As a member of the European Union (EU), the UK permits nationals of other EU member states to enter the UK in exercise of their right of free movement within the EU zone. The EU nationals and their family members have the right to live and work in the UK if the EU national is a ‘qualified’ person in the exercise of their treaty rights under the Immigration (European Economic Area) Regulations 2006 (EEA Regulations).
There has been no change to the rights and status of EU nationals in the UK, and UK nationals in the EU, as a result of the referendum.
Family members of EEA citizens enjoy the right of admission to the UK without leave to enter or remain providing they can prove their relationship to an EEA citizen. Normally this will be done though a passport and an EEA family permit, family residence card or permanent residence card.
Member States are compelled to give a person claiming to be a family member without these documents every reasonable opportunity to obtain the relevant documents or have them brought to him or her or to prove by other means that he or she is indeed a family member.
Family members enjoy the same right of initial residence for a period of three months as EEA citizens (without the right to be accompanied by family members).
A family member wishing to travel to the UK can apply to an Entry Clearance Officer (ECO) for a family permit, which will considerably ease passage into the UK. The application is free and the permit must be issued as soon as possible if the person qualifies.
An extended family member is subject to an extensive examination by the ECO, whereas an immediate family member need only furnish evidence of the qualifying relationship with the qualified person and of the fact that the qualified person is or will soon be entitled to reside in the UK under the terms of the Directive.
Family members also enjoy a right of extended residence while they remain the family member of a qualified person. They can apply for a residence card.
The family members of qualified persons enjoy the same rights to take up activities in Member States. The children of nationals of a Member State who are or who have been employed in the territory of another Member State are entitled to that State’s general educational, apprenticeship and vocational training courses under the same conditions as a national. The child of a national of one Member State who resided in the territory of another Member State may not claim the benefit of that Regulation where a parent no longer residing in the host Member State, last resided there as a worker before the birth of the child.
Family members may be accompanied by their own children who are under 21 or are dependent or by their own direct dependent relatives in the ascending line. However, any of these family members do not have any right under EC law to be accompanied by other family members (e.g. a spouse or civil partner). They would need to rely on the UK immigration rules, which would be difficult as it cannot be said that a person reliant on EEA freedom of movement rights is present and settled in the UK (one of the requirements for most family applications) until that person has acquired the right of permanent residence, usually after five years.
Retention Of Rights
There are very particular circumstances where the family member will be considered to retain rights of residence despite ceasing to be the family member of a qualified person. Call us for further advice should this be of concern to you.
EEA decisions are treated as immigration decisions and attract a right of appeal to the First Tier Tribunal.
An appeal may not be brought by a person claiming to be a family member or relative of an EEA national if he cannot produce an EEA family permit or other proof that he is related to an EEA national as claimed.
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