- The contents of this site have been updated on 02/07/2016 and now reflect the best possible guess judgement of the impact that the Brexit referendum will have on the Surinder Singh route. Please follow Olga’s blog at www.immigrationpolicy.org.uk for any future updates on post-Brexit policy developments.
Why are we openly talking about moving to Spain specifically in order to create Free Movement rights? Is such intention legal?
Yes. ECJ ruled many times, that so long as exercise of treaty rights is genuine, motivation behind it, including a specific intention to return and trigger Surinder Singh, is irrelevant. Grudgingly, Home Office accedes to that.
Do my family members that I intend to sponsor, have to live in the host member state with me?
A spouse or partner – yes, an ascending relative or a child 18-21, not necessarily.
Does an ascending relative have to be financially dependent before I have ever moved out of Britain, or before I return to it?
Ideally, former, but the latter may also work, especially if you have lived away from the Uk for a long time, and family circumstances during this time have sufficiently changed. It is possible that you may have only created a family life with your spouse, whose parents are being sponsored, during residence in a host state. However, since ascending relative applications to Surinder Singh are not very numerous, in case the latter applies — eg, dependency was only created during residence in the host state — and where the dependent relative themselves is still overseas, eg never resided in Spain under the Regulations, we do not recommend to attempt a Calais entry, and either entry as a tourist and a Residence Card application, or an EEA Family Permit application, are advisable.
Do I or my family members have to apply for/hold NIE, Spanish Residence card, green registration certificate, etc?
Strictly speaking, no. However, exercise of Treaty rights would not be realistically possible, or believable, in Spain without a NIE, and at least the initial issue certificate. Further things, such as empadronamiento, social security registration and tax registration, green certificate, etc, are desirable possible evidence of your genuine residence, but are not strictly necessary. Treaty rights would be triggered even if all your work was illegal and you never paid taxes on it, so long as you have proof it genuinely took place. Similarly, UK recognises residence rights of DIRECT family members of EU citizens (spouses, children, parents, grandparents) as inherent in the Treaties, eg not requiring grant, confirmation or a document. In that spirit, it will recognise a fact of their residence with you in Spain based on indirect evidence, and not require specific immigration documents.
That being said, Spain appears to be not so keen on such recognition, so we can only guarantee how UK government will view it, but not Spanish government.
Additionally, if a family member miraculously manages to obtain a Residence Card in Spain, it will be a document based on which they must be admitted to the UK without any visa or EEA Family permit.
Does Spain permit/recognise same-sex marriage?
Will my relationship qualify if we only married during my residence in Spain?
Are fiancees/unmarried partners eligible?
Fiancees, not really. Not until marriage. Unmarried partners – potentially yes, if they can convince the government of the member state where they wish to reside, that they are in “durable” relationship. The UK applies a test in which it views 2 years of cohabitation as a durable relationship, although court cases have indicated it is possible to prove durability short of that, however strong evidence will be needed (such as a child in common). Please note though, that, in contrast with approach under Uk immigration law, where unmarried partner of 2 years is literally in the same position as a spouse,
What about further extended relatives?
Those must have lived in your household, or be the facto dependant on you, prior to initial exercise of Treaty rights. EG if you worked in Russia and met your wife there, where you lived together in Moscow with your wife’s sister for several years, then you two moved to Cyprus/Spain and now wish to move to the UK, it may work. But her right is not inherent, and an elaborate and well defended application for Family Permit will needs to be filed.
What about financial dependency, what’s the test? What if the dependant ascending relative owns property, has own income, works or able to find work?
DE FACTO whole or partial dependency test applies. It does not need to be dependency out of need — for instance, you may be wealthy and so your parents or in-laws may feel no need to work, even if they are able. They need not be retired. It has to be dependency that is actually taking place, for whatever reasons. They may even do some work or receive a pension, but it has to be clear, on the ACTUAL circumstances of their lives, that they require your support to finance most of the main daily aspects of it. This has to be taken in context of a particular family’s lifestyle and its financial demands. They will not be expected to own property in which they reside, unless perhaps in some rare circumstances where debt on the property is such that equity is negative and they cannot themselves pay the mortgage without you.
