Surinder -Singh route ?

Cookie1295 · Post by **Cookie1295** » Mon Nov 12, 2018 4:09 pm

Hello all, I need your advice on how to proceed..., I've been told previously my best step towards legitimacy would be Surendra-Singh route but again I'm more than willing to listen to any advice.

My situation is that I am a Canadian citizen, currently living in England with my English wife of 18 years. We both moved here after a number of years in Switzerland working for the UN( her 20, me 12 ) where we lived together and worked. The problem/concern is that I have now lived here in England 6 years on visa overstay ( never leaving England for more than two weeks at a time during those years ) I am retired on a private pension.

Do you think after this delay in filing I would be considered ?

NikiGio · Post by **NikiGio** » Tue Nov 13, 2018 11:10 am

How have you been entering the country during these 6 years?

The Visa overstay should be irrelevant, given you have automatic rights to reside and work as the spouse of an EU citizen.

You should apply.

If you get turned down for whatever reason, you can always re-apply for Settled Status in March.

Cookie1295 · Post by **Cookie1295** » Tue Nov 13, 2018 6:03 pm

Thanks for the info, getting back in was a simple as walking thru customs ( and explaining I was visiting )

Casa · Post by **Casa** » Tue Nov 13, 2018 6:16 pm

How has your wife met the conditions for 'exercising her Treaty rights' in the UK during the 6 year period?

Why didn't you apply for a Residence permit when you both arrived in the UK

NikiGio · Post by **NikiGio** » Tue Nov 13, 2018 6:55 pm

Casa is right - correction:

"The Visa overstay should be irrelevant - you have automatic rights to reside and work, provided you are the spouse of an EU citizen who was exercising treaty rights for five years"

Cookie1295 · Post by **Cookie1295** » Wed Nov 14, 2018 9:09 am

“Exercising her treaty rights”

Can you define that ?

CR001 · Post by **CR001** » Wed Nov 14, 2018 9:11 am

Cookie1295 wrote: ↑
Wed Nov 14, 2018 9:09 am
“Exercising her treaty rights”

Can you define that ?

Was she working, a student, unemployed, self sufficient, etc. What has she been doing in the UK since she returned from the EU member state?

Cookie1295 · Post by **Cookie1295** » Wed Nov 14, 2018 10:05 am

Ok thanks for that — since returning we are both retired on private pension

newbieholland · Post by **newbieholland** » Wed Nov 14, 2018 10:07 am

CR001 wrote: ↑
Wed Nov 14, 2018 9:11 am

Cookie1295 wrote: ↑
Wed Nov 14, 2018 9:09 am
“Exercising her treaty rights”

Can you define that ?
Was she working, a student, unemployed, self sufficient, etc. What has she been doing in the UK since she returned from the EU member state?

Does this mean people have officially accepted that EIND is not applicable to SS route anymore? Has there been any ruling on SS PR applications to discard EIND?

NikiGio · Post by **NikiGio** » Wed Nov 14, 2018 6:15 pm

Cookie1295 wrote: ↑
Wed Nov 14, 2018 10:05 am
Ok thanks for that — since returning we are both retired on private pension

Retired people who receive a pension from their home country can be considered as self-sufficient if they have CSI or form E121/S1, which is the equivalent of EHIC for pensioners.

If you don't have the above, you're better off waiting to apply for Settled Status in March.

Casa · Post by **Casa** » Wed Nov 14, 2018 6:21 pm

There may be an issue with SS regarding your multiple entries as a visitor during the qualifying period.

NikiGio · Post by **NikiGio** » Wed Nov 14, 2018 7:08 pm

Sounds like it's a good idea for you to seek formal advice.

Cookie1295 · Post by **Cookie1295** » Thu Nov 15, 2018 4:02 pm

Yes formal advice is sounding better and better

PS - neither of our pensions originate in our home countries but from the U.N.

NikiGio · Post by **NikiGio** » Thu Nov 15, 2018 4:05 pm

The Good Law Project, UKCEN and the Aire Centre can direct you to good immigration lawyers with the right specialism - probably good to seek advice sooner rather than later, given uncertainties over Surinder Singh after March.

mufc69 · Post by **mufc69** » Thu Nov 15, 2018 8:31 pm

is Surinder Singh not included in the EU settlement scheme? I thought it was..

Casa · Post by **Casa** » Thu Nov 15, 2018 8:37 pm

I still feel the issue here will be why you declared yourself as a visitor to the UK on entry, instead of as a family member under Surinder Singh.

Was your passport stamped by the IO at the port of entry as a visitor?

secret.simon · Post by **secret.simon** » Thu Nov 15, 2018 9:50 pm

mufc69 wrote: ↑
Thu Nov 15, 2018 8:31 pm
is Surinder Singh not included in the EU settlement scheme? I thought it was..

No, it's most likely not. The UK-EU draft agreement covers "Union citizens who exercised their right to reside in the United Kingdom in accordance with Union law before the end of the transition period and continue to reside there thereafter" and their family members. It heaves very closely to the language of the Directive. As far as I can see, none of the judicially provided routes (SS, Chen, Zambrano) are protected.

See Pages 8/9 and from Page 20 onwards of theDraft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community.

