HELP needed urgently on surinder singh route

[nigelkembrey]

I today travelled to Holland as a last desperate act to get my brazilian partner and mother of our 2 british sons a visa. I have been trying for 2 years including selling of my house to put money in bank to meet savings requirement. They moved goalposts again and english test she passed in march is now a fail ,my lawyer advising me 5 days before visa expired and leaving us in deep shit as once again she not in position to apply and had a flight booked for tomorrow to do the application. We fled to Holland to not overstay visa with little preparation of surinder singh as if she goes back to brazil I fear she will never get into the UK
We went through eurotunnel this morning and we were rushed through passport control by eurotunnel guys waving everybody madly through. I didnt have time to think and passports were not stamped.
So , am I as screwed as I fear ? She did not get schengen 90 day stamp visa. I guess she is now here illegal ? Did I need my passport stamped too ? Oh my god, we cant go back to england because visas expired and now this. Never in my life have I been in such a terrible situation..... please help !!!

[Jambo]

Are you married?

Normally the (non) existence of a stamp doesn't affect the immgration status of family members of EEA national.

[EUsmileWEallsmile]

It is terrible that people have to go to extremes to be with their own family.

As a British citizen, and therefore an EU citizen, you can move to any other EU state under the terms of directive 204/38/ec. I suggest you read that to understand your rights. Best of luck.

[nigelkembrey]

we are not married, we have been together for 6 years now, mostly in Brazil. The translations of the documents from Brazil cost me £4000 alone, and STILL we cannot arrive at a point where she can apply because the rules keep changing. So to confirm,we can still do the surinder singh route eve without passports being stamped as entering Europe and leaving UK ?

[Jambo]

Yes (for the stamps) but the issue is that the UK would only recognise married couples for Singh. Not unmarried couples.

[nigelkembrey]

The UKBA guidance seems to accept couples under route established by Singh ? Or am I wrong about that. They reject applications if relationship is not `durable`. Or am I completely wrong here and wasting my time ?

[Amber]

But does 'durable' not include living together for at least two years?

[nigelkembrey]

But does 'durable' not include living together for at least two years?

The UKBA EEA Family Permit website states the following

If you are applying as the EEA national's unmarried partner, you should provide evidence that you have been living with them in a relationship akin to marriage for more than 2 years. It is unlikely that we would consider a shorter relationship as 'durable', in accordance with the EEA Regulations.

We have been together over 5 years and have 2 british children. We have paid a fortune having 2 years brazil bills translated to prove this. This surely is what they are asking, or have I got something wrong ?

[Jambo]

Singh doesn't mean being treated as EEA national for all aspects of the Free movement directive. It allows you under certain conditions to be regarded as such for certain elements of the directive. What you quoted refers to family members of (non UK) EEA nationals.

The UK view Singh in a very narrow way. To use this route, your circumstances need to be similar to Singh (i.e. only employment is accepted as treaty rights. Only married couples). See the legislation in Regulation 9. You can challenge this view in the courts but that more time and money.

Have you considered getting married? (I'm not a big supporter of getting married for the sake of immigration (when the relationship is genuine of course) but in your case it might be the best option). If you live together somewhere in Europe and get married before moving to the UK, you can qualify for Singh.

[nigelkembrey]

Jambo, I appreciate your help, I have sold my house to try and comply with the HO, I have spent a fortune over 2 years trying, I am now in Holland facing a wall of bureaucracy and you are telling me its for nothing because it wont work. To say that there is a limit to how much a human being can endure is not an exageration.
The EEA family permit section talks about both spouses and unmarried couples. Why would they do that if unmarried couples cannot apply ? According to your legislation link she would be an extended family and subject to the following as quoted

Regulation 8 defines extended family members. In accordance with Regulation 7(3).
They are only to be treated as family members for the purposes of the EEA
Regulations if they have been issued with an EEA family permit or a registration
certificate or residence card.

Does this mean a dutch residence card for her makes it ok ? also >.....


(2) An entry clearance officer may issue an EEA family permit to an extended family member of an EEA national who applies for one if—

(a)the relevant EEA national satisfies the condition in paragraph (1)(a);
(b)the extended family member wishes to accompany the relevant EEA national to the United Kingdom or to join him there; and
(c)in all the circumstances, it appears to the entry clearance officer appropriate to issue the EEA family permit.
(3) Where an entry clearance officer receives an application under paragraph (2) he shall undertake an extensive examination of the personal circumstances of the applicant and if he refuses the application shall give reasons justifying the refusal unless this is contrary to the interests of national security.

This suggests they are granted but with more checking... or are they refusing these cases ? I need to know this,otherwise I may as well buy an air ticket for her tomorrow and say goodbye to my family. I believe that what you are saying is that the only bit of the EEA family permit being aplied to Brits is the part that surinder singh exploited and the rest remains out of bounds which to me is simply outrageous if its true, and also conflicts advice from my lawyer in the UK.... as follows

However, if you prefer to not apply under the Immigration Rules (which requires her to pass an English test) and apply under Surinder Singh (which requires you all to move to a EU member state), then I appreciate that that is a matter for you.



