Surinder Singh Route
Ultimate Guide to Exercising EU Treaty Immigration Rights via Ireland/UK post-Brexit.
13 Point Guide to Brexit-proofing Your Own Future Now & Bringing Your Family to the EU Via Ireland
We now know that Brexit may have a devastating impact upon a number of EU nationals living in Britain. The UK’s departure from the EU will happen and it is now a fact that the UK will leave the European Union.
Brexit will affect the free movement of UK citizens and people residing in the UK that are EU citizens. It will affect their rights of residence which will in turn affect their right to free movement within the European Union. If you are residing in the UK, then you should be concerned
Since July 2012 all UK Citizens and settled residents within the UK who wish to apply to bring a non EEA partner to the country must meet a minimum income requirement of £18,600 per year before tax. That threshold increases where there are children involved.
For UK Citizens and residents who wish to apply to bring dependent children to live with them in the UK, the post-2012 threshold rises by £3,800 for one child and £2,400 for each additional child. Therefore it is very difficult for people to use the UK domestic process to bring their dependent relatives to the UK to live with them.
Some research has been carried out by the Home Office on the impact that those new tight domestic rules have on those wishing to bring their dependants to the UK.
It is estimated that it would prevent between 13,600 and 17,800 people from coming to the UK every year. However most immigration practitioners would say that that figure could be multiplied a number of times and it is estimated that the impact of the domestic rules would prevent a far greater number.
The Surinder Singh judgement provided that if an EU citizen has exercised EU treaty rights in another member state for three months or more, their EU treaty rights would be triggered when they return to their home state e.g. Britain. That enabled those people to apply for an EU family residence card under EU treaty rights for their family members to come and live with them in the UK.
The Surinder Singh route has been used by thousands of people to avoid the difficult financial requirements under UK Domestic Law.
As a result of the UK domestic rules tightening in 2012, more and more people started to avail of the Surinder Singh route to exercise their EU Treaty rights. That route is called the Surinder Singh route because of a very famous case from the European Court of Justice called R .v. Immigration Appeal Tribunal and Surinder Singh (1992).
The Surinder Singh principle has been reaffirmed in recent European Court of Justice Cases most notably in the case of O .v. the Netherlands (2012). That case confirmed that a period of residence of three months or more in the host member state would be required prior to the EU citizen returning to their home state.
The Surinder Singh route is available for all EU citizens residing in the UK that wish to exercise their treaty rights by bringing their family members to Europe to reside with them. The fact remains that Britain is still part of the EU and until Brexit actually happens and the UK finally exits the European Union, the Surinder Singh route is available.
The UK has not yet triggered Article 50 of the Treaty of Lisbon which will be used to formally notify the intention of Britain to withdraw from the European Union. Once Article 50 is triggered, the UK will no longer be bound by the EU treaties and it would be anticipated that Britain would officially leave the EU within two years after the triggering of Article 50.
Teresa May has refused to guarantee the rights of EU nationals living in the UK after Brexit and therefore British people living across Europe and EU nationals living in the UK are quite rightly very concerned about their right to residence following the Brexit vote and their right to travel freely with their family members.
In relation to Surinder Singh applications, new regulations took effect on 25 November 2016 in the UK which clearly changes the manner in which the UK applies the Surinder Singh test.
The effect of those regulations is not yet known but the regulations effectively changed the ‘centre of life’ test called ‘genuine residence’. It also added a new ‘purpose of residence’ test as well. The new rules are only for European applications. The changes have come into force from 1 February 2017 and some had previously already come into effect.
As one author puts it,
“it seems that since the Brexit vote the government are betting on the EU Commission having more pressing things to worry about than the UK government breaching the free movement treaty.”
Under the new rules all applicants must meet two key requirements once they return to the UK to apply for their family residence card:
- That the relocation was ‘genuine’.
- That the relocation to the EU country was not a means of circumventing the national domestic laws that the dependent family members would ordinarily be subjected to.
This may mean that couples are required to spend a longer period of time in their chosen EU state such as Ireland to rebut any accusations of abusing EU law to circumvent the UK’s national laws. One would suspect that in future a lot of cases will end up in Court in the UK arguing whether the relocation has been genuine.
Whilst the test may have tightened up in the UK, the fact is that the Surinder Singh route still very much exists for all of those who wish to exercise their treaty rights.
According to present information, once Brexit takes place, you will not be able to become an EU citizen in future by residing in the UK and you will not be able to bring your family members to reside and move freely with you throughout the EU if you are not an EU citizen.
Therefore it is time for you to look at the best option for your future.
Once you become or remain an EU national that will give you and your family members all of the benefits that come with being an EU citizen. One of the most fundamental intentions behind Brexit was to curb immigration to the UK and it has certainly achieved that for many people who reside in the UK from so many countries such as Pakistan, India and continents such as Africa, Asia and people residing in Britain from all countries throughout the world that are not within the European Economic Area.
If you currently reside in the UK as an EU national then you should ensure that you protect your EU nationality for your future.
7. How To Leave the UK and Come to Ireland to Maintain Your EU Rights and The Rights Of Your Family Members
There are two ways in which to exercise your EU Treaty rights and bring your family members to Ireland as follows:
- Where the EU citizen has not yet moved to Ireland but has demonstrated their intention to travel to the state and to bring their family members in order to exercise their EU treaty rights
- The EU citizen already resides in Ireland and wishes to bring a family member to Ireland to join him or her.
EU citizens and their family members are entitled to reside and freely move around the EU with their family members. Those rights are governed by EU directive 38/2004/EC which is implemented in Ireland by the European Communities (Free Movement of Persons) Regulations 2015.