Opinion
The pre-Brexit ECJ case law will be imported into UK law (to maintain continuity), but can subsequently be amended by Parliament. Given that people on SS and Zambrano have alternatives under the UK Immigration Rules (FLR(M) and FLR(FP)), it is not impossible that only Chen survives. Even that may be subsumed into FLR(FP).

The UK government may offer to allow people on these routes to remain in the UK. But that will be a grant of the UK authorities, bot a requirement of the treaty.

Then again, given how close we seen to be to a no-deal situation, I would not be optimistic of the Deal going through, though given the circumstances, I feel that it is the best deal that we can get in the circumstances.

secret.simon · Post by **secret.simon** » Thu Nov 15, 2018 9:57 pm

Casa wrote: ↑
Thu Nov 15, 2018 8:37 pm
I still feel the issue here will be why you declared yourself as a visitor to the UK on entry, instead of as a family member under Surinder Singh.

Was your passport stamped by the IO at the port of entry as a visitor?

To the OP, to elaborate on Casa's point (and Casa, correct me if I am wrong), entering the UK as a visitor at the ports while then attempting to reside in the UK under the SS route may cause issues with any applications under UK law (such as naturalisation). That is because it would count as deception and entering the country under false pretences. You should have been upfront with the Border Force about exercising rights under ECJ case law from day one.

Casa · Post by **Casa** » Thu Nov 15, 2018 10:08 pm

secret.simon wrote: ↑
Thu Nov 15, 2018 9:57 pm

Casa wrote: ↑
Thu Nov 15, 2018 8:37 pm
I still feel the issue here will be why you declared yourself as a visitor to the UK on entry, instead of as a family member under Surinder Singh.

Was your passport stamped by the IO at the port of entry as a visitor?
To the OP, to elaborate on Casa's point (and Casa, correct me if I am wrong), entering the UK as a visitor at the ports while then attempting to reside in the UK under the SS route may cause issues with any applications under UK law (such as naturalisation). That is because it would count as deception and entering the country under false pretences. You should have been upfront with the Border Force about exercising rights under ECJ case law from day one.

I agree in that both claims can't be true. Either the declaration that the entries are as a genuine visitor or the claim to be residing in the UK under Surinder Singh must be false.

mufc69 · Post by **mufc69** » Thu Nov 15, 2018 10:09 pm

secret.simon wrote: ↑
Thu Nov 15, 2018 9:50 pm

mufc69 wrote: ↑
Thu Nov 15, 2018 8:31 pm
is Surinder Singh not included in the EU settlement scheme? I thought it was..
No, it's most likely not. The UK-EU draft agreement covers "Union citizens who exercised their right to reside in the United Kingdom in accordance with Union law before the end of the transition period and continue to reside there thereafter" and their family members. It heaves very closely to the language of the Directive. As far as I can see, none of the judicially provided routes (SS, Chen, Zambrano) are protected.

See Pages 8/9 and from Page 20 onwards of theDraft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community.

Opinion
The pre-Brexit ECJ case law will be imported into UK law (to maintain continuity), but can subsequently be amended by Parliament. Given that people on SS and Zambrano have alternatives under the UK Immigration Rules (FLR(M) and FLR(FP)), it is not impossible that only Chen survives. Even that may be subsumed into FLR(FP).

The UK government may offer to allow people on these routes to remain in the UK. But that will be a grant of the UK authorities, bot a requirement of the treaty.

Then again, given how close we seen to be to a no-deal situation, I would not be optimistic of the Deal going through, though given the circumstances, I feel that it is the best deal that we can get in the circumstances.

So what happens to people who have genuinely arrived in the UK under SS and will have acquired 5 years residence? they will be deported? my wife's residence card expires in May 2019 we have 2 children born in the UK, this is deeply worrying.

secret.simon · Post by **secret.simon** » Thu Nov 15, 2018 10:48 pm

mufc69 wrote: ↑
Thu Nov 15, 2018 10:09 pm
So what happens to people who have genuinely arrived in the UK under SS and will have acquired 5 years residence?

Most likely the UK government will grant them Leave To Remain under the UK Immigration Rules. However, it is not protected under the proposed Treaty, but based on the goodwill of the UK government.

NikiGio · Post by **NikiGio** » Fri Nov 16, 2018 8:14 am

secret.simon wrote: ↑
Thu Nov 15, 2018 9:57 pm

Casa wrote: ↑
Thu Nov 15, 2018 8:37 pm
I still feel the issue here will be why you declared yourself as a visitor to the UK on entry, instead of as a family member under Surinder Singh.

Was your passport stamped by the IO at the port of entry as a visitor?
To the OP, to elaborate on Casa's point (and Casa, correct me if I am wrong), entering the UK as a visitor at the ports while then attempting to reside in the UK under the SS route may cause issues with any applications under UK law (such as naturalisation). That is because it would count as deception and entering the country under false pretences. You should have been upfront with the Border Force about exercising rights under ECJ case law from day one.

So presumably that aspect may not be an issue for acquiring PR under EU law. And there's still the matter over whether the OP and partner have CSI or not, to support application as self-sufficient.
All in all - this definitely needs formal lawyer overview.

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