The good news is, if they had gifted the property to yourself or their minor grandchildren, they are now de facto dependent on you — even if you got a property from your mother, you are not legally obligated to keep letting her live there, so in doing so, you are still financially providing for her.
If they are of pension age in their country of citizenship or actual residence, you will be expected to address their receipt of pension and show how it fits into their overall circumstances.
What is a “center of life” test?
It is not a concept in EU law, but an invention of UK authorities, which is basically a label they put on attempt to combat what they see as abuse of Surinder Singh rights. It centers around a concept that simply working in a host member state very occasionally or for a very short time, or, for instance on a cross-border principle (such as, living in Belfast but working in nearby Dublin) , does not count. In principal, ECJ agreed with these concerns in O and B v.Netherlands, and now UK government says that it means the “center of life” requirement is vindicated. This isn’t so – the way the UK govt applies the requirement, has nothing to do with what ECJ considered. The legal consensus continues to be that the requirement, as phrased, is illegal under EU law,
and the Commission had initiated an investigation. That being said, under the current Brexit conditions it is unlikely that any change will be forced, so the advice is to attempt to comply with the requirement.
Basically, it should be met if-
You have a permanent accommodation in the EU host state, such as a long-term rental or property ownership, along with other obligations, such as utilities, taxes, etc
You speak, or are making visible efforts to learn, the host country’s language
If you have children, you educate them in local schools during your residence; if you have a spouse or partner, they move with you
You pay taxes as a resident (strictly speaking, for Free Movement it is not necessary at all to pay taxes, but it is desirable under Singh)
You are involved with the local community in some way (schich, social gatherings, volunteer groups)
Majority of long-term British expat residents of Spain will meet the test.
Do my children really have to attend a school in Spain during this time?
Especially considering that you are barely going to have three months to show, yes. However if they are over 16 and so could live alone, or perhaps you and their other parent are separated, then conceivably they would not be expected to accompany you.
How much do I have to physically be present in the host member state to sponsor my spouse/stepchild/in-laws?
This is a most common question, to which however there is not an easy answer. On one hand, no one tracks EU citizen movements (yet), and even to the extent that they are now recorded, this is for anti-terrorism purposes, not immigration sponsorship. There is not an enquiry in such an application, that seeks to establish the number of days you spend in a host state over the period exactly, or asks for all dates of your travel in and out of it.
However, your presence should be sufficient to genuinely establish all of the links with the state that you need, as well as meet the center of life transfer test, and certainly to actually undertake the economic activity prescribed.
If you are thinking that it is possible to accomplish this without really ever being there and keeping a full-time job in the UK, don’t.
This undertaking is really for the adventurous – since most Singh route Brits are naturalised, former immigrant Brits who had themselves perhaps already lived in many countries and have taken a long journey to the UK, for most of us to go and establish ourselves in yet a new country for say 6 month, is not really that difficult. It is much more unthinkable for many Brits who had never left home. But you need to be prepared to start calling Spain home, then you will probably have met the test.
Do I have to sell my property/quit my job in the UK?
You certainly do not have to sell property in the UK, although it may help your cause if you put it up for rent or provide evidence that you have let someone else live there as a tenant while you are gone.
As for a job, you can take a few months off unpaid or do some remote working, which should be fine so long as you are also engaged in Spain-based economic activity. Some employment contracts allow for a sabbatical for education or travel up to 6 months — look into yours, you may not know that it does.
If your job does not allow that, then perhaps the answer is yes, you have to quit. Immigration is never easy.
What if we used to live in Spain/ another EU country, but have since moved to a third country, say Russia or the United States or Australia?
