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Surinder Singh is it too late to start?

Use this section for queries concerning applications on any of the EEA series of forms, and also for applications for EEA Family Permits.

Moderators: Casa, JAJ, ca.funke, Amber, Zimba, vinny, Obie, EUsmileWEallsmile, batleykhan, geriatrix, John, ChetanOjha, archigabe, push

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mattp73
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Surinder Singh is it too late to start?

Post by mattp73 » Fri Apr 24, 2020 4:04 pm

I’m looking for some advice and options please.
I’m a UK citizen married to a non EEA spouse (Filipino) we applied for a UK spouse visa back in 2017 and managed after 9 months (even though paying the £500 express decision fee) to have it granted. My wife joined me in the UK where we lived for a year. We then decided we would move to the Philippines so she could care for her aging relatives. We have bought land and built a house here. Due to changes in circumstances we are looking at either moving back to the UK or possibly Spain.
Obviously we would need to start again with the UK visa as being out of the UK for that length of time breaks the T&C’s of the visa hence not being able to apply for the second FLR visa. We can apply under the savings category for financial requirements, but it’s the length of time it takes to apply and have no idea of time scale or if they would give her another visa.
Our other option is to move to Spain as she can obviously join me as my spouse as long as we do this before December 2020, please correct me if I’m wrong. If we chose this route could we return in the future along the Surinder Singh route? Would we need to return before June 2021? If we were living genuinely in Spain after Brexit is done would the route now be closed?
Sorry so many questions I’m just trying to get my head around the whole political system that seems to keep changing the goal post.
Thanks in advance

Jackson2004
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Re: Surinder Singh is it too late to start?

Post by Jackson2004 » Fri Apr 24, 2020 5:43 pm

Whilst the UK is going through the transition period you technically enjoy the same rights as you did when you were an EU citizen, this means that it *should* still technically be possible obtain an EU treaty right visa as applications are supposed to be processed within 6 weeks.

Home office guidance suggests that the UK is going to allow repatriation for up-to 2 years after the end of the transition period. If this policy is implemented as expected then you will be able to return to the UK with your spouse. This is assuming that the UK home office do not see your time in the host country as anything less than genuine residency, which might involve looking into your history in the EU host country. Though recently this part of the decision making process was deemed unlawful, EU legislation will no longer provide the necessary protections to ensure that your rights are respected. If you were granted an EU visa it would be recommended to remain in the country for as long as possible whilst still allowing you a little time to go through the application process in the UK (at least 1 year, preferably 1.5), before applying for permission to return.

Whilst it is still technically possible it will be challenging. Whilst EUTR applications are supposed to be expedited, and not take more than 6 weeks, in reality many applications do take a lot longer, and most countries have closed there immigration offices due to COVID. Even if you did get a decision soon enough unless you have a clear-cut case the decision maker could easily reject an application on spurious grounds, and you are unlikely to have time to reapply. It would be important to get all your documents in order so you have a very strong initial case.

I would recommend at least

- Proof of employment in the host country (employment letter and payslips), or sufficient means to sustain yourselves (health insurance, bank statements etc.)
- Proof of accommodation in the destination country (utilities + tenancy)
- Apostled marriage certificate and proof of identity (passports)

Ignore EU treaty right guidance that suggests anything less than the documents above. Without the above there is a good possibility the decision maker will reject your case (this happened to me).

You would have the best chance of succeeding by avoiding Republic of Ireland (who are known to reject the majority of initial EUTR visa applications coming from UK citizens), and choosing a country where you have the highest chance of success. Try to find a country that has not closed its immigration offices / borders due to Covid.

The fact that you have previously enjoyed a successful UK visa application should work in your favor, certainly a failed application would probably hinder your chances.

I'm not sure I can recommend this approach, because I have a feeling it could one day be used against you, but you may or may not have better success in getting a residency permit soon enough if you can somehow get her into the host country without an EUTR visa. As long as she is in an EU country with you she enjoys the same right of residence regardless as to how she got there, but an EUTR application could take a lot longer to process than a visitor visa. As long as the visa is from Europe, the Visa does not have to come from the same country where you intend to end up and some countries are quicker at processing applications than others.

