"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.

Tuesday 29 November 2016

Surinder Singh changes - SI 2016/1052

The first of a two-part Surinder Singh special covering my interpretation of the release on 25th November of a new Statutory Instrument, SI 2016/1052Do 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.

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