional information if needed

Stage 6: decide the application

Caseworkers are instructed to look at the motive for the move - applicants appear to now be required to prove that the purpose of the move to the other EEA country, and then return to the UK, has not been to circumvent UK immigration law.   This proving a negative is just ugh and it has been said (thank you Steven), possibly akin to the controversial primary purpose rule (now scrapped).

Using motive as a reason for refusal (as well as COL) is in direct breach of the EU directive, case law and in stark contrast to what the UKBA website used to say, in that it did not matter if the only reason the move was to circumvent UK immigration rules! (I am trying to retrieve the screenshot showing that, but if any of you find it on cached websites or archives, please send it my way - it may help others at the PRC stage if necessary).

How will caseworkers determine motive?

Unlike my initial view, that caseworkers would need to prove motive was to circumvent, it seems applicants will need to prove motive wasn't to circumvent....it's freaking hard to prove a negative and with things I'll come onto below, my view is this is just being chalked up as another reason to refuse people and put them through the rigmarole of courts - where it's likely HO would lose for the breach reasons given above, but not without putting families through the a very long spin cycle of torment.

If you do not use an application form, or use an old one, and caseworkers determine there is not enough evidence to determine the purpose of residence and it's genuineness, they are instructed to write to you and give you about ten days to respond.  If you use the most recent application form, then a decision is made on evidence submitted the first time i.e. they do not need to get in touch with you requesting further documentation.

There is now scope for caseworkers to request a credibility interview where they are not satisfied the evidence is satisfactory.

The good news is that HO once again confirms that there is no compulsion to use any application form in particular or at all.

What if there are kids involved?

Seems to me s55 is to be disregarded anyway, because the government states that if the conditions set out in the guidance are not met the duty under s55 doesn't change the analysis.  Best interest of children.....or maybe not, eh?  No surprise to those familiar with Appendix FM and even the ADR rules.

Tell me more about the key change

This has Theresa May all over it.  She shut the door on families, we found windows and the windows are to be bolted as well, leaving us trapped inside the house and our families outside.

The things caseworkers are told to consider in determining the motive/purpose of the move include:

- the family member’s history of UK immigration applications and lawful residence; refusals are now likely to work against you, as they're more likely to suggest purpose of the move was because you couldn't get a UK visa. Yes, this is in breach of EEA regs.

- if the family has never made such an application, the reason they did not apply to join the British citizen in the UK before the British citizen moved to the EEA host country; this strikes me as a bit stupid cos the answer could simply be that why would the family go through an expensive and intrusive UK visa application if their sponsor was going to move to another country anyway!  

What the HO is however trying to do I reckon is use a non-application as motive for circumvention.  Thus the only people who are left alone are those who have succeeded in obtaining a UK visa, but have subsequently chosen to move to another EEA member state and now return.

 - the timing and reason for the sponsor and applicant's move to the EEA host country and ditto the return to the UK

Not quite satisfying the above, or even having been deported, doesn't make a refusal certain, says the guidance (as if!) - the genuineness of the stay, transfer of COL (stage 3) also weigh in, suggesting that maybe, maybe, if there's some uncertainty over motive, then having genuinely lived in the other member state could tip the scales your way.  

However, the example given for likely refusal does use the inability to meet the £18600 minimum income threshold even where the couple lived in Ireland for six months.  They do confuse it by suggesting the family member was living in the UK unlawfully, likely I think to curry favour from those reading the guidance without any real understanding of the impact of the changes on those who haven't breached their visa conditions.

Irish slapped on the wrist for delays in applications under EEA regs

IRISH DELAYS

Since UK's anti-family agenda, more Brits have been exercising their treaty rights to live in another EEA member state, where, free of UK hindrance, they can enjoy the joys of living with loved ones.  Ireland has been a popular destination, not least due to proximity, culture and importantly, language, aiding job prospects.

With this popularity has come excessive delays in processing family permits and residence cards, as a number of you will know from personal experience, and with the delays has come censure from the courts.

A family has won the right to have their application decided in 6 weeks, and this is going to have implications for all applying for  c-visas / family permits.  Indeed, some may have already seen an improvement in the time taken to process applications.

In recent news.....

Several news stories of interest in recent times:

25th November 2016 saw Ministry of Justice announce the 500% rise in immigration fees brought into force from October are to be scrapped; those who paid the fees already will be reimbursed. This doesn't mean no further increases are on the cards but a small victory for the moment at least.   
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Our favourite politician (TM) has had her desire to lord it over Brexit shot down by the court.  As the last 6 years have shown though, she is not averse to wasting taxpayers money appealing court decisions just cos they go against her.

Thus the Supreme Court is to hear the case on whether TM alone can lead UK out of the EU without parliamentary approval, between 5-8th December.  The Scottish and Welsh governments will be joining the claimants in opposing the Brexit minister.

You can go to the court in person or watch the hearing live online. Baffling that it's Brexiteers proclaiming sovereignty as a reason for exit who are so pro-TM as dictator, and anti parliament sovereignty.
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Another story of a family torn apart by the Home Office; yes, the applicant apparently overstayed an earlier UK visa, but to refuse her spouse visa on the premise of insufficient evidence of a genuine relationship is insane, when the couple were have been married for over six years, and have two kids - marriage and birth certificates provided.

