What next for those on the ‘Surinder Singh’ visa route to the UK?

What is a Surinder Singh visa application?

A ‘Surinder Singh’ application is named after the applicant whose court case first granted the right for British citizens to return to the United Kingdom following a period in an EU country, bringing their family members with them.

It is now more formally known as a European Union Family Permit application for Qualifying British Citizens.

Am I a Qualifying British Citizen?

In short, if you were a British national exercising your rights to free movement in an EU country before Brexit, you probably are a Qualifying British Citizen and you should be allowed to move back to the UK with your partner or family member(s).

You will be expected to provide proof of your life in the EU country and evidence that you were exercising your Treaty rights there (working, job-hunting, studying, etc).

The relevant family member does not need to have spent time in the UK before but does need to have been an integral part of your life in the EU state.

Sounds good – what’s the drawback?

Unfortunately, the deadline for Surinder Singh applications to be made was 29 March 2022. Anyone who did not submit an application before then has missed the deadline to make an in-time application.

Furthermore, the applicant and their British family member should have been in the UK before the 29 March 2022 in order to qualify but many have, in fact, missed this deadline through no fault of their own, as detailed below.

Late applications under the Surinder Singh route are allowed but the short-lived generosity of the Home Office which permits late applications under the European Union Settlement Scheme seems to be waning.

Previously, a reason as basic as not knowing you needed to apply was deemed an acceptable excuse for applying for Pre-Settled and Settled Status.

In contrast, to submit a late application for a Surinder Singh family permit, you will need to show that you had a ‘valid reason’ for missing the deadline.

The most recent Home Office guidance (updated 6 days before the Surinder Singh deadline) provides examples of ‘valid reasons’ which include:

• a serious medical condition or significant medical treatment;
• allowing a child to finish a term of school before returning to the UK;
• completing a period of work or study before moving to the UK;
• or the more general ‘compelling practical and compassionate reasons’.

How strictly the Home Office will apply the consideration of ‘valid reasons’ remains to be seen, but the guidance suggests that the Home Office is clamping down on limitless late applications and moving back towards the type of rules they would apply to other visa routes outwith the EU Settlement Scheme.

Waiting (and waiting) for a decision

Applicants who submitted an application under the Surinder Singh route before the deadline have seen very significant delays in their applications being decided, with decisions not being issued for six months or longer.

The Home Office seems to be taking a notably more sceptical view of these applications, in stark contrast to their promise to ‘look for reasons to grant’ EU applications in the aftermath of Brexit.

As above, one of the rules of a Surinder Singh application was that the applicant and their British sponsor ought to be in the UK by 29 March 2022.

Accordingly, many applicants made sure their affairs were in order, to be ready to move shortly after submitting their applications, only to be left in stressful limbo for months on end as they waited to find out if they would be allowed to move to the UK after all.

Anyone submitting an application after the March 2022 deadline is unlikely to fare any better and, in fact, will see even longer delays as their case starts at the bottom of the pile and resources have been, understandably, diverted towards processing applications for Ukrainian nationals seeking leave to enter the UK.

The deadline has passed – can I still come to the UK after 29 March 2022?

Yes, the Home Office guidance confirms that an EU national who submitted an application for an EU Family Permit before the deadline, can still enter the UK after the deadline and that a delay in receiving their decision will be considered a valid reason for being late.

If your late application is accepted and subsequently granted, you will also be allowed to enter on your family permit.

I’ve made it into the country, what do I do next?

An EU Family Permit is only a short-term grant of leave to enter the UK. It is vital that all family members entering the UK on a Surinder Singh family permit apply to switch onto Pre-Settled Status within three months of arriving in the UK.

This application is usually done using the Home Office’s smartphone app and providing biometrics a second time should not be required.

Pre-Settled Status will be granted for a period of five years, following which the applicant can switch to Settled Status and therefore apply for British citizenship if they want to.

Anyone still hoping to submit an application for an EU Family Permit should seek urgent legal advice with a view to submitting an application as quickly as possible.

A failed application may attract the right to an administrative review and/or an appeal to the First-tier Tribunal, but legal representation in the early stages of the application may avoid subsequent delays and distressing uncertainty.

By Burness Paull LLP, Scotland, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact ukscotland@transatlanticlaw.com

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