Whilst you don't have much it could still be possible, especially if the UK decide to extend the transition period due to COVID. If you do attempt this route I wish you all the best and please let me know how it works out.

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Re: Surinder Singh is it too late to start?

Post by Obie » Fri Apr 24, 2020 7:00 pm

A British citizen can no longer do Surinder Singh after the 31-01-2020.
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mattp73
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Re: Surinder Singh is it too late to start?

Post by mattp73 » Fri Apr 24, 2020 10:57 pm

Jackson2004 wrote:
Fri Apr 24, 2020 5:43 pm
Whilst the UK is going through the transition period you technically enjoy the same rights as you did when you were an EU citizen, this means that it *should* still technically be possible obtain an EU treaty right visa as applications are supposed to be processed within 6 weeks.

Home office guidance suggests that the UK is going to allow repatriation for up-to 2 years after the end of the transition period. If this policy is implemented as expected then you will be able to return to the UK with your spouse. This is assuming that the UK home office do not see your time in the host country as anything less than genuine residency, which might involve looking into your history in the EU host country. Though recently this part of the decision making process was deemed unlawful, EU legislation will no longer provide the necessary protections to ensure that your rights are respected. If you were granted an EU visa it would be recommended to remain in the country for as long as possible whilst still allowing you a little time to go through the application process in the UK (at least 1 year, preferably 1.5), before applying for permission to return.

Whilst it is still technically possible it will be challenging. Whilst EUTR applications are supposed to be expedited, and not take more than 6 weeks, in reality many applications do take a lot longer, and most countries have closed there immigration offices due to COVID. Even if you did get a decision soon enough unless you have a clear-cut case the decision maker could easily reject an application on spurious grounds, and you are unlikely to have time to reapply. It would be important to get all your documents in order so you have a very strong initial case.

I would recommend at least

- Proof of employment in the host country (employment letter and payslips), or sufficient means to sustain yourselves (health insurance, bank statements etc.)
- Proof of accommodation in the destination country (utilities + tenancy)
- Apostled marriage certificate and proof of identity (passports)

Ignore EU treaty right guidance that suggests anything less than the documents above. Without the above there is a good possibility the decision maker will reject your case (this happened to me).

You would have the best chance of succeeding by avoiding Republic of Ireland (who are known to reject the majority of initial EUTR visa applications coming from UK citizens), and choosing a country where you have the highest chance of success. Try to find a country that has not closed its immigration offices / borders due to Covid.

The fact that you have previously enjoyed a successful UK visa application should work in your favor, certainly a failed application would probably hinder your chances.

I'm not sure I can recommend this approach, because I have a feeling it could one day be used against you, but you may or may not have better success in getting a residency permit soon enough if you can somehow get her into the host country without an EUTR visa. As long as she is in an EU country with you she enjoys the same right of residence regardless as to how she got there, but an EUTR application could take a lot longer to process than a visitor visa. As long as the visa is from Europe, the Visa does not have to come from the same country where you intend to end up and some countries are quicker at processing applications than others.

Whilst you don't have much it could still be possible, especially if the UK decide to extend the transition period due to COVID. If you do attempt this route I wish you all the best and please let me know how it works out.
Jackson thank you so much for taking the time to reply it is very much appreciated.
If we went to Spain it would be with a view to stay, it would just be nice to have the option to return should we decide or need to. So if we applied for a visit visa to another country, say Malta we could fly to Spain on this visa ok?
Obie wrote:
Fri Apr 24, 2020 7:00 pm
A British citizen can no longer do Surinder Singh after the 31-01-2020.
What makes you say that? As a UK citizen I still have the right to travel to the EU and exercise my freedom of movement up until the end of December this year if I’m not very much mistaken.

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Re: Surinder Singh is it too late to start?

