NEWSLETTER No. 45 - July 2014

ILR Indefinite Leave to RemainUNITED KINGDOM – IMMIGRATION UPDATE:
MM CASE


A recent case heard at the UK Court of Appeal has examined in detail the UK financial requirements for spouse / family of British citizens and other settled persons.

Judgement in the case of MM and Others, was handed down on Friday July 11th and it proved to be a major setback for the thousands of families so severely impacted and torn apart since the financial requirements were introduced in July 2012.

The Court of Appeal completely rejected the High Court decision and found in favour of the UK Home Secretary.

The Court found no reason to intervene in what it saw as a decision solely for the government.

So, pending an appeal to the Supreme Court, it now appears that the financial requirements are here to stay for the foreseeable future.

This requires the British sponsor to be earning at least GBP 18,600 per annum to sponsor a spouse / partner (even more if children are to be sponsored).

British citizens outside the UK must have earned GBP 18,600 for the last 12 months and have a confirmed offer of employment in the UK paying GBP 18,600.

The UK Immigration Minister has stated that up to 4,000 applications which have been on hold now stand to be refused.

Many more applicants will now be looking at the so called Surinder Singh route to bring their family members to the UK (see below).

EEA immigration to the UK through the Surinder Singh Judgement

Introduction

Recent UK immigration changes have now made it extremely difficult for the spouses, partners, children and other family members of British citizens to move to the UK.

However, one often overlooked route to legally move to the UK is through what is widely referred to as the “Judgement in the Surinder Singh case”.

This route is entirely legal and backed up by EEA regulations and judgements. It cannot be changed at will by the UK government. Little wonder, that the UK Border Agency do not provide much information on this route to the UK as it allows family members in effect to bypass UK immigration.

The Legal Background

Surinder Singh was an Indian citizen who moved with his wife (a British citizen) to live and work in Germany. Upon his return to the UK he then argued that he had entered under EU law – i.e. on the basis that he and his wife were already exercising EU Treaty Rights in Germany. In a landmark court ruling in 1992, the European Court of Justice (ECJ) agreed with him and thereby opened up a whole new world of immigration possibilities.

The basic principle from the case is that if a British citizen is living in another EU member state then he / she is entitled to return to the UK under EU Free Movement Rights and his / her family members are also entitled to enter under the same Free Movement Rights.

In effect, by living in another EU member state the British citizen becomes “European” and has the same rights as say, a German citizen moving to the UK with a non EU family member.

In a further case, the ECJ reaffirmed the Surinder Singh judgement and also clearly stated that it made no difference if the British citizen moved to another EU member state solely to facilitate a Surinder Singh type return. As long as one follows the correct process, one’s motive is irrelevant and cannot be questioned by the UK government.

The most recent set of EEA Regulations (published by the UK government) give legal standing to the Surinder Singh judgement.

The regulations state expressly that if the qualifying conditions are met;

“these Regulations apply to a person who is the family member of a United Kingdom national as if the United Kingdom national were an EEA national.”

In other words, the British citizen is treated as an EEA national.

The Advantages

This route of entry allows the family member to bypass all the requirements imposed on family members of British citizens living in the UK.

To keep re-iterating the point – the family member is now treated as the family member of an EEA national.

So, the restrictions of UK immigration law simply do not apply. This means;

* No requirement to meet the new financial maintenance criteria introduced in July 2012

* No need to meet the English language requirement.

* There is very little room for the UK Border Agency to question the legitimacy of relationships.

* A wider definition of family members under EEA law than UK immigration (it can include partners, children up to the age of 21 and other dependents such as parents)

* No hefty immigration fees to be paid to the UK Border Agency

* Faster processing times as required under EU law.

* A much more secure legal framework to move to the UK rather than being subject to whimsical changes imposed by UK politicians.

* EEA nationals and their family members are not subject to the “no recourse to public funds” rule under UK immigration.

* No requirement to have a UK employment offer.


The Key Requirements

Step 1

The British citizen must move to another EU member state. This includes the 28 member states of the EU itself (not including the UK of course!) and the additional EEA members (Norway, Lichtenstein and Iceland) and also Switzerland.

