17 February 2016
The upcoming referendum over the UK’s position within the EU has significant implications for immigration. Whether Britain votes to stay or to leave, changes are expected that will affect not just foreign nationals currently living in the UK, but also British citizens with non-European spouses wishing to settle in the UK permanently. The deal negotiated by David Cameron includes a section that may close off the Surinder Singh route for these couples. The current UK immigration rules for non-EU spouses have already been labelled ‘absurd’, since British citizens must earn more than £18,600 annually to bring a non-EU spouse to live with them in the UK. This amount rises to £22,400 if the couple has a child who does not possess British citizenship and to £2,400 for each additional child. The current policy effectively bars up to 47 per cent of working Brits from living alongside their non-EU spouse in the UK.
The new draft EU agreement proposes to make the situation even bleaker for affected families. Currently, a loophole known as the ‘Surinder Singh route’ enables many families to escape the harshness of the law. Under this route, British citizens who have transferred their centre of life to another EU country with their foreign spouse may subsequently bring them back to the UK by relying on EU freedom of movement laws. The famed ‘Surinder Singh’ judgement has been officially recognised as entitling family members of British citizens who have lived and worked in another EEA country for a reasonable amount of time, to obtain the EEA family permit under EU legislation as opposed to applying for a settlement spouse visa under UK immigration Rules. After the initial six month permit expires, foreign spouses can stay in the UK under specific circumstances by applying for a 5-year residence card from inside the UK, which also includes qualification under the Surinder Singh route.
A small note in the new EU agreement suggests that this immigration loophole may now be closed. The deal states that the right to free movement within the EU can be denied to any non-EU national who only became resident after marrying an EU citizen or whose European spouse moved to a different EU country before the marriage. The deal also suggests that member states should also be able to deny visa requests if there is an intention to abuse the right to freedom of movement to get around immigration regulations.
Currently, it is estimated that hundreds of families are trying to obtain EEA family permits to live in the UK using the Surinder Singh route. Should the draft be approved, then these and many more future families will have to bear the brunt of tougher immigration rules, with nobody fighting in their corner. Couples who have relied on the loophole will effectively have to apply for a settlement spousal visa under UK immigration Rules which requires the sponsoring British citizens to meet the income threshold criteria for approval as defined by UK Visas and Immigration (UKVI). The effect may be that many of these families may actually make a new life in other EU member states, deciding not to return to the UK due to current policies. This will undoubtedly be a burden to those with other family members in the UK, who do not wish to be separated from them. Some argue that the rule is discriminatory against fundamental principles set out in the European Convention of Human Rights, which deals with the respect for family and private life.
The draft agreement hits low income families particularly hard, which many argue is discriminatory. Those with no hopes of finding a high paying job in order to meet the financial requirement to bring a foreign partner to the UK on a settlement visa, will be forced to live outside the UK, to keep their family from being torn apart. It can be argued that monetary limits should not dictate a family’s right to live together in the UK. Of course, the draft is only part of the Prime Minister’s proposed renegotiation deal with the EU; the law will have to change and if it does, it will no doubt be challenged as a breach of EU human rights law.