Post by secret.simon » Sat Apr 25, 2020 6:27 am

mattp73 wrote:
Fri Apr 24, 2020 10:57 pm
Obie wrote:
Fri Apr 24, 2020 7:00 pm
A British citizen can no longer do Surinder Singh after the 31-01-2020.
What makes you say that? As a UK citizen I still have the right to travel to the EU and exercise my freedom of movement up until the end of December this year if I’m not very much mistaken.
I am not a lawyer, any my interpretation of the law may therefore not be accurate or correct, but I think I can hazard a guess at what @Obie means.

The Surinder Singh route is based on an EEA citizen exercising rights under the EU Treaties in another EEA member-state and then returning to his home EEA member-state.

The UK exited the EU Treaties on 31st January 2020. Therefore, in that legal sense, British citizens are no longer EEA citizens and they can't exercise rights under the EU Treaties.

The Withdrawal Agreement between the UK and the EU gives British and EU citizens some rights to move to each other till the end of the year. But I'm not sure it can be counted as "freedom of movement" under the EU Treaties.

Therefore, it is possible to argue that the Surinder Singh route would not apply to family members of a British citizen who had not exercised their Treaty Rights in some form in another EEA member-state before 31st January 2020.

In simple terms, I suspect that for the Surinder Singh route to work, the British citizen and family member should have started exercising treaty rights together in another EEA member-state before 31st January 2020 and then return to the UK before the specified period (which ranges from the end of 2020 to 2022, based on the type of relationship between the British citizen and the family member).
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.

mattp73
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Re: Surinder Singh is it too late to start?

Post by mattp73 » Sat Apr 25, 2020 9:27 am

I do understand that things have changed since Jan 31 but not completely.
This is the current situation as I understand it.
United Kingdom's departure form the EU
At 11:00 pm on 31 January 2020, the United Kingdom left the European Union, and entered a transition period. During this transition period, the UK will continue to be part of the common market, which means that free movement of people for EU citizens in the UK, and for UK citizens in the EU will continue until the end of 2020. Negotiations between the UK and the EU to decide on what will happen at the end of the transition period will take place throughout 2020.

So from what I understand from this nothing really changes until end of December....eu citizens can still come and live here and Uk citizens can still move to another EU state. So if we can still exercise movement rights until December then surely Surinder Singh is still valid.

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Re: Surinder Singh is it too late to start?

Post by Jackson2004 » Sat Apr 25, 2020 9:53 am

I'm no lawyer either, but my current interpretation of this that EU treaty rights are still valid, certainly countries are still processing EUTR applications, but no one knows exactly how they will be respected by the UK and other EU countries post departure.

Countries may set the benchmark to remain as anyone who was there at the end of the transition period, or anyone who was in the country before Britains formal withdrawal. Just as the UK can set the benchmark on which you can return. EU law will no longer apply.

For logistical reasons and in the interest of fairness I would assume anyone that is there at the end of the transition period will be allowed to remain. Otherwise couples could potentially be uprooted and left without a home they can share through no fault of there own.

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Re: Surinder Singh is it too late to start?

Post by Obie » Sat Apr 25, 2020 11:00 am

secret.simon wrote:
Sat Apr 25, 2020 6:27 am
mattp73 wrote:
Fri Apr 24, 2020 10:57 pm
Obie wrote:
Fri Apr 24, 2020 7:00 pm
A British citizen can no longer do Surinder Singh after the 31-01-2020.
What makes you say that? As a UK citizen I still have the right to travel to the EU and exercise my freedom of movement up until the end of December this year if I’m not very much mistaken.
I am not a lawyer, any my interpretation of the law may therefore not be accurate or correct, but I think I can hazard a guess at what @Obie means.

The Surinder Singh route is based on an EEA citizen exercising rights under the EU Treaties in another EEA member-state and then returning to his home EEA member-state.

The UK exited the EU Treaties on 31st January 2020. Therefore, in that legal sense, British citizens are no longer EEA citizens and they can't exercise rights under the EU Treaties.

The Withdrawal Agreement between the UK and the EU gives British and EU citizens some rights to move to each other till the end of the year. But I'm not sure it can be counted as "freedom of movement" under the EU Treaties.

