General Guidance On The Eea Rules

This is intended to be a brief and general guide to the European rules, it does not cover all situations. It is not legal advice and does not replace legal advice. It is not intended to be relied on and should not be relied on. I am not a solicitor or an OISC registered immigration advisor. In case of questions about status under the European rules and/or about applications, consulting official sites such as those linked above and taking advice is strongly recommended.

EEA NATIONALS LIVING IN THE UK

EEA nationals may enter the UK with a valid passport or ID card and may remain for three months. For longer stays it is necessary to be a qualified person, ie. to exercise treaty rights. This means one (or more) of the following apply:

-employment
-self-employment
-study with sufficient funds and comprehensive sickness insurance other than NHS coverage
-self-sufficiency with comprehensive sickness insurance other than NHS coverage
-seeking employment, registration with the job centre would be advisable.

There is no set definition of sufficient funds. Where this applies, amounts highter than social security levels for the EEA national and any family members are usually sufficient and lesser amounts can be sufficient however the matter can be more involved.
See the pinned threads on comprehensive sickness incurance for more on that topic.

EEA nationals do not have to do anything to remain in the UK exercising treaty rights as the right of residence is automatic when treaty rights are exercised. However they may apply for a registration certificate with form EEA1 if they wish to have documentation of their right of residence.


NOTE: A8 AND A2 NATIONALS

Nationals of A8 countries employed in the UK must register on the WRS, worker registration scheme, unless excempt and must remain registered during the first twelve months of employment in the UK. (The WRS will cease to apply in May 2011.) This is not described further here, see links above.

Nationals of A2 countries require authorisation to take employment unless excempt. There is more than one way to acquire this and they are not described further here, see links above.

A8 and A2 nationals are free to exercise other treaty rights. The HO does not consider jobseeking a treaty right in these cases but A8 or A2 nationals may be self-sufficient persons when doing so.


FAMILY MEMBERS OF EEA NATIONALS

Family members are defined as spouse, civil partner, children of the EEA national or their spouse/civil partner under 21, children of the EEA national or their spouse/civil partner over 21 who are dependent and parents of the EEA national or their spouse/civil partner if they are dependent. Family members have an automatic right of residence, however where dependency is a requirement it must be shown.


FAMILY MEMBERS IN THE UK

Family members have a right of residence if the EEA national has a right of residence. They may apply for a residence card using form EEA2. This application may be submitted any time. It is advantageous to do so in order to be able to show a right of residence, for example when seeking employment, returning to the UK after travel or dealing with any government authorities.


FAMILY MEMBERS OUTSIDE THE UK

Family members who don't have a residence card need to apply for an EEA family permit to enter the UK. This is effectively a visa but named differently and not to be confused with visas under the national immigration rules. If the family members are non-visa nationals they may enter the UK without an EEA family permit however if the immigration officers know or suspect that the family member is not a visitor (staying for less than six months and not residing or working in the UK) then there is a significant risk of denial of entry, hence an EEA family permit should be sought anyway. It is applied for using form VAF5 at the nearest VAC (visa application centre). In many places the application must be submitted online. The holder must enter the UK with or after the EEA family member. Once holders have arrived, they are in the same position as family members in the UK, see above.


FIANCES

Fiances are not family members under the European rules. If a fiance is resident in the UK with leave to remain, there is no impediment to getting married whilst that leave to remain is valid, currently a certificate of approval is required from the HO. If the fiance does not have leave to remain, a COA can be applied for but there is a risk of enforcement action until married, or the fiance can leave the UK and apply for a fiance visa from their country of citizenship, or the couple can marry in another country and the non-EEA spouse could apply for an EEA family permit as above.


PARTNERS OTHER THAN SPOUSES AND CIVIL PARTNERS

In this case, the UK national rules apply to definitions and proof of the relationship. It is necessary to cohabit with the EEA national in a relationship akin to marriage for two years and prove this when submitting the application. Such applicants are extended family members rather than family members under the European rules. That means that their status is not automatic. If they are outside the UK they can apply for an EEA family permit as above and after arrival must apply for a residence card whilst the EEA family permit is valid. If they are inside the UK and have leave to remain they can apply for a residence card. If they are inside the UK and do not have leave to remain a residence card can be refused for this reason, in which case the partner would need to leave the UK and apply for an EEA family permit.


OTHER RELATIVES

Other relatives such as siblings, cousins, aunts, uncles are extended family members. There are provisions for them to join the EEA national if certain criteria are met including dependency and a need for the EEA national's assistance, or a need for personal care by the EEA national, or previous but continuing or recent membership of the EEA national's household in another state. Being more complex, these situations are not considered further here.


