This right is based on EU case law (the Surinder Singh case) that provides that when EU citizens (and their family members) exercise a right to move to another Member State under EU law, their right to return to their country of nationality also comes under EU law.
Currently, EU national family members of a British citizen (e.g. a partner) can come to the UK in their own right, under EU free movement of people rules.
This case law therefore gives non-British family members of British citizens a legal route of entry to the UK outside of the UK’s Immigration Rules. However, the EU-UK Withdrawal Agreement does not preserve this right. This means that existing non-British family members of British citizens currently living in the EU will come within the scope of the UK’s family visa requirements after the end of the Brexit transition period (assuming the future EU-UK partnership agreement does not provide otherwise).
The Government has indicated that these changes won’t come into effect until 30 March 2022. But campaigners (including British in Europe) are concerned that some families will struggle to satisfy the UK’s visa requirements and will therefore be unable to return to the UK with their family.
This case law therefore gives non-British family members of British citizens a legal route of entry to the UK outside of the UK’s Immigration Rules.
The UK’s eligibility criteria for a spouse/partner visa, for example, include a minimum income requirement requiring the visa applicant to demonstrate available maintenance funds equivalent to a minimum gross annual income of £18,600 (with very prescriptive rules about what sources of income and funding are acceptable).
At Lords Report stage of the UK Immigration Bill, Peers therefore voted for a non-government amendment that would give this group of British citizens a lifetime right to return to the UK with family members under the current, EU free movement of people terms. However, given the Government’s current position and its large majority in the House of Commons, the latter has rejected this House of Lords amendment.
The UK Immigration Bill forms the legislative basis for the new points-based immigration system that is set to come into effect on 1 January 2021 but that has been heavily criticised by campaigners, unions and business organisations. During these challenging times, the Bill brings uncertainty for many, including British citizens and their non-British family members.
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