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OTS Blog – Entering the UK As An EEA Citizen or Family Member

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UK Government Crack-downs Set To Ramp Up

The Conservative government has sought to squeeze and narrow rights of EEA citizens and their non-EEA family members over the last few years. It has done so by introducing policies and legislation which makes it more difficult every year for EEA citizens to come to the UK with their families and exercise their EU treaty rights to work and settle.

However, although narrowing the rights of EEA migrants to enter the UK can be frustrating, a series of regulations and policies have been introduced to restrict circumstances where family members of EEA citizens can join their spouse, parent, child, etc who is settled in the UK.

In this new series of blogs, we will examine the various ways family members of EEA citizens’ free movement rights are being curtailed by stealth, and the strong legal arguments and grounds on which individuals may have if they find their application to enter or remain in the UK has been refused.

The Principles of EU Free Movement

Free movement is one of the four principles that underpin the single market doctrine of the EU. The UK joined the European Economic Community, as it was then known, with effect from 1st January 1973, and since that date nationals from various European countries and certain members of their family have had the right to enter and reside in the UK subject to certain conditions and limitations. These rights and limitations have been set out in the Treaty establishing the European Economic Community 1957 (Rome) and its successor treaties, and in directives and regulations made under the treaties.

The main principles governing free movement are now found in the Treaty on the Functioning of the EU 2008.

EEA Immigration did not become a political or social issue until 2004 when the “A8" Eastern European nations joined the EU. The spike in numbers from less economically-developed A8 countries into the UK has been the catalyst for justification by both law makers and courts to tightening up the rules on EU migration to the UK. This has been further exacerbated by the accession of Bulgaria and Romania.

Entry into the UK for Family Members of EEA Citizens

The key EU instrument governing EU free movement law is Directive 2004/38/EC (the Citizens' Directive).

The rights of free movement conferred by the Citizens' Directive are available in full to:

  1. nationals of EU member states who move to, or reside in another member state, and
  2. their 'family members' as defined in Article 2(2), who accompany or join them, being their:

a) spouse

b) registered partner, where the member states treat the registered partnership as akin to marriage

c) direct descendants who are under 21 or who are dependent on them or on their spouse/partner, and

d) direct relatives in the ascending line who are dependent on them or on their spouse/partner.

Under the EEA Regulations 2006, a family member of an EEA national should be admitted to the UK on production of a valid passport together with an EEA family permit, residence card, derivative residence card or permanent residence card issued by the UK.

Residence Card

If you are from a country outside the EEA, a Residence Card can permit you to take up work, run a business, assist you in applying for certain benefits and help you re-enter the UK more easily after being overseas. If you are an ‘extended family member’ of an EEA citizen residing in the UK, you must apply for a Residence Card. An extended family member is a family member who is a relative for the EEA national or their spouse or civil partner such as their sibling or a cousin, dependant parents, but in accordance with the EEA Regulations there is no limit as to the distance of the relationship, as long as it can be proven there is a relationship between them. An ‘extended family member’ therefore is not the same as a ‘family member’ and thus the definition of each is found in different parts of the EEA Regulations.

A Residence Card is issued for five years, after which, you can apply for a permanent residence Card.

Family Permit

A Family Permit is a document for nationals that live outside the European Economic Area (EEA) but have a family member living in the UK who is an EEA citizen. The non-EEA national will need to be journeying with the EEA national or joining them in the UK. In the UK, a Family Permit is issued under the Immigration (European Economic Area) Regulations 2006 (UK).

The UK Border Agency has been accused of violating EU law by denying Family Visas for reasons that are not permitted under the Citizens’ Directive, for example, taking into consideration the ‘economic climate in the UK’ and declaring marriages ‘shams’ without making proper inquiries and obtaining supporting evidence for their allegations.

Derivative Residence Card

You’re eligible for a Derivative Residence Card if you’re living in the UK and you are:

  • the primary carer of someone who has the right to live in the UK
  • the primary carer’s child
  • the child of a former European Economic Area (EEA) worker and you are attending school, college or university in the UK

It is not necessary to obtain a Derivative Residence Card if you fall into one of the above categories; however, it will make it easier to re-enter the UK when you go overseas and help you access services and benefits from your local authority.

You will be able to stay in the UK for as long as the individual you are caring for remains a resident.

Retained Right of Residence

You can apply for a Retained Right of Residence if you have been married to an EEA national and the relationship has ended in divorce, involved domestic violence, or your spouse has died. You can also apply if you have a child in education in the UK, and your partner has died or left the UK and the child continues at school.

Additional requirements are needed if you ended the relationship with the EEA national or you are divorced.

There have been repeated incidences of the UK Border Agency frustrating the process or flat-out refusing to grant the above four entry cards, often expressly in violation of the Immigration (European Economic Area) Regulations 2006, and Citizens' Directive. It is, therefore, imperative to obtain experienced Immigration legal advice from an Immigration Solicitor to ensure your application is not refused and to achieve the best outcome. Because, as you will see in our second blog on this series, if the application is refused, you will not necessarily be able to appeal on a separate argument to remain in the UK such as Human Rights ground Article 8 to respect family life in the UK. This has been illustrated in the new case by the Upper Tribunal released this week, Mirteymour and others (EEA appeals; Human Rights) [2015] UKUT 466 (IAC).

To find out about the applications, process and procedures of EEA Immigration, please phone us on 0207 936 9960. Our highly experienced Immigration solicitors would be happy to discuss your case on the phone and advise you on your position at a cost effective price.

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