Under the current immigration rules, EEA nationals and British citizens have to rely on different sets of rules to have third-country national family members join them permanently in the UK. Arguably, it is easier to enter the UK as a family member of an EEA national than as a family member of a UK national. Almost any relative can enter under the EU rules but not under the UK rules.
When family members wish to join an EEA national who is exercising Treaty rights in the UK, they can do so by invoking their rights under EEA law. Family members coming to join a British citizen or settled person (ie a person with indefinite leave to remain) have to satisfy the provisions of UK immigration law. There are different procedures, rules and costs involved for those wishing to have their family join them in the UK under these two very distinct categories.
Who are the core family members?
EU
Under EEA law, the core family members are spouses or civil partners, children under 21, children over 21, parents and grandparents provided the last three are financially dependent on the EEA national or their spouse / civil partner.
EU law also recognises other persons as extended family members such as durable partners and generally any relative who is a member of the household or is dependent on the person with the primary right of residence, ie the EEA national or their spouse civil partner. EEA law does not recognise fiancés as family members although they could arguably be considered extended family members if they can show they have been in a durable relationship with the EEA national. Any relatives that require care due to serious health grounds can be considered extended family members. EEA law is more flexible than UK law as to who is regarded as a family member.
UK
UK immigration law on the other hand has two main categories of family migration: family life as a partner or parent.
Partners range from fiancés, unmarried partners, spouses and civil partners. Children must be under 18.
Parents who wish to come to the UK to look after their minor child receive a higher level of protection under UK national law than EEA law as the latter only confers derivative rights of residence which do not lead to permanent residence after 5 years and can also be lost when the child reaches the age of 18. On the other hand, a parent of a child under UK national law can be given leave with a 5-year route to settlement (indefinite leave to remain).
EU citizens – Right to enter and remain in the UK with family
Family members of EEA nationals can be admitted without any prior entry clearance and if they are already in the UK, they can assert their right to remain here under EEA law irrespective of their immigration status. However, it is possible to apply for an EEA family permit outside the UK or an in-country EEA residence card to acquire documentation that confirms their right and in practice many people do so to ease their passage in and out of the UK.
EEA applications from family members submitted outside the UK are free of charge and are also considered with priority by the UK Home Office. In-country EEA applications cost £65 pounds but can take up to 6 months to be considered.
UK citizens
Partners of British citizens or settled persons have to satisfy an extensive list of requirements to qualify for leave under this route which includes suitability, language proficiency, evidence of the family relationship and the “infamous” financial requirement. If they are applying for leave inside the UK, their immigration status will also be taken into consideration as they cannot make such applications if they are here illegally, as visitors or with leave that is valid for 6 months or less unless they are in the UK with a 6-month leave as fiancés or proposed civil partners.
Applications from family members of British citizens or settled persons outside the UK are significantly more expensive, ranging from £1,195 – £1,700 depending on the location and optional priority services purchased plus heath surcharge costs of approximately £600 per person. In-country applications range from £811 to £1,311 depending on whether optional priority service is purchased plus health surcharge costs.
The McCarthy effect
EEA nationals who have been exercising Treaty rights in the UK and who meet the residency requirements are now considering to apply for permanent residency and potentially British citizenship, especially since the UK is in the process of leaving the EU and there is a great deal of uncertainty.
As explained in a previous blog (link attached), EEA nationals and their family members who have acquired permanent residence status and are in possession of a permanent residence card can apply to naturalise as British citizens. Caution should be taken when considering the option to naturalise, as dual British and EEA nationals cannot invoke rights under EEA law to protect the status of their family members following a judgment of EU’s highest court in McCarthy (Case C-434/09), unless they exercised Treaty Rights in another EEA state as a worker or self-employed person before returning to the UK (aka the Surinder Singh principle).
By extension, once EEA nationals naturalise as British citizens, their family members can no longer benefit from EEA law from the date of the naturalisation ceremony. This may prove problematic particularly for family members who did not join the EEA national in the UK at the same time and as such have not completed the qualifying period for permanent residence. Even if family members are in possession of a 5-year EEA residence card and the EEA national naturalises before the family members complete their 5 years, their residence rights under EEA law will lapse automatically, regardless of having a valid residence card, as such rights are not dependent on the existence of a permit but are acquired and lost automatically by operation of law.
EEA nationals who wish to apply for permanent residence and naturalisation should contact us for further advice to discuss the available options for them and their family. The rights granted by EU law are likely to change as a result of Brexit.
Demetris Demetriou