You still qualify for Surinder Singh, provided you carried out an economic activity, eg work or self-employment, at some time in the past in a country which was at that time an EU member.
You will need some evidence of that, which is preferably old payslips, bank statement, employment contracts, business cards, etc. If the employer still exists, a letter from them.
A passage of time since does not matter – there is currently no requirement that the return to teh UK should be immediately or within any period of time after the exercise of Treaty rights in another state.
The advice in your case will depend on your sponsored migrant’s ability to enter the UK as a visitor. If they are able to do so, say on a US or Canadian passport, or they can easily get, or hold, a visitor visa, then the advice will be to enter in this capacity and apply for a Residence Card under Surinder Singh immediately and before mid-September.
If you are looking to sponsor
I have sponsored my spouse under UK immigration Rules and he/she now holds a spouse visa. We are now interested in sponsoring my in-laws and/or stepchildren, can we still use Surinder Singh for that?
Can children over 21 be sponsored?
Yes, if they are de facto financially dependent. Their ability to work or efforts to find work are not relevant. However, this looks most credible in scenarios where parents have substantial wealth, eg any meager efforts at employment a young person has do not really apy for a lifestyle that has become customary in the family due to parents’ financial position.
My wife and I already live in Spain – and have done for years. We are retired, and own property here, so we live here as self-sufficient residents. Do we qualify?
This is a difficult question. UK government will say no – it does not currently accept self-sufficiency as basis for Surinder Singh. It requires that there has been an economic activity — such as, work or self-employment. Therefore if you are still here, the advice currently will be, search the memory of your residence here for anything that can be classed as work or business,, no matter how few hours or low earnings may have been involved, so long as it was systematic over some period of time. Perhaps you taught English, or gave music lessons? Babysat? Painted and sold your work? These could all qualify and do not have to be recent. Failing that, the advice will be to now undertake work, or register as autonomo and engage in economic activity.
Failing all that — or perhaps if you are no longer in position to do that or have already left the host state, there IS a possibility to pursue your family’s Free Movement rights in the UK. Several cases are currently underway in the UK that challenge Home Office on its refusal to fully adopt O and B v Netherlands, which ruled that self-sufficiency and student residence should also be accepted for Singh purposes. Depending on particular details of your circumstances, you may have a chance to challenge the UK government against any refusal to issue a Residence card, and eventually prevail, even if that is after Free Movement suspension following Brexit. For example, those whose source of wealth during the self-sufficiency residence in a host state, was not in England but in a third country, may be in a stronger position (although all of this right now is a hypothesis, since no major decision on this have been made in the UK so far).
So we would encourage you to pursue this route all the same, if there is no other immigration option for a relative involved, or you are pursuing it in a manner which does not create immigration peril (such as, an appeal against a refusal to issue an EEA FP for someone who, in any case, is not in the UK). In this case, you need to seek advice before course of action is decided.
In such a case, Olga may be able to represent you in your future case, including appeals, on a voluntary basis – please get in touch with her through her blog.
How can my family member enter the UK? Do they need an EEA Family Permit before entry?
If your family member resides with you in a host state, and they hold a valid (in-date) document called a “residence card of a family member of the European Union”, one with a 5-year validity or a permanent card, then they do NOT need an EEA Family permit to enter the UK, if they are travelling with you. They should be, under the Regulations, admitted on their current document.
If they do not hold a residence card, they should still be admitted visa-free through a juxtaposed control post, such as Calais, but good luck boarding a plane if they are a visa national. Many families in this position do enter successfully through Calais. Our government grudgingly acknowledges, when pressed, that EEA Family permit is optional, and the Regulations generally require that all those with Free Movement rights be allowed entry. Usually they are. But you need to print out the Regulations, and be very ready and insistent to state your case. Some of the entries did fail, when circumstances that were unclear or lay in grey area, were involved.