For the amount applications cost, you'd think caseworkers would be required to at least look through the paperwork properly rather than put families through the costly appeals taking years, lost forever.
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So, Trump is now President-elect.  The maps showing the areas of USA supporting Trump and areas where the population does not have a passport are not exactly dissimilar.  Perhaps this whole Brexit-Trump-world-is-going-crazy thing is a result of ignorance and fear of the unknown, rather than simply silly/evil people? Meh, draw your own conclusions.

General update on MM and ADR

It's been a quiet few weeks for the crux of what BritCits is about - fair family immigration rules for British citizens and our family.  There is still no update on #MMcase, and ADR we await the hearing at the Court of Appeal in May 2017.

The silence from the Supreme Court on MM seems even more deafening now, when cases heard after the one of interest to us have already had judgments handed down; indeed, one heard in June is having its judgment next week.  And we were there in February! 

However, with no choice, we continue to be patient and hope - the fingers-toes-everything-crossed variety of hope - that the judgment will bring relief to the thousands of families who have paid a huge price for the UK government's anti-migrant agenda.

ADR as a reminder is to be heard on two days between 3rd-5th May 2017 at the Court of Appeal (the court more superior than High Court, but not quite as high up as Supreme Court). Whether the hearing is to start on the 3rd or the 4th will be determined closer to the time.

Some of you have ADR appeals being heard at tribunal.  The case note to share with your legal rep is here.  This may help with the article 8 aspects of your case.  If your hearing is at the Upper Tribunal please get in touch with us as there may be a way to link up the cases to strengthen our argument.

We are also still fundraising for the case (the appeal permission comes up our having move money to pay the HO) - fundraising and donations welcome here.

Rohit - Featured Family

“My parents are dependent on me.  While I can tend to their financial needs from afar, families are about more than just sending money.”

Rohit is a British citizen who came to the UK from India in 2007 on a company sponsored visa to support IT projects and finance processes for a UK based company. Since then he has contributed to UK’s economy by paying hundreds of thousands in income taxes, helping grow several businesses with his contribution as an individual.  With professional success has also come a personal dream to have a similarly rewarding family life.

Currently working as an IT Project Manager/Business Analyst for UK’s leading pharmaceutical company, Rohit supports critical IT projects for the greater good of patients.

His wife is a Slovakian national, who also works full time.  The couple own their 4 bedroom house in London, and don’t see any challenges in financially supporting their family currently in India, once they move to the UK.  The family there consists of Rohit’s parents, aged 63 and 72 years, and his sister, also dependent on Rohit.

The family made use of EEA regulations (on the basis of Rohit’s wife being an EU citizen) and applied for a UK family permit for the mum, dad and sister. 

However, despite application of EEA regulations being reasonably straightforward, especially when the sponsor is a non-British EEA citizen, the application was refused.

Rohit hugging his wife, his parents are seated, and his sister in the striped top, on a visit to India

Rohit is certain the caseworker did not even read the applications or supporting documentation based on the reasons for refusal; the impression is the caeworker was going to refuse no matter what. 

The reasons for refusal are bizarre; evidence of money transfers was provided going as far back as 8 years (coinciding with the period Rohit has been in the UK) yet the letter indicates wanting to see evidence of dependency for 19 years!  Rohit’s parents and sister’s only source of income is that which they receive from Rohit, but because the funds for 8 years have been transferred to a joint account, the Home Office claims that perhaps Rohit was transferring the funds on a monthly basis to India for his own use there, without explaining how Rohit could have been withdrawing funds from a bank or ATM in India, whilst being physically present in the UK!

The application made referred to Rohit’s parents health deteriorating; his father had a heart attack in 2013 with ongoing difficulties with arthritis and his eyesight, whilst his mum suffers from continuous cervical pain, high blood pressure and asthma. 

Receipts for the medical treatment were also provided to further show the dependency on Rohit of his parents.  However, this was also considered a reason for refusal by way of Home Office saying that clearly because the medical treatment had been sought and received, it indicated this treatment was available in India and thus the parents did not need to be in the UK!  The mind boggles as under EEA regulations, where financial dependency exists, especially at the level in this case, poor health is not a requirement!

 Bittersweet goodbye as Rohit is on his way back to the UK

Rohit wants his parents and sister with him so as to be able to look after them personally; to provide much needed emotional support which may well alleviate some of the physical symptoms.  He also hopes that with a baby due in October 2015, his family has a chance to be a complete unit, with the grandparents playing a part in the baby’s upbringing.

If his family were not able to be in the UK, the only option for Rohit would be to leave the UK for a country which does respect family life.  Accepting the change in home, jobs, salary is unlikely to be easy.  UK would also lose two taxpaying talented individuals, along with their contribution to society.

Despite the refusal, Rohit is aware he can more easily avail of EEA regulations, but is astounded by the reverse discrimination for British citizens compared with the more family-friendly EEA regulations – and that too something the Home Office is not applying lawfully (he is in the process of appealing).

All Rohit wants, is for the UK government to allow his family to live together so he can fulfil the responsiblities he is not currently able to. All the UK government should be doing is abiding by the regulations and laws it has signed up to - something it actively chooses to thumb its nose at.

Update: Rohit is now the proud father of a beautiful baby girl.  He cannot wait for his daughter to grow up knowing her aunt and grandparents.