The full list is;

Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Irish Republic, Italy, Latvia, Lichtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland.

In order to qualify under Surinder Singh, the British citizen must then “exercise Treaty Rights” in that member state. This means being a worker or self-employed. It does not include studying or retirement or being self-sufficient.

There is no requirement to earn a certain amount or even to work full-time. The requirement is to be a genuine worker so part-time, temporary work would suffice.

The ECJ in the Surinder Singh case stated a minimum period of 6 months is required to be exercising Treaty Rights in another EU member state. The regulations themselves do not specify a minimum period but 3 - 6 months is still seen as the general “rule of thumb”.

Most applications we have processed have been where the British citizen has exercised Treaty Rights for 6 months. There have been cases where 3 or 4 months have worked but we still recommend 6 months.

The British citizen should retain sufficient records of working and of their residence in the EU member state.

The spouse or partner of the British citizen should then move to that same EU member state and live with the British citizen.

However, the spouse or partner does not have to obtain a full residence visa to live in that EU member state (although often it is good to do so). However, it is perfectly possible to enter as a visitor, live with their British citizen spouse / partner and then apply for entry to the UK.

Step 2

The family member now needs to apply for a UK visa – or termed an “EEA Family Permit”. This is the most important part of the whole process – i.e. to ensure the applicant is categorised as the family member of an EEA national as defined in the Surinder Singh case.

It is vital to produce all the right evidence and to specifically address the Surinder Singh case in your application.

Normally, family members of British citizen cannot apply under EEA law. So, make sure the application is very specific in highlighting the Surinder Singh case and this is the category that one is applying under.

The application is usually made to the British Embassy in the EU member state that one lives in. Processing times vary but 3 weeks is the normal maximum time it takes. Some applications can be approved in a few days, if prepared properly.

If approved, the EEA Family Permit will be issued for 6 months and state that the applicant “MRS NAME” is the EEA Family Member of “MR NAME”.

Congratulations – you have now successfully used the Surinder Singh case and you are categorised as the family member of an EEA national. This now defines your immigration status on entering the UK and how you stay in the UK.

Step 3

After moving to the UK, an application is then made for an EEA residence card for the family member. Much of the key material submitted in the EEA Family Permit application is still required, together with more evidence after moving to the UK.

An EEA residence card is then issued for 5 years.

________________

We have extensive experience in EEA applications, please visit our dedicated EEA webpage and obtain free EEA guide;

* EEA info page with free Guide on EEA applications


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Tel. +44 (0) 1223 830 916
Email: info@commonwealthimmigration.com 
ILR Indefinite Leave to RemainUPDATE – NEW REGULATIONS
 – JANUARY 2014

Effective January 2014, the UK government has published new EEA regulations on the “Surinder Singh route”.

The legal basis of the new regulations seem to be dubious – in introducing a new test that requires the British citizen to have “transferred the centre of his or her life” to the other EU member state.

While we await to see if this will affect future applications, this is certainly not a requirement of the Surinder Singh judgement as detailed by the ECJ.

Applicants are of course best advised to provide as much evidence as possible that they are genuinely living and working in the other EU member state. This would help to avoid any doubt but that they are genuinely and effectively exercising their EU Treaty Rights. This is the real test as outlined by the ECJ in the Surinder Singh case.


EEA2 Family Permit UK visasUPDATE – NEW CASE: O v The Netherlands
– MARCH 2014

The judgement in this European Court of Justice case reaffirmed the Surinder Singh rights and expanded the case to ALL those exercising EU Treaty Rights, not just workers.

So, a British citizen can exercise EU Treaty Rights in another EU member state as a worker, self-employed, student or self-sufficient person and still use the Surinder Singh route to bring family members in to the UK.

If you wish to make any type of UK / EEA application, then please complete this form on our website;

*
Online Assessment form


We hope that this newsletter has been informative for you.  However, remember everyone's circumstances are different so if you or a friend or family member want to check your eligibility to emigrate then either

1) complete the Online Assessment form on our website or
2) give us a call on +44 (0) 1223 830 916

We would love to hear from you!

Regards
Tim McMahon
Commonwealth Immigration
www.commonwealthimmigration.com

 


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