British nationals who have travelled to another EEA Member State and exercised Treaty rights in that state (often, but not always, by working there) will be able to return to the UK accompanied by non-EEA family members and will be able to rely on the Treaty rights/EU law. This principle (also described as the ‘Surinder Singh principle’) was established in the case of R v IAT and Surinder Singh ex p SSHD [1992] 3 CMLR 358. Regulation 9 of the Immigration (EEA) Regulations 2006 incorporated the Surinder Singh judgment. The requirements are:
a) that the British national resided in an EEA state as a worker, student, self-employed, self-sufficient person or acquired the right of permanent residence in an EEA state;
b) the family member and the British national resided together in the EEA state and their residence was genuine;
c) the British citizen would satisfy the conditions for residence if they were an EEA national (e.g. they are within their first 3 months of residence (initial rights of residence) or are a qualified person);
d) the purpose of the residence in the EEA host country was not to avoid
any U.K immigration law applying to non-EEA nationals.
Definition of family member
The applicant must provide evidence of their relationship as a direct family member (reg 7) of the British citizen sponsor.
The UKVI guidance titled ‘Free Movement Rights: family members of British citizens’ (October 2017) states that ‘Applicants claiming to be extended family members (for example, durable partners or dependent relatives) of British citizens do not have a right of residence under the 2016 regulations. If the applicant is an extended family member, you must refuse the application.’
Genuine residence
Following the introduction of the tough financial requirements in July 2012 in relation to family applications under the Immigration Rules (see Chapter 5), there was a significant rise in the number of applications made via the Surinder Singh route, as this was a far easier route than via the domestic law.
The provisions subsequently introduced in the ‘genuine residence test’ made it harder for couples to return to the UK under the EEA route.
Factors relevant to whether the residence was genuine are set out in regulation 9 (3):
- whether the centre of the British national’s life transferred to the EEA state;
- the length of the family members and the British national’s joint residence in the EEA state.
- the nature and quality of the parties’ accommodation in the EEA state, and whether it is or was the British national’s principle home. For example, a mortgaged home or long-term rented accommodation is more likely to indicate genuine residence than living at a hotel or a bed and breakfast, or short stays with friends.
- the parties’ degree of integration in the EEA state, for example proof of speaking the language, having children born or living there, or involvement in the local community;
- whether the family member’s first lawful residence in the EU with the British national was in the EEA state.
However, in ZA (Reg 9. EEA Regs; abuse of rights) Afghanistan [2019] UKUT 281 (IAC), the Upper Tribunal found that there is no basis in EU law for the centre of life test. It further found that the test is not to be applied when Judges assess Surinder Singh cases that appear before them.