Non-visa required national family members of EU Citizens are not subject to pre-entry visa clearance conditions and can enter Ireland freely but subject to normal immigration controls.
9. Current Position for Visa Processing in Ireland of Those Wishing To Exercise Their EU Treaty Rights
Visa required family members of EU citizens must apply for visas before they travel to enable them to enter the Country. According to EU law and the domestic law that implements it, these applications must be processed by way of accelerated process.
However this is not happening in Ireland at present and the State have delayed thousands of those applications. That is the reason why clients of Sinnott Solicitors Dublin and Cork in the past fifteen months have taken a number of High Court Judicial Review Cases in order to compel the Irish Visa office to issue decisions in applications.
Sinnott Solicitors Dublin and Cork recently run High Court immigration cases are potentially landmark cases for EU Citizens and their family member applicants.
The cases could have major implications for those who intend to come to Ireland to exercise their EU rights and for those who are in Ireland and intend to bring their family members to the EU to live with them.
Atif Mahmood And Shabina Atif –V- The Minister For Justice Equality And Law Reform, October (2016)
In short, one case concerned a British EU citizen who was married to a Pakistani National in August 2013 in Pakistan. The wife who resided in Pakistan made an application to accompany her husband to Ireland and that application was made in July 2015. Her husband had not yet moved to Ireland and the application was submitted on the basis of his intention to move to Ireland in order to exercise his EU treaty rights.
The Department of Justice in Ireland did not deal with the application in a timely manner despite a number of threats of legal proceedings as a result of their delay. It then became necessary for Mr. Atif to instruct Sinnott Solicitors Dublin and Cork to bring proceedings before the Irish High Court seeking an order directing the Irish Government to deal with the outstanding application on behalf of Mrs. Atif because she was undoubtedly a qualifying family member pursuant to the directive as she was Mr Atif’s wife.
Mr Atif had not yet moved to the State and the application was submitted on the basis of his intention to move to the State. Sinnott Solicitors Dublin and Cork brought a number of similar cases to the High Court and this case was selected as the primary test case to litigate the legal issues involved.
Mr Atif was successful and the Court held that he was entitled to treat the delay by the Irish State in processing the visa to be so unreasonable as to constitute a breach of the EU Directive. The Court further ordered the state to make a decision on the visa within six weeks of the perfection of the Court Order which is an excellent result for the Atifs.
Mohammed Ahsan –V- The Minster For Justice Equality And Law Reform, October (2016)
The second case was also successful in the Irish High Court and that case concerned an EU citizen, Mr Ahsan who is residing within Ireland exercising his EU Treaty Rights.
Mr Ahsan wanted to bring his wife and his son to Ireland to join him in contrast to the above case where Mr Atif made his application from the UK on the basis of his their intention to reside in Ireland.
The State delayed his application by a number of months which is why he took his case to compel the Irish State to deal with the application. The case is currently under appeal in the Court of Appeal. However the Court of Appeal has ordered that the State must process the visa within a period of 6 weeks from 25 January 2017. This is a positive result for Mr Ahsan and his family.
11. Implications of the Irish Cases for Those Coming From The UK to Reside in Ireland for the Purpose Of Exercising Their EU Treaty Rights
The implications of the Court decisions may have a fundamentally significant impact on family members of EU nationals. The cases have been appealed by the Irish State and are currently under appeal to the Court of Appeal.
It is difficult to see how the State could win this appeal when EU law is very clear on the point and Ireland are bound by EU Law.
However by appealing the cases to the Court of Appeal, it will at least give the State the opportunity to delay the final ruling of the Court whether that be a domestic court or European Court. It is therefor important for those who are EU citizens residing in the UK that wish to bring their family members to Europe to act fast and make their application without delay.
If you lose your right to EU citizenship, then your future remains very uncertain when travelling between European states. There are 28 countries within the EU and one should not cut one off from being allowed to travel freely within those countries for the purpose of work, education and the requirements of their family members in future.
In a recent article published in Cara, the Aer Lingus inflight magazine, Graham Norton was interviewed regarding his thoughts about Brexit. He put the matter very simply when he said;
“The people I feel sorriest for are the youngsters. The wonderful thing about being young is that you have choices and options – life is just a big long corridor and all the doors are open. But in one foul swoop Brexit slammed so many of those doors – to studying abroad, working abroad, travelling. It’s just so depressing that it was mostly people over 60 that have made the world a much, much smaller place for those children.”
Graham Norton went on to say that he will likely take dual citizenship if only to make navigating passport control queues easier after Brexit! He is an Irish national after all and he clearly realises the value of remaining an EU citizen if only to avoid the ‘Non- EU nationals’ queue at the airport!!
Thousands of people have come to Ireland to exercise their EU treaty rights and have submitted applications to bring their family members to Ireland with them. Thousands of other people who have not yet come to Ireland have also made applications on the basis of their intention to exercise their EU rights to come to Ireland and to bring their family members with them.
There is currently a very large backlog in relation to those applications and the State is dealing with those applications at a snail’s pace.
However eventually the state must deal with those applications and if your application is not in, then it cannot be dealt with.
Our advice to you is that the sooner your application is made, the sooner you can increase your chances of Brexit-proofing your future!
IMPORTANT NOTE ON APPLICATIONS
Sinnott Solicitors Dublin and Cork will only accept genuine applications. We are not interested in dealing with any applicant that provides false or misleading documentation as part of an application. We are only interested in genuine applicants. We are not interested in working with any agency or immigration entity that wishes to partner with an Irish solicitors firm in order to process such applications. We will work with reputable established UK-based immigration solicitors who are familiar with the process and who provide a reputable legal service to their clients. We will also act for any genuine individuals who wish to engage the services of an Irish immigration solicitor firm to make their application.
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