The advice from a barrister’s about the length of time the British citizen is required to stay in the member state exercising treaty rights in order for their partner to apply under the Surinder Singh route, is that it is good practice for them to stay in the EU Member State exercising Treaty rights the same amount of time as the individual in the Surinder Singh case – which is 6 - 7 months.



If you intend to exercise treaty rights as a worker, you should ensure you collate documents to verify your lawful employment, which include evidence that:-



1. You have a genuine job – Contract of employment

2. The required tax in respect of your salary is paid – wage slips

3. And that the funds are paid into your account – bank statements



You should also ensure that all the above documents are originals and official translations (where appropriate) are submitted with the application.



You should continue to collate evidence of your continued cohabitation together as Ingrid will be applying as your ‘durable partner’ under the EEA Regulations.



Please feel free to give me a call to discuss what direction you would like your instructions from Davidson Morris to take.

[Jambo]

The EEA family permit section talks about both spouses and unmarried couples. Why would they do that if unmarried couples cannot apply ?

unmarried couples of non-UK EEA nationals can apply.

I believe that what you are saying is that the only bit of the EEA family permit being aplied to Brits is the part that surinder singh exploited and the rest remains out of bounds which to me is simply outrageous if its true, and also conflicts advice from my lawyer in the UK.... as follows

Correct. Normally EEA nationals can't use the EEA route in their home country (same goes for French in France, Dutch in the Netherlands) except follow the path of Singh but this doesn't mean all the venues of EEA route are open.

I believe the main issue your solicitor is missing is that you are not married. I'm not a solicitor or an immigration advisor but I believe I understand the EEA regulations well.



I suggest you contact the European Cases Policy Team in UKBA to find out their view - whether durable relationship is accepted in Surinder Singh cases.

Their email address is EuropeanOperational@homeoffice.gsi.gov.uk

Make sure you construct your query as a general policy one as they can't comment on individual cases. Also make sure the situation is explained clearly and the questions asked are to the point. Generic questions would get generic answers.

[nigelkembrey]

I suggest you contact the European Cases Policy Team in UKBA to find out their view - whether durable relationship is accepted in Surinder Singh cases.

Their email address is EuropeanOperational@homeoffice.gsi.gov.uk

Make sure you construct your query as a general policy one as they can't comment on individual cases. Also make sure the situation is explained clearly and the questions asked are to the point. Generic questions would get generic answers.

I think thats the best advice I have had !

[Amber]

Please post the response when you get one.

[AngelaV]

I have directed Nigel to a group who can share their knowledge and experience but I just wanted to post on here in case there are other unmarried couples who are worried about this route.

There has been a few people who have completed the Surnder Singh route as unmarried partners.

You must have been in a relationship for 2 years plus and be able to prove the relationship but it is possible and has been accomplished.

Being married makes it much, much easier but there are times that the couple cannot be married. You might have to work harder for it but it is possible.

The following has been copied from the Directive, I hope it helps:

Have a look at Article 3, point 2b.


Article 3

Beneficiaries

1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the
Union citizen;

(b) the partner with whom the Union citizen has a durable relationship, duly attested.

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.

[Jambo]

I have directed Nigel to a group who can share their knowledge and experience but I just wanted to post on here in case there are other unmarried couples who are worried about this route.

There has been a few people who have completed the Surnder Singh route as unmarried partners.

You must have been in a relationship for 2 years plus and be able to prove the relationship but it is possible and has been accomplished.

Being married makes it much, much easier but there are times that the couple cannot be married. You might have to work harder for it but it is possible.

The following has been copied from the Directive, I hope it helps:

Have a look at Article 3, point 2b.


Article 3

Beneficiaries

1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the
Union citizen;

(b) the partner with whom the Union citizen has a durable relationship, duly attested.

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.

Your location says Ireland. I understand that you are currently in the process of using this route to return to the UK via Ireland.

This would be very encouraging to hear that the UKBA accepts durable relationship for Surinder Singh.

The directives allows unmarried couples to be considered family member. However as you yourself stated Article 3(1) states

This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national

.
The exception is in Surinder Singh cases and the HO view (as I aware) is that only similar conditions to Surinder Singh will allow you to use this route. Singh was married and so only married couples can use this route.

[AngelaV]

Hi there,

This might help:

The following has been copied over from the Home office RIGHTS OF NON-EEA NATIONAL FAMILY MEMBERS OF EUROPEAN ECONOMIC AREA (EEA) NATIONALS:

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary


²EC law now recognises “durable relationships”. For this reason an applicant may also be considered under regulation 8 if s/he:
Is the EEA national‟s partner (other than a civil partner) and can show the decision maker that s/he is in a durable relationship with the EEA national.
For guidance on how to assess if a relationship is durable, see Chapter 5 of the ECIs..

