Instructions given to caseworkers regarding Surinder Singh criteria

Mrs Richens made this Freedom of Information request to UK Border Agency

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Dear UK Border Agency,

I would like to know what instructions are given to caseworkers regarding applications made according to the Surinder Singh ruling. Specifically to the EEA sponsor being a UK national, and after having exercised treaty rights by working in a member state, then returning to live in the UK with the spouse (Non EEA national) and not exercising treaty rights in the UK.

To my understanding caseworkers received a notification of an amendment to Regulation 9 of the EEA Regulations on the 20th May 2010, which stated that the UK national who is the EEA sponsor has only to show evidence of exercising a treaty right before returning to the UK and does not need to show evidence of exercising treaty rights in the UK.

Please confirm that this information is correct as the caseworkers at the UK Border Agency that I have had correspondence with do not appear to have knowledge of this ruling, although the Immigration Inquiery Bureau do seem to be fully aware of this ruling themselves.

Yours faithfully,

Mrs Richens

European Operational Policy Enquiries, UK Border Agency

Dear Mrs. Richens,

Thank you for your email dated 20 August regarding the instructions given to caseworkers in dealing with applications made under regulation 9 of the Immigration (European Economic Area) Regulations 2006 ("the Regulations"). Your email has been treated as a routine enquiry and not under the Freedom of Information Act 2000.

I can confirm that guidance was issued to European casework teams on 19 May 2011 in European Operational Policy Notice 05/2011. This notice confirms that UK nationals who have exercised Treaty rights as a worker or self-employed person in another EEA member state are not required to exercise Treaty rights on their return to the UK in order to be treated as an EEA national for the purposes of regulation 9.

I trust that this response answers your enquiry satisfactorily.

Yours sincerely,

European Operational Policy Team
UK Border Agency.

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Mrs Richens left an annotation ()

I asked for this information because I have had great difficulty with applications for my husbands Residence Card over the last year and a half.

He was originally granted an EEA Family Permit via the UK Border Agency in Madrid, Spain for 6 months. This was given in accordance to the Surinder Singh ruling, as I am a British citizen, who was living and working in a member state thus exercising an economic treaty right. We made the application showing proof of my residency in Spain, work history and proof that I had been residing with my husband.

I was also told quite cleary by the Immigration Inquiry Bureau that as a British citizen I had only to show evidence of exercising a treaty right before returning to the UK, and not once I had arrived here. After our arrival to the Uk with our baby son we made the application for his Residence Card. The first application was refused with the reason being that I, my husbands EEA member sponsor, had not shown evidence of exercising treaty rights here in the UK.

I tried in vain to telephone them to tell them that I did not need to show evidence of exercising treaty rights here in the UK. They gave me a fax number to send them a letter explaining my argument. I had no response. I tried phoning them again but had great difficulty getting them to answer the phone. An automated message comes on saying that there is nobody to answer the call and then was abruptly cut off. This happened for several days. I decided to make another application.

This was also refused because we had not shown any evidence of myself exercising a treaty right in a member state. I telephoned the immigration bureau again and this time had more luck and my call was answered. The lady who answered explained that I had to provide again, all of the original evidence that had been presented in Spain, and that it had to be translated into English. Apparently there is no centralised system at the UK Border Agency to show that this evidence had already been verified in Spain, and the application form does not state anywhere that this evidence needed to be presented again.

So we duly had all of the evidence of my residency in Spain, my work history in Spain and evidence of residing with my husband translated into English. (Costing £500!) We made another application with this evidence. In the meantime I had started a part-time job and to be on the safe side I later also sent a payslip as I was worried about another rejection of the application.

After nearly four months we finally received my husbands Residence Card. But with it a letter explaining that he only has rights to stay here if I (his sponsor) continue to exercise treaty rights here in the UK. Again the caseworker does not appear to understand that I do not need to be exercising treaty rights on my arrival in the UK, only before I return.

I intend to write to them with a copy of this information that I have requested, so that they can make any necessary changes to my husbands rights to reside. I will update with any further contact that I have with the UK Border Agency regarding this matter.

Mrs Richens

Robert Simpson left an annotation ()

Would have been nice if they had included the document they mentioned. It is

You should complain loudly. Both to UKBA, and to your MP.

Robert Simpson left an annotation ()

Note that your husband's rights to be and remain in the UK come solely from his relationship with you (since you worked in Spain).

Even if UKBA issues the wrong thing, that does not change his status at all.

James left an annotation ()

Hi Mrs Richens
I'm sorry to hear about your experience which I am sure must have been very frustrating.
Myself and my girlfriend are currently looking to go for surinder singh in either Portugal or Ireland and I wondered whether you could tell me a little bit about your route... how long you stayed in Spain? Did you rent a property? If so for how long?
Any other info you think could help us in this situation of not knowing would be very much appreciated! :)


James & Livia