So who is Surinder Singh anyway? Returning to the UK with your non-British family member

If you've been following British in Europe's advocacy campaigns over the last two and a half years, you'll almost certainly have come across the term 'Surinder Singh rights' - perhaps you've wondered what they are. As the UK government published some amendments to its immigration rules on Monday afternoon (here's the link for the truly masochistic amongst you), which included amendments to these rights after Brexit, it seems like a good time to have a look at what this is all about, as many British people living in France and in other EU countries will be affected by it.

Who should read this article?

The information in this article relates to you if you are a British citizen and you live in France or another EU state with a spouse, partner or close family member who is not British (either EU or non-EU). You will be affected by these changes if at any point in the future you want or need to move back to the UK with your family member(s).



Free movement rights, and returning to your home country 

Surinder Singh rules derive from an old Court of Justice of the European Union case, which established that the right in EU law for a person to move from one EU member state to another (ie to exercise your free movement rights) must include a right to return, otherwise you would be deterred from moving in the first place. This means that if you're exercising your right to return to your home member state, you're doing so under EU law. And what this means is that it's EU law that also applies to your family members returning with you - not the domestic rules of your own member state.

Julia and Bob

Let's explain this a bit more by telling a story. Julia has lived in France for 8 years with Bob, her Australian spouse who runs a small wine business which earns just enough to provide for the family. Bob has a residence card as a family member of an EU citizen. They have a 5 year old son, Sascha, who was born in France. They thought they'd probably be in France together forever, but Julia's elderly mother has been getting frailer and is no longer able to cope on her own. Julia is an only child, and after many weeks of difficult discussions the family has decided to move back to the UK to take care of Julia's mother in her final years and let her get to know her grandson properly.

Without Surinder Singh, Bob would have to enter the UK under its ultra-stringent national immigration rules. He would find it very difficult to qualify in his own right. Julia, as a full-time mother and carer of her own mother, would be unable to earn enough to sponsor him. In a nutshell, they'd be stuffed, and it would be unlikely that they would be able to move to the UK together. However, using the Surinder Singh route, Julia, Bob and Sascha could return to the UK under EU free movement law instead of UK national immigration law. Bob would have the right to enter and reside in the UK as Julia's spouse, just as he does in France.




Surinder Singh and Brexit

Surinder Singh applies within the EU ... and so if/when the UK leaves the EU it will no longer apply in the UK. British nationals wanting to return to the UK with a non-British spouse or close family member will face and have to comply with UK national immigration law, just as Julia and Bob would have done without Surinder Singh. This is the case whether there is an exit deal or not, and whether the spouse or family member is an EU citizen or not.

This presents a real issue for many British people living in France or elsewhere in the EU: anyone who has a spouse, partner or close family member who isn't British will be affected if they want or need to move back to the UK. That's why we at British in Europe have been strongly advocating for the continuation of Surinder Singh rights for the finite group of British people who have moved to other EU states. It is entirely within the gift of the UK government to do this and ensure that as British citizens we are able to return to the UK with our families, but sadly they have not shown the willingness to do so.

The new rules

The new immigration rules on returning UK citizens that were published on 9 September provide a grace period during which Surinder Singh rights will still apply:
  • UK citizens can return to the UK with their spouse, civil partner or durable partner where these relationships were formed before Brexit day, as long as they do so before 29 March 2022.
  • UK citizens can return with their spouse or civil partner where their relationships were formed after Brexit day, as long as they do so before 11 pm on 31 December 2020.
  • UK citizens can return with their durable partner where their relationship was formed after Brexit day, as long as they do so before 11 pm on 31 December 2020.
  • UK citizens can return with their child or dependent parent, or the child or dependent parent of their spouse or civil partner, as long as they do so before 11 pm on 29 March 2022. If the British citizen married or entered into a civil partnership after Brexit day and they want to return with the child or dependent parent of the spouse or civil partner, then the return date changes to 11 pm on 31 December 2020.
  • UK citizens can return with a dependent relative other than a parent, so long as that family relationship and the dependency existed before their return to the UK. Their return to the UK must occur before 11 pm on 31 December 2020.

A stark choice


If you're one of the thousands of UK nationals who live in France (or elsewhere in the EU) with a non-British family member, you could face an impossible choice once the grace periods in the paragraph above come to an end: you may have to choose between, say, your elderly parent living in the UK and in need of care, and your French or Australian or other non-British spouse with whom you live in France.

I'm sorry to have to put this so bluntly, but there's no way of softening it because it really is a stark situation - and it will apply if the UK leaves the EU either with a deal (Withdrawal Agreement) or with no deal, and with no exceptions for compassionate reasons.

If you're likely to be affected by this in future, it's essential that you know now so that you can talk it over with your family, make or change your life plans, or prepare for the future in the best way possible.


Kalba



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