Directive 2004/38 refers to facilitating the entry and residence of any member of the family who meets any of the above conditions. Providing that a person falls within one of these categories, we may issue a residence card if in all the circumstances it appears appropriate to do so. The Directive states:

“The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people”
When deciding whether it is appropriate in all the circumstances to issue a residence card, we must assess whether refusing the family member would deter the EEA national from exercising his/her Treaty rights or would create an effective obstacle to exercise of Treaty rights. Each case must be assessed on an individual basis but an example of where it might be appropriate to issue a residence card would be if the family member was very elderly or incapacitated. In assessing such cases, it would be important to consider whether there were any relatives to care for him/her in the home country.

[AngelaV]

Hi Jambo,

Yes, I am in Ireland doing the Surinder Singh route in a self-employed capacity. I've been in Ireland since 28th June so in week 10.

I am learning new things every day relating to this route.

[Jambo]

Hi there,

This might help:

The following has been copied over from the Home office RIGHTS OF NON-EEA NATIONAL FAMILY MEMBERS OF EUROPEAN ECONOMIC AREA (EEA) NATIONALS:

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary


²EC law now recognises “durable relationships”. For this reason an applicant may also be considered under regulation 8 if s/he:
Is the EEA national‟s partner (other than a civil partner) and can show the decision maker that s/he is in a durable relationship with the EEA national.
For guidance on how to assess if a relationship is durable, see Chapter 5 of the ECIs..

Directive 2004/38 refers to facilitating the entry and residence of any member of the family who meets any of the above conditions. Providing that a person falls within one of these categories, we may issue a residence card if in all the circumstances it appears appropriate to do so. The Directive states:

“The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people”
When deciding whether it is appropriate in all the circumstances to issue a residence card, we must assess whether refusing the family member would deter the EEA national from exercising his/her Treaty rights or would create an effective obstacle to exercise of Treaty rights. Each case must be assessed on an individual basis but an example of where it might be appropriate to issue a residence card would be if the family member was very elderly or incapacitated. In assessing such cases, it would be important to consider whether there were any relatives to care for him/her in the home country.

Again, you fail to distinguish between EEA nationals (other than UK nationals in the UK) who can enjoy from the directive and UK nationals returning to the UK under Surinde Singh. The UKBA view is that conforming to Surinder Singh doesn't mean the UK nationals is considered EEA nationals for all aspects of the directive. It allows him (under certain conditions) to enjoy certain elements of the directive.

[dalebutt]

I have seen 2 unmarried couples on this forum who received EEA family permit respectively. It can be achieved as it has been achieved in the past. I will get the link for you nigel

[Jambo]

I'm aware of Rolfus's case but this is after a long legal battle with the HO.

[dalebutt]

That's correct Jambo, rolfus and one other guy from Germany, which UKBA says his marriage cannot be recognised in the UK due to the fact that he didn't received decree absolute before contracting his second marriage. His application in Germany was in fact quick and easy, he had no problem with the application at all

[dalebutt]

That's correct Jambo, rolfus and one other guy from Germany, which UKBA says his marriage cannot be recognised in the UK due to the fact that he didn't received decree absolute before contracting his second marriage. His application in Germany was in fact quick and easy, he had no problem with the application at all

[Jambo]

That's correct Jambo, rolfus and one other guy from Germany, which UKBA says his marriage cannot be recognised in the UK due to the fact that he didn't received decree absolute before contracting his second marriage. His application in Germany was in fact quick and easy, he had no problem with the application at all

You must be referring to ultragujar's case.

I would be interested to see the response from the Policy Team.

[dalebutt]

Yea jambo, that's the other guy I was referring to

[AngelaV]

Hi Jambo,

As far as I am aware, by using the Surinder Singh route, you must basically exercise your treaty rights in another member state to qualify. According to the EEA2 (UK residence form) application form, their definition of having exercised those rights (Surinder Singh Route) is:

"If section 5 (Surinder Singh cases) has been completed: evidence that you and your British citizen family member resided in another EEA member state at a time when they were a worker or self-employed person in that member state, such as tenancy agreements, bank statements, utility
bills. You should also refer to the section below for employment or self-employment as applicable."

EEA2 Form:

As evidence of relationships:

For family relationships: marriage certificates, civil partnership certificates or birth certificates.

For unmarried partners: proof that you are in a durable relationship. Generally this is proof that you have been in a subsisting relationship for two years or more, such as joint bank or building society statements, joint tenancy agreements, council tax bills or evidence that you are both paying
utility bills at the property at which you reside.

As evidence of current residence in the UK by you and your family members:

Proof of residence: this can include tenancy agreements, utility bills and bank statements. For children this could include letters from their school.

I often refer to the EEA2 application when I have a query regarding the process and base my actions according to what proof I will have to provide after we have exercised our treaty rights in Ireland and ready to apply for my husband's residency card in the UK.

Although, I do have to stress that I am definitely not an expert on this, I just have a keen interest.