Therefore, it is possible to argue that the Surinder Singh route would not apply to family members of a British citizen who had not exercised their Treaty Rights in some form in another EEA member-state before 31st January 2020.

In simple terms, I suspect that for the Surinder Singh route to work, the British citizen and family member should have started exercising treaty rights together in another EEA member-state before 31st January 2020 and then return to the UK before the specified period (which ranges from the end of 2020 to 2022, based on the type of relationship between the British citizen and the family member).
Pretty much. At least that is what the government says anyway in their policy document that was in place until March 2020.

I understand that the No deal aspect has been removed, and not relevant, but as far as Surinder Singh is concerned, it remain good.

https://www.gov.uk/government/publicati ... ter-brexit
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mattp73
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Re: Surinder Singh is it too late to start?

Post by mattp73 » Sat Apr 25, 2020 11:12 am

It kind of makes sense to have it still in place if both UK and EU citizens can still move freely at the moment otherwise the whole as stated people would be stranded abroad. Not sure how travel to the EU will be like after brexit is done...a visa of some sort I assume but I would imagine same for an EU citizen travelling to the UK for a visit...does anyone know yet...I imagine maybe a landing card similar to when you fly to the US. 30 or 60 day stamp in your passport???

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Re: Surinder Singh is it too late to start?

Post by Zerubbabel » Sat Apr 25, 2020 11:58 am

Hello

There is another detail that you need to consider. I know that France, and possibly other EU countries, will stop delivering EEA cards to UK passport holders from this Summer already. This is just to avoid delivering cards that would expire shortly once received.

UK citizens would receive "Withdrawal Agreement" cards. These are under local laws. It's similar to the EU Settlement Scheme run in the UK that provides EU citizens with cards that are not under EEA rules.

I am not sure Surinder Singh would work with a Withdrawal Agreement card delivered by an EU country.

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Re: Surinder Singh is it too late to start?

Post by secret.simon » Sat Apr 25, 2020 2:31 pm

mattp73 wrote:
Sat Apr 25, 2020 11:12 am
if both UK and EU citizens can still move freely at the moment otherwise the whole as stated people would be stranded abroad.
The Withdrawal Agreement provides that UK citizens can still move to EEA countries and EEA citizens can still move to the UK with their family members till the end of the year.

However, that is not longer because of EU treaty rights, which were based on a common European citizenship, but because of rights under the Withdrawal Agreement. The Withdrawal Agreement does not provide for a common citizenship and therefore the equivalent of the Surinder Singh route does not exist.

That may not engage the Surinder Singh route, which was based around EEA citizens moving around with their family members across the EEA without hinderance. UK citizens are no longer EEA citizens, although having similar rights under a separate agreement (the Withdrawal Agreement).

Also keep in mind that the UK citizen will effectively be land-locked into the country s/he is resident in on 31st December 2020 (or whenever the end of the transition period occurs). After that date, the UK citizen will no longer be able to move about freely within the EU, but will be a temporary/permanent resident of whatever country he resided in (as a grandfathered-in resident citizen of a third country).

To regain freedom of movement, the UK citizen would have to acquire the citizenship of the relevant EEA member-state. And nationality law is the preserve of Member-states and there is no standardisation of that.

As an example, I had recently met an Indian citizen resident in Spain for 20 odd years, who is still ineligible for Spanish citizenship. On the other hand, your wife may have a fast track available to her for Spanish citizenship, as the citizen of a former Spanish colony.
mattp73 wrote:
Sat Apr 25, 2020 11:12 am
Not sure how travel to the EU will be like after brexit is done...a visa of some sort I assume but I would imagine same for an EU citizen travelling to the UK for a visit...does anyone know yet...I imagine maybe a landing card similar to when you fly to the US. 30 or 60 day stamp in your passport???
The UK will likely (but not certainly) be added to the list of countries whose nationals can apply for ETIAS, the EU equivalent to the US ESTA and the Canadian ETA. Canada, Australia and Hong Kong are already on that list.

