If you are a national of a country that falls within the European Economic Area (EEA), or a national of Switzerland, you automatically have the right to live, work and study in the UK. As such you do not need to make an application for permission to enter or remain in the UK under the five-tier points-based system or otherwise.
The EEA comprises of the following countries: Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, the Republic of Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the UK. Although Iceland, Liechtenstein and Norway are not members of the European Union (EU), their citizens have the same rights as EU citizens to enter, live and work in the UK. Further, Switzerland is not a member of the EEA but its nationals also have the same rights as EEA nationals.
As of 1 January 2014, Bulgarians and Romanians have acquired the same rights to work in the UK as other EU citizens. Whilst they gained the right to visa-free travel to the UK in 2007 when their countries joined the EU, there were temporary restrictions on the kind of jobs they could take. These have now been removed.
REGISTRATION CERTIFICATE – even with free movement, as an EEA national there are certain circumstances where you might want to apply for a registration certificate to confirm your rights of residence under European law.
EEA FAMILY PERMIT – if you have non-EEA family members who are subject to immigration control, they may need to apply for an EEA family permit before coming to the UK either on a temporary or long-term basis. An EEA family permit is a form of entry clearance to the UK and is designed to make movement around the member states easier for non-EEA family members.
The European law definition of a family member is considerably wider than under the UK Immigration Rules and includes spouses, civil partners, partners in a durable relationship (cohabited for at least 2 years) and children under 21 (the rules governing EEA family permits are stipulated by European Law). It may also be possible to bring dependent parents, grandparents and extended family such as siblings and cousins to live in the UK, although where the EEA national is a student they may only be joined by their partner and dependent children.
Comprehensive Sickness Insurance for family members of EEA students
From the 22 June 2015, all family members of EEA students residing in the UK will be required to hold Comprehensive Sickness Insurance(CSI). When applying for immigration permission as a family member of an EEA student, you will need to show that you have held CSI from the 22 June 2015 or the date of entry to the UK, whichever is later.
Immigrating to the UK as a family member of an eligible EEA national is a 2-stage process. The family member must first apply for entry clearance to classify as an eligible immigrant then once in the UK, the EEA family permit holder can apply to confirm their right of residence under European Law provided all other criteria are met. This residence card is usually valid for 5 years. After you have lived in the UK for a continuous period of 5 years with your EEA or Swiss national family member, you may be able to apply for confirmation of your right to permanent residence.
In order to remain in the UK, the EEA national must have exercised their treaty rights through employment, self-employment, self-sufficiency or study.
Whilst most EEA-based applications do not carry a fee they can still be complex and here at Khan Associates, we can advise as to whether you or a family member is eligible and help to prepare an application on your behalf.
Retaining Right Of Residence
Directive 2004/38 has incorporated ECJ case-law such as Baumbast and Diatta to allow non-EEA nationals family members to retain the right of residence.
There are now a number of circumstances in which non-EEA national family members of EEA nationals may retain their right of residence in the UK if the EEA national leaves the UK or dies or the relevant marriage or civil partnership is terminated. These circumstances are set out in regulation 10 of the 2006 Regulations.
Family member who has retained the right of residence
10.—(1) In these Regulations, “family member who has retained the right of residence” means, subject to paragraph (8), a person who satisfies the conditions in paragraph (2), (3), (4) or (5).
(2) A person satisfies the conditions in this paragraph if—
(a) he was a family member of a qualified person when the qualified person died;
(b) he resided in the United Kingdom in accordance with these Regulations for at least the year immediately before the death of the qualified person; and
(c) he satisfies the condition in paragraph (6).
(3) A person satisfies the conditions in this paragraph if—
(a) he is the direct descendant of—
(i) a qualified person who has died;
(ii) a person who ceased to be a qualified person on ceasing to reside in the United Kingdom; or
(iii) the person who was the spouse or civil partner of the qualified person mentioned in sub-paragraph (i) when he died or is the spouse or civil partner of the person mentioned in sub-paragraph (ii); and
(b) he was attending an educational course in the United Kingdom immediately before the qualified person died or ceased to be a qualified person and continues to attend such a course.
(4) A person satisfies the conditions in this paragraph if the person is the parent with actual custody of a child who satisfies the condition in paragraph (3).
(5) A person satisfies the conditions in this paragraph if—
(a) he ceased to be a family member of a qualified person on the termination of the marriage or civil partnership of the qualified person;
(b) he was residing in the United Kingdom in accordance with these Regulations at the date of the termination;
(c) he satisfies the condition in paragraph (6); and
(i) prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration;
(ii) the former spouse or civil partner of the qualified person has custody of a child of the qualified person;
(iii) the former spouse or civil partner of the qualified person has the right of access to a child of the qualified person under the age of 18 and a court has ordered that such access must take place in the United Kingdom; or
(iv) the continued right of residence in the United Kingdom of the person is warranted by particularly difficult circumstances, such as he or another family member having been a victim of domestic violence while the marriage or civil partnership was subsisting.
(6) The condition in this paragraph is that the person—
(a) is not an EEA national but would, if he were an EEA national, be a worker, a self-employed person or a self-sufficient person under regulation 6; or
(b) is the family member of a person who falls within paragraph (a).
(7) In this regulation, “educational course” means a course within the scope of Article 12 of Council Regulation (EEC) No. 1612/68 on freedom of movement for workers .