CONTINUING RIGHT OF RESIDENCE

The right of residence of EEA nationals and any family members continues automatically as described above as long as the EEA national remains a qualified person, ie. exercising treaty rights. Involuntary unemployment does not always mean that the EEA national has ceased exercising treaty rights. Public funds are possible under some circumstances. Neither EEA natioanls nor their family members lose their right of residence by not having residence documentation issued by the Home Office or by virtue of it expiring. If it was not issued or has expired an application can be submitted anytime.


IF THE EEA NATIONAL LEAVES THE UK

If the EEA national leaves the UK, family members may remain if they are undertaking a course of education or they have custody of a child of the EEA national who is in education in the UK. Otherwise the right of residence os generaly lost but taking advice may be beneficial.


SEPARATION

Separation from an EEA national does not result in spouses losing their right of residence. The same conditions apply as above, namely that the EEA national is in the UK exercising treaty rights.


DIVORCE

Non-EEA family members may remain in the UK upon divorce if
-the couple were married for three years before divorce proceedings were initiated and
-the could lived in the UK for one year before divorce proceedings were initiated and
-the non EEA national is, upon and after divorce, employed or self-employed or a self-sufficient person (comprehensive sickness insurance is required in the latter case).

Non-EEA family members may also remain in the UK upon divorce if they have custody of a child of the EEA national and are, upon and after divorce, employed or self-employed or a self-sufficient person (comprehensive sickness sinurance is required in the latter case).

Under the same conditions, non-EEA family members may be able to remain in the UK if they have access to a child of the EEA national and the court orders that this access is to take place in the UK.


PARTNERS WHO BREAK UP

Unmarried partners who break up with an EEA national partner will lose their right of residence. The same applies if a residence card expires as the right of residence for partners is not automatic. Hence a new one should be applied for if a current one will expire imminently.


OTHER SITUATIONS

Children over 21 and parents can lose their right of residence if they are no longer dependent. Extended family members can lose their right of residence if they cease to be dependent and meet all criteria that applied when they were granted a residence card. They should ensure that they have a valid residence card at all times because as extended family members their right of residence is not automatic. Advice should be sought if applicable.


PERMANENT RESIDENCE

EEA nationals who exercise treaty rights for five years become permanent residents automatically at that point provided that there were no excess absences. Residence is not broken by absences of less than six months in any twelve month period or by a single absence of up to twelve months which is due to pregnancy, illness, vocational training or an overseas posting. Proof would be required. They may apply for a document certifying permanent residence with form EEA3. It is not compulsory but would be advantageous as it shows that the holder no longer needs to be a qualified person to reside in the UK.

Family members of EEA nationals acquire permanent residence automatically when they have resided in the UK as a family membe of an EEA national for five years, the same rules on absences apply. It does not matter whether or when a residence card was issued. Previous residence with leave to remain under the national rules does not count. Family members may apply for a permanent residence card using form EEA4 and it is advantageous as it shows that the holder may remain in the UK without needing to be a family member of an EEA national and for the same reasons as holding a residence card.

Holders of permanent residence lose this status if absent from the UK for longer than two years.


NOTE ON LEAVE TO REMAIN AND THE EEA RULES

Permanent residence is settled status in the UK, like ILR, indefinite leave to remain. Therefore permanent residents are in a very similar position to ILR holders within the UK. However it is a different status from ILR and neither EEA nationals nor their family members can or need to apply for ILR.

UK residents with leave to remain who become a family member of an EEA national may be better off continuing with their existing immigration route, especially if they are close to being able to apply for ILR. This could be done by not applying for a residence card and abiding by the terms of the leave to remain.

It is possible to switch into the European rules inside the UK but it is not possible to apply for leave to remain within the UK whilst resident under the European rules.


NOTE ON BRITISH CITIZENS

British citizens are not EEA nationals for the purpose of the European rules. That means that their family members don't qualify and need to apply under the national rules.

There is a possible exception if the British citizen is exercising economic treaty rights in another EEA state whilst they and their family members live there.

If British citizens also have another EEA citizenship their family members can be granted EEA family permits and residence cards under the European rules. However there have been instances of this being refused and one such case is pending before the European Court of Justice, which will probably rule against this practice and may or may not cause the Home Office to change its practice.


Resources(Useful Links)

GENERAL

Applying under European law (includes application forms)

Making your application

Guide EEA

European Casework Instructions

Worker Registration Scheme (for A8 nationals, the countries which joined the EU in 2004)

Bulgarian and Romanian nationals

NON-EEA FAMILY MEMBER APPLICANTS OUTSIDE THE UK

EEA and Swiss nationals - visa application guide

EEA Family Permits

LAW

The Immigration (European Economic Area) Regulations 2006

Directive 2004/38/EC

EU

Right of Union citizens and their family members to move and reside freely within the territory of the Member States

Living and working in the Single Market

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