Nikaela Rusk, legal caseworker at Brophy Solicitors, examines the impact of the UK’s recent EU negotiations on the “Surinder Singh” immigration loophole.

In conjunction with the introduction of The European Communities (Free Movement of Persons) Regulations 2015 in Ireland which makes changes to the assessment of qualified and permitted family members of an EU citizen, an article this week in the Guardian UK entitled “Draft EU rules could tighten migration loophole for foreign-born spouses” proposes that EU law is set to tighten UK immigration laws in respect of foreign national partners joining an EU citizen.

In the UK, a well known loophole exists called the “Surinder Singh” route gives UK residence rights to Non-EEA spouses of UK citizens. As stated in the Guardian:

“Hundreds of British citizens with foreign-born partners who depend on an obscure legal loophole to allow them to live together in the UK could see their chances of family life made even tougher by the EU renegotiation, campaigners and lawyers have warned.”

The loophole which currently exists under UK immigration law, known as the “Surinder Singh” route facilitates UK citizens and their foreign spouse to bypass UK immigration laws where they do not meet the recognised criteria to allow a foreign national to join their UK spouse.

The “Surinder Singh” route operates when a UK citizen resides temporarily and exercises their EUTR in another EU country with their foreign partner, most commonly Ireland. When they return to the UK, the non-EEA national partner can apply for an EEA family permit to reside under EC Law. The couple must reside in another EU country for at least three months, but more often six to twelve months.

As outlined in the Guardian article, “the draft deal from the European commission, aimed at keeping Britain in the EU, includes a paragraph that seems intent on shutting down the loophole, agreeing “to exclude, from the scope of free movement rights, third-country nationals who had no prior lawful residence in a member state before marrying a union citizen or who marry a union citizen only after the union citizen has established residence in the host member state”.

The draft deal also says member states should be able to use the “abuse of free movement rights” as a reason to deny a visa, if the couple “had the purpose of evading the application of national immigration rules”.

Our office is working on many cases in which British citizens are moving to Ireland in order to exercise their EU Treaty Rights, and bringing their Non EEA family members with them. Any changes made to the UK system will not affect the on going EU Treaty Rights of British citizens in Ireland, which derives directly from the EU Treaty Rights law.