"I have never welcomed the weakening of family ties by politics or pressure" - Nelson Mandela.
"He who travels for love finds a thousand miles no longer than one" - Japanese proverb.
"Everyone has the right to respect for his private and family life, his home and his correspondence." - Article 8 of the European Convention on Human Rights.
"When people's love is divided by law, it is the law that needs to change". -
David Cameron.

Sunday, 27 November 2016

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.

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