So UK citizens will likely be able to fly in and out of the EU as before, just not with automatic rights as citizens, but as tourists. Similarly, you may not have the right to be accompanied by a non-EEA spouse.

EEA citizens will likely continue to be able to enter the UK using either the ePassport Gates or the usual immigration counters and be stamped in as tourists on the spot (i.e. they will be non-visa nationals). Again, that will be based on their passport and will not extend to their visa-national family members.
Jackson2004 wrote:
Sat Apr 25, 2020 9:53 am
Otherwise couples could potentially be uprooted and left without a home they can share through no fault of there own.
I have no idea of how much you have dealt with the Home Office, but the Home Office takes a very severe view of mixed nationality families. It generally takes the view that while UK citizens have a right to reside in the UK, their family members don't have an automatic right. And that UK citizens are free to leave the UK if they want to live with a family member that can't get a visa.

So, for instance, a British citizen who wants to sponsor a non-EEA spouse has to demonstrate an annual earning of at least £18,600 or easily accessible savings (with proof of source of funds) of £62,500. About 30-40% of the British population does not earn that much. Yet, the UKSC ruled in the government's favour on the Minimum Income Requirement.

So, don't hold your breath.
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.

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Re: Surinder Singh is it too late to start?

Post by Obie » Sat Apr 25, 2020 2:49 pm

The difficulties is that the withdrawal agreement just like the Directive made no explicit or maybe even an implicit provision for Surinder Singh.

Reliance is therefore normally placed on the government policy.

As Secret Simon correctly stated, the foundation of Surinder singh originates from the Treaty and the provision on Union Citizen.

A United Kingdom national is no longer a Union Citizen, therefore he cannot argue the treaty should be available to him or her upon her return or else she will be hindered from exercising this right.
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Re: Surinder Singh is it too late to start?

Post by mkhan2525 » Fri May 08, 2020 12:22 am

According to EU Rights Clinic Surinder Singh rights are also tied to the single market through the EEA agreement and we are in a transition period similar to Norway agreement therefore it could be argued that Surinder Singh still applies?
If the UK was to leave the EU would this close the Surinder Singh route?

Not necessarily. This would depend on the terms of the UK’s exit that would need to be negotiated under Article 50 of the Treaty on European Union as inserted by the Lisbon Treaty. If the United Kingdom was to leave the EU but agree to join the European Economic Area (currently the EU states plus Iceland, Liechtenstein and Norway) in order to continue its participation in the Single Market, the Surinder Singh case would continue to have effect in the UK by virtue of Article 28 of the EEA Agreement. If the United Kingdom was to negotiate a stand-alone Agreement on the Free Movement of Persons like Switzerland has negotiated with the EU, then this case law would continue to have effect for the purposes of interpreting any such stand-alone agreement.
https://blogs.kent.ac.uk/eu-rights-clin ... g-the-law/

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Re: Surinder Singh is it too late to start?

Post by msmoby_ru » Sun Jul 12, 2020 11:15 am

Obie wrote:
Sat Apr 25, 2020 2:49 pm
As Secret Simon correctly stated, the foundation of Surinder singh originates from the Treaty and the provision on Union Citizen.

A United Kingdom national is no longer a Union Citizen, therefore he cannot argue the treaty should be available to him or her upon her return or else she will be hindered from exercising this right.
I have used the Surinder Singh route route, just before the lockdown ) to facilitate tipping up at the UK border in FR with my non-EU wife and no UK visa ..just lots of docs / evidence and 10 hours later and being questioned separately, we were in ...

I hold joint UK and IRL citizenships and am resident in a third EU state. ( wifey didn't have her proof of residence , yet )

Surinder Singh route can be used to facilitate entry ( provided all your ducks are in order ) right up to transition ending

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Re: Surinder Singh is it too late to start?

