The ‘Surinder Singh’ route permits family members of a ‘qualifying British citizen’ to return with them or join them in the UK after a period of residence in an EU Member State (or Switzerland) in accordance with EU free movement law.
This article looks at the requirements for those who wish to rely on this route to return to the UK, following the end of the Brexit transition period at 2300 GMT on 31 December 2020. Applicants will need to apply for an EU Settlement Scheme Family Permit on which they can enter the UK. The requirements are set out in Appendix EU Family Permit, to the Immigration Rules.
Please note, this article only looks at British citizens and their family members who have not yet returned to the UK but plan to do so.
When do we have to arrive in the UK?
Both the Applicant and the British citizen must be returning to the UK before 2300 GMT on 29 March 2022. If they arrive later than this, they will need to provide reasonable grounds for failing to meet this deadline.
What is a ‘qualifying British citizen’?
The British citizen must have resided with their family member in an EEA state where they are exercising Treaty rights (i.e. they were a worker, a self-employed person, a self-sufficient person or a student) before 31 December 2020, and continue to do so at the date of the application, or immediately before they returned to the UK.
The British citizen will need to provide evidence of their exercise of Treaty rights in the EEA state and of their ‘genuine’ residence. This means they will need to show that their family life with the applicant was created or strengthened while living in the EEA State. There is no need to show that the ‘centre of their life’ moved there.
Alternatively, if they acquired the right of permanent residence in the EEA state in which they are residing with their family member before 31 December 2020, this can be relied on.
There is a slight anomaly in how ‘qualifying British citizen’ and ‘family member of a qualifying British citizen’ are defined, as the definitions indicate that the British citizen and their family member must be returning to the UK together.
However, the eligibility criteria in paragraph FP6(2) make it clear that the British citizen can return to the UK before the applicant:
‘The qualifying British citizen is resident in the UK or will be travelling to the UK with the applicant within six months of the date of application’.
Which family members are eligible?
The family relationship should have existed prior to the date of withdrawal of the UK from the EU, which occurred at 2300 GMT on 31 January 2020. The relationship must continue to exist at the date of application.
Spouse or civil partner
Applicants who married or formed their civil partnership with a British citizen before 31 January 2020 will be eligible.
They will also be eligible if they married or formed their civil partnership after 31 January 2020, as long as they can show that they were in a durable relationship with a British citizen before this date. A ‘durable relationship’ is generally accepted where the couple have lived together in a relationship akin to a marriage or civil partnership for at least two years. Alternatively, it may be accepted where there is other significant evidence of the durable relationship. Clearly the fact that the relationship has now led to marriage/ civil partnership will be relevant.
If the couple were in a durable relationship by 31 January 2020 but are not yet married, they can either apply as a durable partner (see below), or as a spouse/ civil partner if they satisfy the decision maker that the marriage or civil partnership will be contracted before their arrival to the UK.
The partnership must have been formed and durable by 31 January 2020 and remain durable at the date of application. Evidence must be provided in support of this.
This includes children of the British citizen or their spouse/civil partner under the age of 21, or dependent children over the age of 21 who can provide evidence of their dependency prior to 31 December 2020. Children who were born or adopted after 31 December 2020 are also eligible.
This will include the direct relative in the ascending line of the British citizen or their spouse or civil partner.
The applicant must have been dependent on the British citizen (or their spouse or civil partner) on 31 December 2020. However, dependency is assumed and no evidence of this is required.
Other dependent relatives
Other relatives of the British citizen or their spouse/civil partner may be eligible if they are dependent on them, a member of their household, or in strict need of their personal care on serious health grounds.
Children under 18 of the durable partner of the British citizen (including adopted children) may also qualify.
Evidence must be provided to show that the family relationship and where relevant, the person’s dependency (or membership of the household, or need for personal care), existed before 31 December 2020 and continues to exist at the date of the application.
What if the relationship was formed after 31 January 2020?
Where the relationship was formed in the 11 month period between the withdrawal date, 31 January 2020, and the end of the implementation period, 31 December 2020, applicants may still be able to rely on this route if they can satisfy the entry clearance officer that there are reasonable grounds that they did not return to the UK with the British citizen before 31 December 2020.
This may assist those who were prevented from travelling to the UK by 31 December 2020, by reason of covid-19 related restrictions. The Home Office is preparing non-exhaustive guidance on what constitutes ‘reasonable grounds’ but this has not yet been published.
Alternatively, applicants may be able to apply for partner and family visas pursuant to Appendix FM to the Immigration Rules.
What do I need to do after I arrive in the UK?
After the applicant and British citizen have arrived in the UK, the applicant can apply for Pre-Settled Status. They will need to show that they have returned to the UK before 29 March 2022 as the family member of a qualifying British citizen and meet similar requirements to those set out above. The EU Settlement Scheme Family Permit can be used to evidence the family relationship and entry as a family member of a qualifying British citizen.
After 5 years’ continuous residence in the UK with Pre-Settled Status, the applicant may be eligible for Settled Status as the family member of a qualifying British citizen.