Please note that Calais or otherwise visa-free entry is suitable in cases where “inherent” rights are involved, eg those of direct family members (spouse, children, parents, grandparents). Where there are unmarried partners or other extended relatives, this may be harder, and right to a visa-free entry is not as clear (unless they hold a Residence Card of another member state already). An application for an EEA FP may be given a thought in this case.
If your relative has means of entering the UK as a visitor or in any other immigration status, use it. It is not currently (since Metock) required to have any particular immigration status to assert Free Movement rights, or any at all, for that matter – so it is much easier to enter in any status at all, and make an application in-country for a Residence card. Please however be mindful of a possible need to do so before mid-September, in view-of post-Brexit measures that may be implemented..
If your relative is elderly and/or lives in a distant third country and cannot readily enter the UK in another status, an EEA FP application there and subsequent UK-based Tribunal appeal in case of a refusal, may be a way to go, but the application better be filed before any possible repeal of the Regulations post-Brexit.
I have previously exercised my rights in another member state, but have only subsequently married/entered in a civil partnership. Can I now sponsor my partner and his/her family under Surinder Singh?
No, not if you had not yet been in the relationship with them at the time of exercise of Treaty rights. The courts generally require that family life will have been “created or strengthened” during residence in host state, where relationship is a result of a marriage or partnership..
This is because these rules exist to protect right to Free Movement by EU citizens, and eliminate any restrictions that may deter it. If you had not yet met your future spouse/partner at the time you availed yourself to Free Movement, clearly you could not have been deterred from it by restrictions on their immigration.
If you can show that you had already been in a “durable partnership” at the time of exercise of Treaty Rights, you may have a case, but this needs to be approached with great caution. Please remember, rights of durable partners are not “inherent”.
What steps are involved in move to Spain and self-employment there? What are your services and how much do they cost?
In general, you need to do the following, and we can help with all of these steps.
Rent accommodation long-term, expect to spend 300-500 EUR a month plus 1-2 months deposit.
Arrange for Spanish lessons if you do not yet speak it, and have children enrolled in school. There are International schools, but in many there is very limited native English speaking staff, or number of actually international students, so your kid will have to learn some Spanish (trust me, this can actually be an awesome experience for them!)
Get NIE – tax and foreigner ID number
Open bank account
Arrange for utilities/phone/Internet/mobile services
Register with the local municipality – padron – on a residence register.
Register with the tax agency – Agencia Tributaria – and notify them that you are engaging in an economic activity of a particular kind
Register with Social Security system and sign up to make social security (aka National Insurance) payments. They are mandatory and comprise 53 EUR a month for the first 6 months.
Get a green registration certificate of an EU national – optional under EU law, but Spain likes you to do it, and helpful for Surinder Singh purposes.
Residence card application by your non-EU spouse/children really optional, but depending on their nationality and time spent in Spain, may be needed in practice, as Spain is not very big on Metock and inherent rights, even though UK is.
This may entail additional problems around “super legalisation” of your third country marriage certificates or legal translation of third country documents that bear Hague convention apostilles.
Then you have to actually do the work, promote your business, etc. You may obviously have to get office/shop space depending on the nature of it.
Then you have to make sure all documents are gathered and paper train maintained, for a future Singh application for EEA FP, and/or UK re-entry, as well as future Residence Card application.
We can help you with all of these steps, and Olga, who is a Level 3 OISC advisor licensed to represent you, if need be, in UK Immigration Tribunals, will take up your case on a voluntary basis if any freeze on Free Movement in the UK catches you out while you are in process of taking a Surinder Singh route (eg at least you already exercise treaty rights in a host state, when any Regulations repeal happens).
How much exactly our services will cost in Spain, depends on your particular position, but they range from 60 EUR for a detailed consultation to 1000 EUR, paid in installments, for a complete service that will be with you every step of the way till the end.
This is inclusive of Spain IVA (VAT), but exclusive of any actual costs or taxes paid to landlords, utility providers, authorities, educational providers, etc.