(8) A person with a permanent right of residence under regulation 15 shall not become a family member who has retained the right of residence on the death or departure from the United Kingdom of the qualified person or the termination of the marriage or civil partnership, as the case may be, and a family member who has retained the right of residence shall cease to have that status on acquiring a permanent right of residence under regulation 15.
Residence Card As Family Member Of An EEA National [Form EEA (FM) Application]
If a citizen of the European Economic Area (EEA) or Switzerland is living in the UK in accordance with the Immigration (European Economic Area) Regulations 2006, their family members who are not EEA or Swiss citizens also have the right to live in the UK.
If you are the non-European family member of an EEA or Swiss national, and you have come to the UK with them, you can apply for a residence card. This is a document which confirms your right of residence under European law. Your residence card may take the form of an endorsement in your passport (also called a ‘vignette’), or it may be a separate document called an ‘immigration status document’. A residence card is normally valid for 5 years from the date when it is issued.
The applicant must submit a valid passport for the application for residence card to be approved. Also, the EEA national must be exercising treaty rights in the UK and evidence of the same must be submitted with the application. According to EEA Regulations 2006, the Home Office is legally bound to consider and decide an application for residence card within 6 months from the date of receipt of the application. Any delay or negligence in part of the Home Office in not deciding the application within six months can be challenged by way of Judicial Review in High Court.
Permanent Residence Card Application As An EEA National Or A Family Member Of An EEA National
An EEA national and his/her family members who have resided in the UK for five years continuously in accordance with the EEA Regulations 2006 can apply for Permanent Residence in the UK. Such application is made under Regulation 15 of the EEA Regulations 2006. The application form EEA (PR) is completed to submit an application for permanent residence as an EEA national or as a family member of an EEA national.
Extended Family Members
Extended family members’ is defined in Regulation 8 as meaning:
- more distant family members of the EEA national or of his spouse / civil partner who can demonstrate that they are dependant
- partners where there is no civil partnership but they can show that they are in a “durable relationship” with the EEA national.
For extended family members only the following conditions in relation to dependency must be satisfied:
- The extended family member must have established his/her dependency on the relevant EEA national in the country from which the EEA national moved to the UK. This is consistent with the wording of Article 3(2) of the Directive, which states that the person must be a dependant of the EEA national in the country from which they have come;
- The dependency must have existed immediately before or very recently before the EEA national came to the UK; and
- The extended family member must have come to the UK at the same time as the EEA national or just before or very recently thereafter.
Article 3(2) of the Free Movement Directive provides for Member States to facilitate entry and residence, in accordance with their national legislation, for
- “any other family members, irrespective of nationality, not falling under the definition in point 2 of Article 21 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen”; and
- “the partner with whom the Union Citizen has a durable relationship, duly attested.”
Under Regulation 8 there are four kinds of extended family member:
- a person who is a relative of an EEA national or his/her spouse or civil partner and who is financially dependent on the EEA national or is a member of his/her household, and who either (i) is accompanying the EEA national to the UK / wishes to join him there, or (ii) has joined him in the UK and continues to be dependent on him or to be a member of his/her household;
- a person who is a relative of an EEA national or his/her spouse or civil partner and, on serious health grounds, strictly requires the personal care of the EEA national or his/her spouse or civil partner;
- a person who is a relative of an EEA national and would meet the requirements of the Immigration Rules (other than those relating to entry clearance) for ILR as a dependent relative of an EEA national were the EEA national a person present and settled in the UK;
- a person who is the partner of an EEA national (other than a civil partner) and can prove that he is in a durable relationship with the EEA national.
Until an applicant is recognised as an extended family member and issued with a residence card (or EEA family permit or registration certificate) he has no rights deriving from EU law.
Surinder Singh route for spouses and families of British citizen
This immigration route, named after a person who filed a court case, can be used by non-EU family members of British citizens to secure a UK visa. This route is for British Citizen who move to an EEA member state and establishes himself/herself socially and economically by exercising treaty rights for a reasonable period of time and if wishes to return back to UK, his/her family member (non-eea spouse and children) can accompany him/her; however; the following points must be taken into consideration for those who successfully want to follow this route.
1) A British citizen must have gone and worked in another EU member state (or be self-employed) before returning to the UK.
2) ‘Centre of life’ must have been transferred to that EU member state. There is no exhaustive list but examples would be: renting a place to live or buying a property (as opposed to staying at a hotel), enrolling a child to school, learning language etc.
3) In case of spouses and civil partners, both UK and non-EU spouse/civil partner must have lived together in that EU member state and been married before returning to the UK.
4) However, the above does not apply to other family members, for example, children over 21 years old or dependent parents.
5) Parents and grandparents have to be dependent, which means financially relying on the Sponsor for their essential living needs.
This is very different from the Immigration Rules (ie a UK law, not EU law) which only allow bringing a parent to the UK if he/she requires long-term day-to-day care and such care is not available in the country of residence (or not affordable).
7) Dependency under the EU law is that of fact, the reasons for dependency are not relevant. For example, if a family member can work but chooses not to and depend on an EEA national instead, this would be acceptable (in principle).
8) Surinder Singh route can now also be used by the extended family members and people who are in durable relationships in an unmarried partnership.
Please bear in mind the following while making the application using Surinder Singh Route.
1. Residence in a member state must be for a reason not just because to use this route to bring family members.
2. Weekend visits and holidays do not count as residence for this purpose
3. During the period of residence, family life must have been “created or strengthened”
5. Abuse is impermissible
For further information, you can book an appointment for a detailed consultation.