Post by TODMATT » Tue Oct 13, 2020 10:55 am

Obie wrote:
Sat Apr 25, 2020 11:00 am
secret.simon wrote:
Sat Apr 25, 2020 6:27 am
mattp73 wrote:
Fri Apr 24, 2020 10:57 pm
Obie wrote:
Fri Apr 24, 2020 7:00 pm
A British citizen can no longer do Surinder Singh after the 31-01-2020.
What makes you say that? As a UK citizen I still have the right to travel to the EU and exercise my freedom of movement up until the end of December this year if I’m not very much mistaken.
I am not a lawyer, any my interpretation of the law may therefore not be accurate or correct, but I think I can hazard a guess at what @Obie means.

The Surinder Singh route is based on an EEA citizen exercising rights under the EU Treaties in another EEA member-state and then returning to his home EEA member-state.

The UK exited the EU Treaties on 31st January 2020. Therefore, in that legal sense, British citizens are no longer EEA citizens and they can't exercise rights under the EU Treaties.

The Withdrawal Agreement between the UK and the EU gives British and EU citizens some rights to move to each other till the end of the year. But I'm not sure it can be counted as "freedom of movement" under the EU Treaties.

Therefore, it is possible to argue that the Surinder Singh route would not apply to family members of a British citizen who had not exercised their Treaty Rights in some form in another EEA member-state before 31st January 2020.

In simple terms, I suspect that for the Surinder Singh route to work, the British citizen and family member should have started exercising treaty rights together in another EEA member-state before 31st January 2020 and then return to the UK before the specified period (which ranges from the end of 2020 to 2022, based on the type of relationship between the British citizen and the family member).
Pretty much. At least that is what the government says anyway in their policy document that was in place until March 2020.

I understand that the No deal aspect has been removed, and not relevant, but as far as Surinder Singh is concerned, it remain good.

https://www.gov.uk/government/publicati ... ter-brexit
Hi Obie, Secretsimon,

I was just reading the above post and I found it very interesting but upon clicking on the link, it says below

"This policy paper was withdrawn on 13 March 2020
Find out how to continue living in the UK if you’re an EU, EEA or Swiss citizen."



https://www.gov.uk/government/publicati ... ter-brexit

Can you confirm if the above guidance still stand?


Thanks alot
My opinions should not be constituted as an immigration or legal advice.

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Re: Surinder Singh is it too late to start?

Post by ryuzaki » Tue Oct 13, 2020 3:04 pm

My advice is leave and don't come back. The UK is going down the drain with brexit and increasingly bad immigration rules. You will probably find you like Spain or wherever you go more anyway.

Consider Ireland too, thanks to the border you may have better rights over there, although re-unification looks inevitable now.

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Re: Surinder Singh is it too late to start?

Post by Zerubbabel » Tue Oct 13, 2020 4:10 pm

ryuzaki wrote:
Tue Oct 13, 2020 3:04 pm
My advice is leave and don't come back. The UK is going down the drain with brexit and increasingly bad immigration rules. You will probably find you like Spain or wherever you go more anyway.

Consider Ireland too, thanks to the border you may have better rights over there, although re-unification looks inevitable now.
+1 I am leaving the UK soon. For a few months to start but I may never come back if they want to destroy the country over Covid and Brexit.

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Re: Surinder Singh is it too late to start?

Post by ryuzaki » Sat Oct 17, 2020 8:51 am

I don't think this is right. We are currently pursuing Surinder Singh route route for a family member with legal assistance and have been advised that it is still possible.

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Re: Surinder Singh is it too late to start?

Post by Zerubbabel » Sat Oct 17, 2020 1:22 pm

ryuzaki wrote:
Sat Oct 17, 2020 8:51 am
I don't think this is right. We are currently pursuing Surinder Singh route route for a family member with legal assistance and have been advised that it is still possible.
Hope it works for you but I am not a great believer in this route.

It means leaving now. Going to an EEA country. Apply asap under EEA rules for your family member. Bring the family member. Count to 100, take a flight back to the UK. Claim Surinder Singh...

I don't believe it's doable but if you feel you have window of opportunity, please try and let us know. I would love to be proven wrong on this one.

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