Right of Return: Surinder Singh

BACKGROUND

Since 2017 the right of UK nationals returning with non-UK family members has been a source of concern. While completely within the gift of the UK, and outside the remit of the Withdrawal Agreement, it became clear that this was an area where the Government intended to level down rather than maintain our existing rights.

This came to fruition with the passing of the UK Immigration Bill which strips us of our ‘Surinder Singh’ rights to return with non-UK family members. Instead, from 30 March 2022, we will come under tough British immigration rules, meaning that we will have to earn £18,600 a year to be able to sponsor our partner and our partner's income will only count if s/he has been earning in the UK for more than six months.

When we moved to the EU/EEA we did so expecting to keep our rights for life and, if necessary, to be able to return to Britain with our non-UK families. Our loss of this right could make it impossible, for those of us with family members of a different nationality, to go back to look after elderly parents - unless we are prepared to live apart from our partners – or retire to the UK. While Britons legally resident in the EU before the end of the transition period will face these restrictions, EU citizens who have moved to the UK before 1 January 2021 will not. Under the Withdrawal Agreement EU citizens can bring existing family members to the UK for life, as well as keeping their right to return to their country of birth with the families they have made in their new homes. The perverse result is that the UK Government's approach discriminates against its own citizens.

While we successfully lobbied for a grace period, the three-year period we won started a long time before the end of the transition period on the date that the UK should have left the EU and not the date on which the rules changed (1 January 2021). No allowances have been made for the current pandemic. In reality, we have been granted a 15-month window not the promised 3 years’ grace period.

SPLIT FAMILIES

Families are being split and placed in an impossible position while waiting for many months for the Home Office to process EU SS family permits for non-UK family members to enter the UK. Given the backlog already building, it is imperative that the grace period is extended, particularly given the current pandemic.

We have written two letters:

1) To the FCDO

Requesting that they review current cases, some of which were featured in the Guardian article:

“During the passage of the Immigration Bill, your ministerial colleagues, Kevin Foster, MP, and Baroness Trafford, gave assurances to other MPs and peers that such families would be covered by the grace period and that their futures were safe. Quite clearly, this is not the case.

We are asking you as the Minister for European Neighbourhood and the Americas with responsibility for the UK community in the EU to intervene with Kevin Foster MP to ensure that UK citizens seeking to return to the UK with non-UK family members by taking advantage of the grace period will have their applications processed fairly and quickly. Families should not be separated, particularly not in a pandemic. Promises were made and should be honoured. In particular, clear guidance on the rules would be a good start.“

2) To the Home Office

“We are glad to hear that the system will provide for the possibility of applicants showing reasonable grounds why they were not able to apply before the deadline and that this could include where the person was prevented by the COVID-19 pandemic from returning to the UK earlier.

However, unfortunately you have not responded to the key points that we raised. In particular, the central point is very simple: the grace period commenced before the rules changed, rather than on 1 January 2021, which is in contrast to all other grace periods for EU citizens in the UK and UK citizens in the EU. This means that the grace period is in practice only 15 months and not three years as promised. Further, the complexity and lack of clarity of the process makes it very difficult for UK citizens into the EU to take concrete advantage of this window of 15 months. We note that we have only this month sent further correspondence to the FCDO seeking clarity on guidance and responses received from your department via them.

These circumstances effectively amount to a breach of the promise of a three-year grace period made to British in Europe and UK citizens in the EU.

We appreciate that your primary concern is to ensure that our rights are reduced to the same level as those of other UK citizens and their families in the long term but a fair grace period for this group of UK citizens should only commence when the rules changed, which was 1 January 2021. This would at least alleviate the distress of some families who may need to return at short notice to the UK to care for elderly or sick relatives in the next 2.5 years, particularly given the context of the COVID-19 pandemic.“

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TIMELINE: ADVOCACY ON FAMILY REUNIFICATION RIGHTS OF RETURNING CITIZENS

From 2017 - in parallel with lobbying on the Withdrawal Agreement, British in Europe consistently raised the issue of returning UK citizens and family reunification at meetings and when making presentations/speeches in the UK. Both sides confirmed that Surinder Singh rights were not covered by the Withdrawal Agreement and thus lobbying was directed at the UK government.
Summer 2017 - Detailed discussion of the issue in a meeting with DExEU, FCO and Home Office officials
August 2017 – issue raised in joint BiE /t3m response to the second round of negotiations
September 2017 – raised in the BiE/t3m joint response to round 3 of the negotiations
September 2017 – Issue raised during joint BiE/t3m mass lobby of UK Parliament on citizens’ rights
October 2017 – family reunification raised in the joint response to round 4 of the negotiations
November 2017 – raised in joint Phase 1 review circulated to both sides of the negotiations
December 2017 – raised as part of the communication ‘Where does the December agreement leave me?’
December 2017 – Issue raised in written evidence to House of Lords EU Justice Sub-Committee following oral evidence in October 2017
January 2018 – Issue raised in joint BiE/t3m document “Reflections on Phase 1 and Considerations for Phase 2 of the Negotiations” sent to each side
February and March 2018 – issue raised at meetings in London with MPs including Chair of HoC Exiting the EU Select Committee, Hilary Benn and by email to MPs
June 2018 – Issue raised in written evidence to HoC Exiting the EU Select Committee
August/September 2018 – Raised again as part of joint BiE/t3m ‘Last Mile’ lobbying campaign on citizens’ rights
October 2018 – Joint BiE/t3m Surinder Singh rights briefing, urging both sides to guarantee these rights
November 2018 - Issue raised during joint BiE/t3m mass lobby of UK Parliament on citizens’ rights and included in detail in briefing to MPs
February 2019 – Issue raised Briefing Note to Committee on Immigration & Social Security Coordination Bill
April 2019 – UK policy paper confirms three-year grace period as regards Surinder Singh rights
July 2019 – Issue included in the oral and written evidence to Exiting the EU Select Committee
October 2019 – House of Lords EU committee wrote to DExEU re right of return
November 2019 – included in letter to the new Prime Minister, Boris Johnson
December 2019 – Issue included in written House of Lords Select Committee evidence
June 2020 – Briefing of the Commons on the requested amendment to the UK Immigration Bill
July 2020 – Briefing of the Lords on the requested amendment to the UK Immigration Bill
October 2020 – UK Immigration Bill – lobbied for amendment to retain Surinder Singh rights for those covered by the Withdrawal Agreement
October 2020 – Letter to Priti Patel, Home Office Secretary of State, re right of return
May 2021 – Letter to Priti Patel re grace period
August 2021 – Follow up letter to Home Office Minister Kevin Foster re grace period
August 2021 – Letter to FCDO Minister Wendy Morton re case studies