No. 49 - February 2016
KINGDOM – the new
immigration rules proposed after the EU Referendum
After the recent negotiations in Brussels, we now have
further information on proposed changes to immigration law
if the UK votes to remain in the EU following the referendum
The UK government has agreed a deal to give the UK “special
status” in the EU – assuming the referendum is passed.
There are 2 main areas of immigration that will be affected
by new regulations after June.
1) Family Members of EU / EEA citizens.
2) British citizens using EU law for family members (the
Surinder Singh route)
Let’s look at each of these areas.
* Family Members of EU / EEA citizens.
For the first group (Family Members of EU / EEA citizens),
the UK government is trying to take back control of the
rights of those family members to live in the UK under EU
law. In summary, unless those family members already have a
right of residence in an EU member state then it seems they
will be subject to UK immigration law.
The document states they will exclude;
“from the scope of free movement rights, third country
nationals who had no prior lawful residence in a Member
State before marrying a Union citizen or who marry a Union
citizen only after the Union citizen has established
residence in the host Member State”
In such cases;
“the host Member State's immigration law will apply”
Currently, such family members can use their EU free
movement rights to move to the UK with their EU citizen
spouse. This can be done regardless of where they live – in
the EU or outside the EU. They can apply for EEA family
permits from outside the UK and EEA residence cards in the
In future, it seems the UK government will be allowed to
insist that such applicants are treated under UK immigration
law – which is much tougher. UK immigration law requires a
minimum income test, proof of English language ability,
greater proof of relationships, high immigration application
fees and overall a much tougher regime.
In short - the applicant loses all the advantages of
applying through the EEA Family Member route.
This would seem to be a radical change and will especially
affect the many EU citizens and their spouses living outside
So, for instance – after June, a Brazilian citizen married
to a French citizen living in Brazil, would have to apply
under the UK immigration rules to move to the UK. This would
mean that they would need to meet the UK immigration
financial requirement. Perhaps by showing they have
substantial savings or the French citizen might need to move
to the UK first to work for 6 months. The Brazilian citizen
would need to pass an English test and pay the high UK
immigration application fees.
Currently – none of these requirements are in place when
applying as an EEA family member.
Obviously we are yet to see exactly what specific
requirements will be introduced and a timetable for this.
But the new rules will only be in place at some point after
June so many applicants should consider whether they should
apply now to move to the UK through the EEA route – such as
applying now for EEA family permits or EEA residence cards.
Applicants who are classed as an EEA family member before
June should be able to continue to stay in the UK through
their EU Free Movement rights.
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* British citizens using EU law for family members (the
Surinder Singh route)
The second group of applicants that are specifically
mentioned in the UK / EU deal are those British citizens who
use EU law to live in another EU member state and then
return to the UK with their spouse. This is usually referred
to the Surinder Singh route after the case that first
established this principle of EU free movement.
The document states;
“Member States can address specific cases of abuse of free
movement rights by Union citizens returning to their Member
State of nationality with a non-EU family member where
residence in the host Member State has not been sufficiently
genuine to create or strengthen family life and had the
purpose of evading the application of national immigration
So while there is nothing to suggest this route will be
abolished, this seems to signal much greater scrutiny of
such applications after June. The UK government already has
a rigorous “centre of life test” in their EEA regulations
for such applications – requiring the British citizen to
show that they have moved the centre of their life to the
other EU member state.
The document seems to be giving much greater powers to the
UK to require longer periods of residence, more evidence of
employment / self-employment and in effect trying to put the
UK’s “centre of life test” beyond any legal challenge.
It is important to understand that the UK / EU deal is
contingent on the result of the UK referendum on 23 June
2016 being a vote to remain in the UK.
The proposed changes above will then be implemented by the
UK and the EU – with changes in the necessary Directives and
Regulations as required.
The changes could take a little time to be phased in – the
exact timetable and scope of the changes is still not clear.
EEA family members should seriously consider if they can
move to the UK now under the current existing rules before
the new rules are introduced.
If the referendum is not passed then we really are in
unchartered territory. This would result in the UK
withdrawing from the EU and working out an agreement for the
rights of EU citizens and their family members currently
living in the UK. This would also have to include the rights
of British citizens and their family members currently
living in other EU member states.
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