European Union (EEA National & EU Citizens)

Key areas of work undertaken include:

European Union Citizens and their Family Members

Applications by European Union Citizens and their family members can be complex, due to the interaction between different levels of European law and the UK transposition and interpretation of its own obligations.

Registration Certificates for EEA nationals who are jobseekers, workers, self-employed persons, self-sufficient persons or students:

Registration certificates are issued to EEA nationals who are qualified persons. Qualified persons include a jobseeker, a worker, a self-employed person, a self- sufficient person or a student, and those who have retained the right of residence after ceasing employment and self-employment.

The Immigration (EEA) Regulations 2006 was recently amended by regulations introduced in 2014, which came into force on 1 July 2014 and apply to the period of time spent as a jobseeker after 31 December 2013. The effect of the amendment is that where a jobseeker has previously enjoyed a right to reside in that capacity for six months, it will only be possible to enjoy jobseeker status following a period of absence from the UK. A former jobseeker who has been absent from the UK for less than 12 months may only enjoy a period of jobseeker status if they are able to provide compelling evidence of a genuine prospect of engagement from the outset. A former jobseeker who has been continuously absent from the UK for more than 12 months will be able to enjoy a fresh period of residence as a jobseeker without being subject to the compelling evidence from the outset. It remains to be seen whether these provisions are consistent with EU law.

From 20 June 2011, applications from EEA nationals seeking documentation confirming their right to reside in the UK as a student or self-sufficient person must present evidence to demonstrate that they are covered by comprehensive sickness insurance. In Ahmed v SSHD (2014) EWCA Civ 988, the Court of Appeal held that the condition could not be satisfied by an entitlement to NHS care. This is a subject of ongoing litigation.

Family Permits and Residence Cards for Family Members who are not EEA nationals:

An EEA family permit is issued to non-EEA family members of EEA nationals wishing to travel with or to join an EEA national residing and exercising their treaty rights in the UK. The permit is issued ahead of a person’s travel to the UK and is valid for 6 months and is free of charge.

A residence card is issued to a person who is not an EEA national in the UK and is the family member of an EEA national who is residing and exercising their treaty rights in the UK or who has the right to permanent residence.

There is a distinction between immediate and extended family members. Immediate family members include the spouse or civil partner of the EEA national, their direct descendants under 21 or who are dependent on them and their dependant direct relatives in the ascending line. Extended family members include other relatives of the EEA national, their spouse or civil partner who resides or resided in the same country, other than the UK, as the EEA national and is dependent on the EEA national, or a member of his household; the partner with whom the EEA national has a durable relationship; or a relative of the EEA national, their spouse or civil partner who on serious health grounds strictly requires the personal care of the EEA national or member of his household.

The question of who is a dependant relative is a subject of continuous litigation. In Pedro (2009) EWCA Civ 1358, the Court of Appeal said that dependant direct descending/ascending relatives can establish their dependency in the host country. Therefore, they can be dependent even if they were not dependent prior to their entry into the host member state. Dependant extended family member on the other hand, must show dependency on the EEA national before entry into the host member state (VN (Macedonia) (2010) UKUT 380).

Permanent Residence for EEA nationals and their family members:

A document certifying permanent residence is issued to an EEA national who has resided in the UK and exercising their treaty rights as a worker, a self-employed person, a self-sufficient person or a student for a continuous period of five years. A permanent residence card is issued to a non-EEA national family member who has resided in the UK with the EEA national for a continuous period of five years in accordance with the Regulations or to a non-EEA national family member who has resided in the UK for a continuous period of five years in accordance with the Regulations, and who was at the end of that period a family member who has retained the right of residence.

The question of who has retained right of residence on termination of marriage is a complex area which has generated much litigation. In OA (EEA – retained right of residence) Nigeria (2010) , the Upper Tribunal found that the operative date was the date of termination of the marriage, since until that point, a spouse was still a spouse (Diatta (1985) EUECJ R- 267/83). In Amos v SSHD (2011) EWCA Civ 552 (12 May 2011), the Court of Appeal affirmed the date of termination of the marriage as being relevant. In order to acquire the right of permanent residence after marriage breakdown, an applicant must show that their spouse was a worker, a self-employed person or had sufficient resources, including comprehensive sickness insurance to avoid unduly burdening the social assistance system until the date of the divorce. This is often problematic for an applicant who may find it extremely difficult to obtain the relevant documentary evidence from their former spouse.

For the purpose of acquisition of permanent residency, complications may arise with regard to whether EEA nationals and their family members have resided in the UK in accordance with Directive 2004/38 and the EEA Regulations 2008 for a consecutive period of 5 years. In Dias (2011) EUEJ C-325/09 (21 July 2011), the CJEU stressed that the existence of a residence card or registration certificate was insufficient to demonstrate 5 years continuous residence. The documentation had only declaratory effect and thus it is for the applicant to demonstrate that they fulfilled the 5 year lawful residence in accordance with the regulations.

Derivative right of residence under EU Law:

Regulation 15A of the immigration (EEA) Regulations 2006 confers a derivative right to reside on persons claiming a right of residence on the basis of the Court of Justice of the European Union decisions in Ibrahim (C130/08) and Teixeira (C480/08), Chen (Case C 200/02) and Zambrano (C34/09).

A person may qualify for a derivative right of residence in one of the following categories:

• As the primary carer of a British Citizen child or dependant adult, where requiring the primary carer to leave the UK would force the British citizen to leave the EEA. Financial support alone will not bring a person within the definition of primary carer. In cases where the British Citizen is a child under the age of 18, primary responsibility will generally be established where the child is living with the primary carer and the majority of their care is being provided for by the primary carer.
• As the primary carer of an EEA national child who is exercising free movement rights in the UK as a self-sufficient person where requiring the primary carer to leave the UK would prevent the EEA national child exercising those free movement rights. The EEA national child must have adequate funding and comprehensive sickness insurance for their family members as well as for themselves.
• As the primary carer of a child of an EEA national worker/former worker where the child is in education in the UK, and where requiring the primary carer to leave the UK would prevent the child from continuing their education in the UK or
• As the dependent child aged under 18 years of a primary carer in one of the categories set out above, where requiring the dependent child to leave the UK would force the primary carer to leave the UK with them. A child of an EEA national who has worked in the UK, and who was in the UK while that child was in education in the UK, will therefore be entitled to a right of residence to allow them to complete their education should the EEA national either leave the UK or no longer have a right to reside under the Regulations.

Derivative Right of Residence is not a Free Movement Right. This means that the recognition of this right by the UK is not equal to rights under the Directive. Recognition of a derivative right does not result in the beneficiary of that right being treated as a qualified person for the purposes of the regulations and therefore such a person cannot sponsor family members under the regulations. Further, the recognition of such a derivative right does not attract the public policy protection against removal from the UK that is given to those exercising free movement rights or to the beneficiaries of the right of permanent residence. Time spent in the UK with a derivative right of residence does not count as residence for the purpose of acquiring permanent residence in the UK. Derivative rights of residence only arise where the person in question has no other right to reside.

A person who meets the criteria for a derivative right of residence qualifies for a right of admission to the UK, a right to an EEA family permit and a right to a derivative residence card.